Terms of Service
Last modified: January 2, 2024
Introduction
Thank you for your commitment to smarter maintenance and energy management! Axiom Cloud Inc. (“Axiom Cloud,” “we,” “us,” or “our”) provides (1) hardware products or devices (“Products”); (2) the Axiom Cloud website located at https://www.axiomcloud.ai and all associated accounts linked to https://www.axiomcloud.ai (“Website”); and (3) subscription software-as-a-service (including the Customer Web Portal), software residing on the Products, hardware installation services, and associated services (collectively, “Paid Services” and together with the Website, “Services”).
These Terms of Services (“Terms”) are a legal agreement that apply to (i) visitors to the Website (“Site Visitors”); and (ii) individuals or entities, and their authorized users, that have been granted a license to use the Paid Services and/or have purchased Products (collectively, “Customers”). Site Visitors and Customers are collectively referred to herein as “Users” (or, individually, “you”).
By using the Products and Services, you are accepting and agreeing to these Terms on behalf of yourself or the entity that you represent in connection with the access and use. You represent and warrant that you have the right, authority and capacity to accept and agree to these Terms on behalf of yourself or the entity that you represent. This Website is offered and available to users who are 18 years of age or older and you represent that you are 18 years or older. If you do not agree with any of the provisions of these Terms, you should disconnect your Products from the Services and cease accessing or using the Products and Services.
These Terms, the Website Privacy Policy (“Website Privacy Policy”), and, if you are a Customer, the terms in your Axiom Cloud Proposal(s), and any schedules, exhibits, or addendums attached thereto (collectively, the “Proposal”) constitute the agreement between you and Axiom Cloud (the “Agreement”).
Updates to Terms
We may revise these Terms or any additional terms and conditions that are relevant to a particular Product or Service from time to time to reflect changes in the law or to the Services. We will post the revised terms on the Website with a “last updated” date. Those revised terms become part of these Terms. It is your responsibility to review the Website on a regular basis to obtain timely notice of any revisions. If you continue to use the Products or Services after the revisions take effect, you are thereby bound by these Terms as revised. Any future release, update or other addition to functionality of the Products or Services shall be subject to these Terms, as revised.
Accounts
To use the Products or Services, you may be required to register for a user account (“Account”) and provide certain information, either through the Website or directly to us, about yourself or the entity that you are representing in connection with the Products or Services. You represent and warrant that: (a) all required registration information that you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Products and/or Services will not violate any US or other applicable law or regulation (e.g., you are not located in an embargoed country and are not listed as a prohibited or restricted party under applicable export control laws and regulations). You are entirely responsible for creating secure Account login information and maintaining the confidentiality of your Account login information and for all activities that occur under your Account. We are not liable for any loss or damage arising from your failure to comply with the above requirements.
Access to Services
Access and Use of Services
Subject to these Terms, we grant you a non-transferable, non-exclusive right (without the right to sub-license) (i) to access and use the publicly available pages and features of the Website, excluding the Customer Web Portal (the “Visitor Grant”), and (ii) if you are a Customer, to access and use the Products and Services for which you have purchased such rights under an applicable Proposal, during the Proposal Term (the “Customer Grant,” and together with the Visitor Grant, the “Grants”). The Customer Grant shall include a license to use, during the Proposal Term (as defined below), On-Premise Software residing on the Products purchased under such Proposal.
Products
The Products, if any, are initially leased to you at no cost and title to the Products passes from us to you upon your payment of the Product Deployment Fee (as defined below), or if no Product Deployment Fee is included in your Proposal, upon the later of (i) the Service Start Date (as defined below), and (ii) the expiration of the Trial Period (as defined below). In the event that a Proposal is terminated, we have the right, but not the obligation, to retrieve our leased Products from your facility. The Customer Grant shall include a license to use, during the Proposal Term, the software residing on the Products (“On-Premise Software”) purchased or leased under such Proposal. For the avoidance of doubt, and notwithstanding anything to the contrary herein, On-Premise Software is licensed to you and title to On-Premise Software does not pass to you.
Restrictions
You must not (and must not allow any third party to) directly or indirectly: (i) license, sell, rent, lease, transfer, assign, distribute, or host the Services; (ii) modify, make derivative works of, disassemble, reverse-compile, reverse-engineer, decode, or otherwise attempt to gain unauthorized access to any part of the Products or Services; (iii) access the Website or use the Services in order to build a similar or competitive service or product; (iv) except as expressly stated herein, copy, reproduce, distribute, republish, download, display, post, or transmit, any part of the Sites; (v) upload, transmit or distribute any computer viruses, worms or any software intended to damage or alter a computer or communications network, computer, handheld mobile device, data, the Products or Services, or any other system, device or property; (vi) interfere with, disrupt or attempt to gain unauthorized access to the servers or networks connected to the Products or Services or violate the regulations, policies or procedures of such networks; (vii) remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) that may be contained in, or displayed in connection with, the Products or Services; (viii) use the Products or Services except in accordance with these Terms; (ix) use the Products or Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
Paid Services
Ordering Paid Services – Proposal
To order the Paid Services, please contact us and we will provide a Proposal, which will include a summary of the fees, the Proposal Term, the Paid Services to be purchased, the Customer facilities for which the Paid Services will be purchased, and the relevant dates. The Proposal will become binding (the “Proposal Effective Date”) when you and Axiom Cloud have signed the Proposal, or on such other effective date set forth in a mutually signed Proposal. The provisions of the Proposal(s) are incorporated herein, and, in the event of a conflict between the Terms and the Proposal, the Proposal will govern. In the event that you order Paid Services by completing and submitting an online order form through this Site, that online order form will be your Proposal and the Proposal Effective Date will be the date on which you submit the online order form, provided however, that we may, in our sole discretion, reject any online order form within ten (10) business days of our receipt thereof, and such online order form will be void ab initio.
Description of Paid Services
We offer the various subscription services described at https://www.axiomcloud.ai, which may monitor, analyze, adjust, and/or modulate refrigeration systems in order to reduce operational costs, generate new revenue streams, enhance refrigeration system operation, reduce cooling service interruptions, and/or provide other benefits (“Subscription Services”). By purchasing a Subscription Service, you are granted the right to access and use the Axiom Cloud Customer Web Portal (“Customer Web Portal”), located at https://portal.axiomcloud.ai, through which you may view certain information related to the Subscription Services.
From time to time, we may add new Subscription Services or modify the current Subscription Services, including modifications to the Fees. In the event that we modify the Subscription Services during your Proposal Term, resulting in a material decrease in your Subscription Services, we will provide you with advance notice (such notice including updating the Site with a revised description of the Subscription Services) and you will have the right to terminate your Proposal, in which case you will receive a pro-rated refund of any subscription fees (“Subscription Fees”) that may have been paid in advance. Your right to terminate under this paragraph will expire upon the renewal of your then current Proposal Term.
Support Services
We will respond to Customer requests for technical support within 2 business days.
Maintenance
To the extent necessary to maintain the operability of the Paid Services during the Customer Term (as defined below), and only to the extent that the maintenance is not necessitated by your violation of these Terms or changes that you have made to your systems or facilities, we will make enhancements, updates, and bug fixes to the Paid Services.
Cooperation and Consent
You acknowledge that we require certain technical information and other cooperation from you in order to accurately and efficiently provide the Paid Services. During the Service Term (as defined below), you will assign appropriate personnel and resources, and provide us reasonable cooperation, assistance, information and access to your systems, IT networks where relevant systems are connected, and facilities to allow us to provide the Products and Services consistent with these Terms. You agree to obtain, at your sole expense, all necessary permits and licenses necessary for your operation of your facility and the use and installation of the Products at your facility. You understand that the Subscription Services may include automated notifications and you consent to Axiom Cloud sending emails, text messages, push notifications, and making phone calls to you and your authorized users, as may be necessary to provide the Subscription Services. You also understand that the Products and Subscription Services may make changes and provide commands to your refrigeration systems and your facility and you consent to us making such changes and providing such commands, in the course of providing the Subscription Services. You further consent to the installation of software updates onto your Products during the applicable Proposal Term. You agree that during the Proposal Term you will maintain your systems, equipment and facility in such condition and configuration so as to ensure the continued operability of the Products and/or Services and the continued security of your systems, equipment, and facility.
IoT Platform Deployment and Testing
For some Customers, our Subscription Services will require the installation of additional hardware at your facility, including a cloud gateway Product (“Gateway”), a power meter Product (“Meter”), and/or additional Products such as sensors (“Sensors”). Subject to your cooperation, and as may be necessary for us to Provide the Paid Services, one of our team members or subcontractors (collectively, “Product Installers”) will visit your facility to install such Products (the “IoT Platform Deployment”). You acknowledge that the Expected IoT Platform Deployment Date set forth on the Proposal is an estimate and that the actual date of the IoT Platform Deployment (“IoT Platform Deployment Date”), may be earlier or later than such estimate, due to factors including, but not limited to, the availability of Product Installers and Products.
Intellectual Property
Axiom Cloud Property
You acknowledge that all intellectual property rights, including, without limitation, copyrights, patents, trademarks and trade secrets, in the Products and Services, and improvements or modifications thereto, are owned by Axiom Cloud or its affiliates or licensors. Your possession, access to and use of the Products or Services do not transfer to you or any third party any rights, title or interest in or to such intellectual property rights, except that title to Products may transfer to you, subject to these terms. Axiom Cloud, and its affiliates and licensors and suppliers, reserve all rights not granted in these Terms. The Services are licensed to you, not sold, under these Terms.
You may choose to or we may invite you to submit comments, suggestions or ideas about the Products or Services, including how to improve the Products or Services (“Ideas”). By submitting any Ideas, you agree that your submissions are voluntary, gratuitous, unsolicited and without restriction, and will not place us under any fiduciary or other obligation. We may use, copy, modify, publish or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that we do not waive any rights to use similar or related ideas previously known to us, developed by our employees or obtained from other sources. Notwithstanding the provisions of the Confidential Information section of this Agreement, Ideas will not be considered Confidential Information. Any Ideas are provided on an “as-is, where-is” basis.
Data
In order to provide the Products and Paid Services, we collect data about you and your refrigeration systems from your refrigeration controllers, refrigeration system sensors and components, power meters, site and equipment documentation, utility providers, other service providers, and/or directly from you or your agents (collectively, “Customer Data”). You own all right, title, and interest in and to your Customer Data. We also collect data related to your usage of the Products and Services and the performance of the Products and Services (“Usage Date”). We own all right, title, and interest in and to the Usage Data. Notwithstanding anything to the contrary, including the Confidential Information section in these Terms, we shall have the right to: (i) use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for us to provide the Paid Services to you during the Customer Term; (ii) use Customer Data, during the Customer Term and thereafter, to improve and enhance the Products and Services and to derive machine learnings and insights therefrom; (iii) disclose Customer Data, during the Customer Term and thereafter, solely in aggregated or other de-identified form (collectively, “Customer Data License”).
Publicity
If you are a Customer, you give us permission to publicly disclose that we are providing the Services to you, including by using your name and logo in our marketing materials, website, and other documentation related to our potential transactions with third parties.
Confidential Information
Definition of Confidential Information
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data and information regarding Customer’s power usage, facilities, and refrigeration systems; Confidential Information of Axiom Cloud includes information regarding the Services and Products, and all Proposals (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Axiom Cloud services. To the extent that confidentiality obligations exist between the parties prior to the effective date hereof and the confidentiality obligations in this section conflict with such prior confidentiality obligations, the more restrictive confidentiality provisions will govern.
Protection of Confidential Information
The Receiving Party will: (i) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use any Confidential Information of the Disclosing Party for any purpose other than to perform its obligations or exercise its rights under this Agreement; and (iii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of any Proposal to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, we may disclose the terms of this Agreement and any applicable Proposal to a subcontractor to the extent necessary to perform our obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
Compelled Disclosure
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
Return of Confidential Information and Customer Data
Upon request or upon expiration or termination of these Terms for any reason, the Receiving Party will, upon the Disclosing Party’s request: (1) promptly return the Confidential Information to the Disclosing Party, or, at the Disclosing Party’s option, destroy all copies of the Confidential Information and provide a written certification of the destruction; and (2) purge its and its Affiliates’ information systems of all Confidential Information in electronic form, provided however, that we may retain Customer Data in accordance with the Customer Data License. Notwithstanding the foregoing, the Receiving Party may retain copies of Confidential Information that are created pursuant to its standard electronic backup and archival procedures and stored until the ordinary course deletion thereof, in which case, the Receiving Party shall continue to be bound by the terms and conditions of this Agreement with respect to such retained Confidential Information. If you do not request your Customer Data within fifteen (15) days of the expiration or termination of the Customer Term, we may permanently delete your Customer Data.
Term and Termination
Visitor Term
These Terms, as applicable to the Visitor Grant, will remain in full force and effect as long as you continue to access or use the publicly available pages and features of the Website, or until terminated in accordance with the provision of these Terms (the “Visitor Term”). At any time, we may (i) suspend or terminate the Visitor Grant, or (ii) terminate these Terms with respect to the Visitor Grant, if we believe that you have used the Website in violation of these Terms.
Customer Term
The Terms, as applicable to Customers, will become effective on the date that you and Axiom Cloud have signed a Proposal and will expire upon the expiration or termination of all then-current Proposals, unless terminated earlier pursuant to the provisions of these Terms (the “Customer Term”).
Proposal Term
The initial term of each Proposal begins on the Proposal Effective Date and continues until the end of the Initial Subscription Term, as set forth on the Proposal (the “Initial Proposal Term”). The “Initial Subscription Term” shall begin on the earlier of: (i) the date on which commercially beneficial services commence (“Service Start Date”); and (ii) 90 days after the Proposal Effective Date (the “Expected Service Start Date”); and shall expire one (1) year thereafter, unless otherwise set forth in the Proposal. In the event that the Service Start Date does not occur on or Prior to the Expected Service Start Date due to Axiom Cloud delays, the Expected Service Start Date shall be extended by the number of days attributable to such Axiom Cloud delays, in Axiom Cloud’s reasonable discretion. Prior to the Service Start Date, there may be a period of testing during which we test your refrigeration systems and our Products and Services to confirm that the Products and Services are functioning properly. You acknowledge that the Expected Service Start Date set forth on the Proposal is an estimate and that the Service Start Date, may be earlier or later than such estimate, due to factors including, but not limited to, the availability of Product Installers and Products. Upon expiration of the Initial Proposal Term, the Proposal will automatically renew for additional successive one (1) year terms unless either party provides written notice of nonrenewal at least thirty (30) days prior to the end of the then-current term (each a “Renewal Proposal Term” and together with the Initial Proposal Term, the “Proposal Term”), or unless sooner terminated according to these Terms.
Trial Period
With respect to a Proposal, we may offer a trial period, during which Subscription Fees are waived (the “Trial Period”). The Trial Period, if any, begins on the Service Start Date.
Termination for Cause
If either party commits a material breach of any term, condition, or covenant contained in these Terms and/or an applicable Proposal, the non-breaching Party may terminate these Terms and/or the applicable Proposal on written notice to the other party, effective (A) immediately, if the breach is incapable of cure; or (B) thirty (30) days after written notice to the other party if the breach is capable of cure but remains uncured at such time. For the avoidance of doubt, a breach shall include your failure to maintain your equipment and facility in a condition and configuration so as to ensure the continued operability of the Products and/or Services. In addition, either you or Axiom Cloud may terminate these Terms and/or any Proposal(s) immediately upon notice, if the other party: (1) makes a general assignment for the benefit of creditors; (2) files a voluntary petition in bankruptcy or any voluntary proceeding relating to reorganization, insolvency, receivership or liquidation; or (3) becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, unless the petition or proceeding is dismissed or discharged within sixty (60) days of filing.
Termination for Convenience
You may terminate a Proposal for convenience at any time, provided however, you will not be entitled to a refund and you will remain liable for any fees accrued prior to such termination. Axiom Cloud may terminate a Proposal for convenience within the later of (a) fifteen (15) days after the Service Start Date, (b) the expiration of the Trial Period, and (c) forty-five (45) days after the Proposal Effective Date, and in each case, you will receive a full refund of fees paid for such Proposal. Additionally, and without limiting Axiom Cloud’s ability to terminate for breach as set forth above, Axiom Cloud may terminate a Proposal at any time, if Axiom Cloud determines, in its sole discretion, that it is unable to ensure the full operability of the Products or Services with respect to your equipment and/or facilities, in which case, you will receive a pro-rated refund for fees paid in advance.
Effect of Termination
If these Terms expire or are terminated for any reason: (a) all Proposals will immediately be terminated; (b) any and all of your liabilities to Axiom Cloud that have accrued before the effective date of the expiration or termination will survive; (c) the Grants will immediately terminate; and (d) our obligations to provide any further Services to you will terminate. Within 15 days of the termination of a Proposal, you must pay to Axiom Cloud all amounts due and owing under the Proposal. The provisions of these Terms that relate to restrictions on use of the Products and Services, payment of fees and taxes, Confidentiality, Intellectual Property, ownership of the Products and Services, Customer Data, Indemnification, and Limitation of Liability, as well as those provisions that, by their sense and context, are intended to survive performance by either or both parties shall also survive the completion, expiration, termination or cancellation of these Terms. For the avoidance of doubt, if a Proposal expires or is terminated for any reason, the Customer Grant will terminate with respect to the Products and Services purchased under such Proposal.
Fees
Product Deployment Fee
You agree to pay to us the fees for the IoT Platform Deployment and Products, if any, as set forth in your Proposal(s) (collectively, “Product Deployment Fee” and collectively with the Subscription Fee, and all other fees under a Proposal, the “Fees”). The Product Deployment Fee accrues and may be invoiced on the date that you and Axiom Cloud have signed the Proposal. The Product Deployment Fee may be broken into multiple components including but not limited to a fee for each phase of deployment (the “Phase Deployment Fee”), as well as a fee for each facility at which the Products will be deployed (the “Site Deployment Fee”).
Subscription Fee
You agree to pay the Fees set forth in your Proposal(s). Unless otherwise set forth in the Proposal(s), Subscription Fees accrue annually, in advance, and the first Subscription Fee shall accrue and may be invoiced upon the first day of the Initial Subscription Term. In the event of a Trial Period, the Subscription Fee may be reduced or waived during the Trial Period.
Payment; Energy Benefits
All Fees are due within thirty (30) days of your receipt of an invoice from us. All payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments, and you agree to bear and be responsible for the payment of all such charges, excluding taxes based upon our net income. All Fees are in US Dollars unless otherwise set forth in the Proposal(s).
Late Payment
If you fail to pay the Fees within five (5) business days of notice to you that payment is past due or delinquent, we may suspend or terminate your access to the Products and/or Services. Any unpaid overdue fees will be subject to a finance charge equal to one percent (1%) of the unpaid balance per month. You agree to reimburse us for any costs or expenses (including, but not limited to, reasonable attorneys’ fees) that we incur in order to collect Fees not paid when due.
Energy Benefits
From time to time, your use of our Products or Services may result in (a) municipal, governmental, regulatory, utility, state and local rebates, grants, incentives, subsidies or similar financial arrangements (collectively, “Rebates”); (b) payments from third parties related to demand response, grid services, or similar programs (collectively “Demand Response Payments”); and/or (c) environmental attributes or renewable energy credits, including but not limited to, carbon trading credits, emission reduction credits, emission allowances, green tags and tradable renewable credits (collectively “Environmental Attributes” and together with Rebates and Demand Response Payments, “Energy Benefits”). You own all Energy Benefits issued to you. In the event that Energy Benefits are issued to us as a result of your use of our Products or Services, we will, in our sole discretion, either (1) transfer the Energy Benefits to you, or (2) provide fee credits to you in an amount equal to the Value of such Energy Benefits (“Fee Credits”). For purposes of this section “Value” means the value of the Energy Benefits, if we were to use commercially reasonable effort to monetize such Energy Benefits. All available Fee Credits will be automatically applied as payments towards subsequent invoices. Fee Credits will not expire during the Customer Term and may be used to pay for any Fees, however Fee Credits will not have any value after the Customer Term ends and may not be redeemed for cash at any time. Notwithstanding the foregoing, we will not provide Fee Credits with respect to Energy Benefits that cannot be transferred and have de minimis Value.
Limited Warranty and Disclaimer
Limited Warranty
We represent and warrant that the Paid Services and the Products will perform in accordance with all associated documentation on the Website, as such documentation existed at the beginning of your then current Initial Proposal Term or Renewal Proposal Term, and the requirements and specifications set forth in the Proposal(s), during the applicable Proposal Term for such Products or Services (“Limited Warranty”). If we receive a warranty claim, we will, either: (i) repair, replace, or modify the Products or Services, in whole or in part, so that they become conforming; or (ii) if we determine that repair, replacement, or modification is not commercially reasonable, we may terminate the applicable Proposal(s) and issue to you a pro-rated refund (calculated monthly) of amounts you paid in connection with the portion of the Paid Services or Gateway that is non-compliant. Our satisfaction of any of the above options, will satisfy our entire liability to you for any warranty claim and will be your sole and exclusive remedy for such warranty claim.
This warranty does not apply to: (1) your failure to properly protect the Products from damage or weathering; (2) your failure to keep the Products powered with electricity; (3) any use of the Products or Services in any manner not authorized under these Terms; or (4) a lack of access at your facility to an adequate internet connection or cellular data network that is being used for operation of the Products or Services.
Disclaimer of Warranties
EXCEPT FOR THE LIMITED WARRANTY MADE IN THE PARAGRAPH ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, AXIOM CLOUD DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, NOR SHALL AXIOM CLOUD OR ANY OF ITS SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT, OR DESTRUCTION OF YOUR DATA. YOU ACKNOWLEDGE THAT AXIOM CLOUD DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. ALL ESTIMATES OF YOUR POTENTIAL COST SAVINGS RESULTING FROM USE OF THE PRODUCTS OR SERVICES, INCLUDING THOSE MADE IN THE PROPOSAL(S), ORALLY, IN WRITING, OR BY ELECTRONIC COMMUNICATION SHALL NOT BE CONSTRUED AS GUARANTEES. AXIOM CLOUD MAKES NO GUARANTEE OR WARRANTY REGARDING YOUR ULTIMATE COST SAVINGS OR LACK THEREOF.
LIMITATIONS OF LIABILITY
IN NO EVENT SHALL EITHER PARTY OR ITS SUPPLIERS OR REPRESENTATIVES BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR ANY: (A) ERROR OR INTERRUPTION OF USE OR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY OR LOSS OF BUSINESS OR PROFITS; (B) INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES; OR (C) EXCEPT WITH RESPECT TO SUBSECTION (I) AND (II) BELOW, AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO AXIOM CLOUD FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING SET FORTH IN THIS AGREEMENT: (I) ANY LIABILITY, LOSS, OR CLAIM ARISING OUT OF OR IN CONNECTION WITH A BREACH OF THE CONFIDENTIALITY PROVISIONS OF THIS AGREEMENT WILL NOT EXCEED THE EXCLUSION LIMIT (AS DEFINED BELOW); (II) EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT WILL NOT EXCEED THE EXCLUSION LIMIT; AND (III) NO LIMITATION OR WAIVER OF LIABILITY, REMEDY OR EXCULPATION OF EITHER PARTY WILL APPLY TO: (W) CUSTOMER’S OR ITS AUTHORIZED USERS’ UNAUTHORIZED USE OF THE SERVICES; (X) ANY LIABILITY, LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH ANY BODILY INJURY OR DEATH, (Y) ACTS OR OMISSIONS THAT CONSTITUTE WILLFUL MISCONDUCT, GROSS NEGLIGENCE OR FRAUD, OR (Z) CUSTOMER’S OBLIGATIONS TO PAY FEES. “EXCLUSION LIMIT” MEANS THE GREATER OF: FEES PAID BY CUSTOMER TO AXIOM CLOUD FOR THE SERVICES UNDER THIS AGREEMENT IN THE 24 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY; OR $2,000,000.00.
Indemnities
Your Indemnity to Us
You will indemnify, defend and hold us our affiliates, and our and their, employees, officers, directors, agents, successors and assigns, harmless at your own expense, against any and all liabilities, losses, costs, damages and expenses (including interest, penalties and reasonable attorneys’ fees), directly or indirectly relating to any third party claim, demand, or lawsuit arising out of: (1) your use and each of your authorized users’ use of the Products and Services in any way contrary to this Agreement; (2) your violation and each of your authorized users’ violation of applicable laws, rules or regulations in connection with the Products and Services; or (3) alleged infringement or misappropriation of third-party rights by your Customer Data.
Our Indemnity to You
We will defend and hold you and your authorized users, officers, directors, successors and assigns (collectively, “Customer Indemnitees”), harmless at our own expense, against any and all liabilities, losses, costs, damages and expenses (including interest, penalties and reasonable attorneys’ fees), relating to any third-party claim that the Products or Paid Services infringe or misappropriate the intellectual property rights of the third party. Our indemnification obligations do not apply to any such third-party claim based on (1) the use, integration, or combination of the Products or Services, or any portion thereof, with data, software, hardware, equipment, or technology not provided by Axiom Cloud or authorized by Axiom Cloud in writing; (2) the alteration, modification or enhancement, or creation of a derivative work of the Products or Services by you or a third party without our written authorization; or (3) the use of the Products or Services, or our Confidential Information or intellectual property contrary to the terms of this Agreement.
Infringement Claims
If a preliminary or final judgment is obtained against your continued use of the Products or Paid Service, or any part thereof, due to any alleged infringement or violation of a third party’s proprietary rights, or if, in our opinion, the Products or Services are likely to become subject to a claim for infringement, we will, at our sole expense and discretion, either: (1) procure for you the right to continue using the allegedly infringing element of the Products or Services; (2) replace or modify the Products or Services, in whole or in part, so that they become non-infringing, but only if the modification or replacement is functionally equivalent to the allegedly infringing element of the Products or Services; or (3) terminate the applicable Proposal and refund a pro-rated portion of the fees you paid to us for the applicable Product or Service. Our satisfaction of any of the above options, along with performing our defense and indemnity obligations with respect to third-party claims for intellectual property infringement, will satisfy our entire liability to the Customer Indemnitee, for any claim of intellectual property or proprietary rights infringement, and will be your sole and exclusive remedy for any claim for such infringement, notwithstanding anything to the contrary herein.
Dispute Resolution
If a dispute arises out of or relates to this contract, or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration, litigation, or some other dispute resolution procedure. If such dispute is not resolved by mediation, it shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, located at https://adr.org/sites/default/files/Commercial%20Rules.pdf. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Arbitration shall be held in Santa Clara County, California.
Miscellaneous Legal Terms
Neither party may assign this Agreement or any right under this Agreement, without the consent of the other party; provided however, that Axiom Cloud may assign this Agreement to an acquirer of all or substantially all of its assets to which this Agreement relates, whether by merger, asset sale, change of control, operation of law, or otherwise. This Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns. Axiom Cloud may employ subcontractors in performing its duties under this Agreement, provided, however, that Axiom Cloud shall not be relieved of any obligation under this Agreement. At all times, Axiom Cloud is an independent contractor, and is not your agent, representative, or employee.
Except as otherwise permitted in this Agreement, notices under this Agreement shall be in writing and shall be deemed to have been given (a) five (5) business days after mailing if sent by registered or certified U.S. mail, (b) when transmitted if sent by email (with confirmation of transmission), or (c) when delivered if delivered personally or sent by express courier service. All notices sent to Customer shall be sent to the address set forth on the Proposal(s) and all notices sent to Axiom Cloud shall be sent to Axiom Cloud Inc., 6203 San Ignacio Avenue, Suite 110 - #1274, San Jose, CA 95119.
Each party will be excused from performance (except for the obligation to pay Fees) for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics or pandemics, communication line or network failures, and power failures.
This Agreement and the use of the Products and Services will be governed by California law except for its conflicts of laws principles. All remedies set forth in these Terms are cumulative and not exclusive of any other remedies at law or in equity, statutory or otherwise. This Agreement constitutes the entire and exclusive agreement between you and Axiom Cloud with respect to the Products and Services, and supersedes and replaces any other applicable agreements, terms and conditions. This Agreement creates no third-party beneficiary rights. A party’s failure to enforce a provision is not a waiver of its right to do so later. If a provision is found to be unenforceable, the remaining provisions of the Agreement will remain in full effect and an enforceable term will be substituted to reflect the intent of the parties as closely as possible.