Master Terms of Service
READ THESE TERMS OF SERVICE (THIS “AGREEMENT”) CAREFULLY BEFORE CONTINUING REGISTRATION OR OTHERWISE USING THE SERVICES. BY ACCEPTING THIS AGREEMENT THROUGH AN ORDER FORM OR OTHER DOCUMENT THAT INCORPORATES THIS AGREEMENT (THE “ORDER FORM”), BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, OR BY OTHERWISE USING THE SERVICES, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.
The parties agree as follows:
“You” and “your” refers to (i) the individual or entity that has ordered Services from Provider by executing an Order Form that accompanies and incorporates this Agreement; or (ii) any other individual or entity that accesses or uses the Services. “Services” means the services and software (including any third party software) Customer has a Subscription (defined below) to pursuant to an Order Form or has otherwise been authorized to use or access. “User” means an individual who is authorized by you to use the Services and to whom you have, or Provider at your request has, supplied User Credentials. “Provider” means the entity with which you enter into an Order Form for the Services.
2. USE OF SERVICES.
- 2.1 Use. Subject to the terms and conditions of this Agreement, you and your Users shall have the nonexclusive, non-assignable, limited right to access and use the Services you have purchased through an Order Form or otherwise, solely for your internal business operations. You may allow Users to use the Services for this purpose and you are responsible for your Users’ compliance with this Agreement. This Agreement is in addition to the other terms and conditions of, or incorporated into, the Order Form, if any; provided, however, in the event of a conflict between this Agreement and any other terms and conditions, this Agreement shall control and provided, further, nothing in any other terms and conditions shall limit or otherwise modify the terms of this Agreement. Upon the termination or expiration of this Agreement or the Services thereunder, your right to access or use the Services shall terminate.
- 2.2 Registration. To access and use the Services, you must have an active subscription for the Services (a “Subscription”). Upon the establishment of a Subscription, an administrator user name and password is generated (“Admin Credentials”). By logging in to the Services with such Admin Credentials, you can create and administer one or more user accounts for its Users, each with a unique user name and password (“User Credentials”). Admin Credentials and User Credentials are jointly referred to as “Credentials”. The Credentials are used to authenticate the User and thereby allow access to the Services, including any of your data stored as part of the Services. You are solely responsible for maintaining the confidentiality of the Credentials and may not transfer or share the Credentials with any third parties. You acknowledge and agree that Provider and its licensors and suppliers may rely on the Credentials as the sole test to control whether users accessing and using the Services on your behalf are authorized to do so. You are fully liable for any act or omission of any users that access or use the Services with the Credentials or otherwise through your account. You will: (a) notify Provider immediately of any unauthorized use of any Credentials or account or any other known or suspected breach of security; (b) not impersonate another user or provide false identity information to gain access to or use the Service; and (c) be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership and right to use all data submitted by you in the course of receiving the Services.
- 2.3 Use Restrictions. You may not:
- remove or modify any program markings or any notice of Provider’s or its licensors’ proprietary rights;
- make the Services, or any materials relating thereto, available in any manner to any third party for use in the third party’s business operations other than as otherwise expressly agreed upon between the parties;
- modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services;
- access or use the Services in order to build or support, or assist a third party in building or supporting, products or services competitive to the Services;
- license, sell, rent, lease, transfer, assign, distribute, display, host, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, or related materials, available to any third party unless approved in writing by Provider;
- except as expressly provided herein, copy, reproduce, distribute, republish, download, display, post or transmit the Services, or any portion thereof, in any form or by any means; or
- attempt to gain unauthorized access to the Services or related systems or networks.
- 2.4 Protection against Unauthorized Use. You will use your best efforts to prevent any unauthorized use of the Services and will immediately notify Provider in writing of any unauthorized use that comes to your attention. If there is unauthorized use by anyone who obtained access to the Services directly or indirectly through you, you will take all steps reasonably necessary to terminate the unauthorized use. You will cooperate and assist with any actions taken by Provider to prevent or terminate unauthorized use of the Services.
3. TERM; Termination.
- 3.1 Term. The term of this Agreement shall commence on the effective date set forth in the initial Order Form and continue until the expiration or termination of all outstanding Order Forms. The term of each Order Form shall be as set forth in such Order Form, and such term shall automatically renew for an unlimited number of renewal terms equal to the original term of the Order Form, unless either party provides the other party with written notice of its intention that such Order Form terminate and not renew at least 20 days prior to the expiration of the then current term. If neither party gives written notice of its intention that such Order Form terminate by the deadline set forth above, the term shall automatically renew for the period as set forth above.
- 3.2 Termination. You agree that Provider may terminate or suspend your account and access to the Services upon notice to you for any of the following: (a) breach or violation of this Agreement or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) unexpected technical issues or problems, (e) extended periods of inactivity; or (f) failure to pay any fees owed for the Services. Termination includes removal of access to all offerings within the Services and may also bar you from further use of the Services. Furthermore, you agree that all terminations shall be made in Provider’s sole discretion and that Provider shall not be liable to you nor any third-party for any termination of your account or access to the Services.
- 3.3 Effect of Termination. Upon expiration or termination of the Agreement, all rights to access or use the Services terminate. All provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement shall survive the termination or expiration of this Agreement.
4. USER OBLIGATIONS AND WARRANTIES.
- 4.1 Acceptable Use Policy; Digital Millennium Copyright Act. You agree to the terms of the Acceptable Use Policy set forth at [http://axcient.com/acceptable-use-policy-for-axcient-products-and-services/] and the DMCA Policy set forth at http://axcient.com/dmca-policy/. The Acceptable Use Policy and DMCA Policy are subject to change at Provider’s discretion. Your continued access or use of the Services following posting of the revised Acceptable Use Policy or revised DMCA Policy shall constitute your acceptance of the changes. If you do not agree to such changes, you must terminate your access and use of the Services and notify Provider.
- 4.2 Compliance. You will abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Services (e.g. privacy and security laws and regulations, CAN-SPAM ACT, copyright laws, international communications, and the transmission of technical or personal data). You agree to provide any notices and obtain any consents related to your use of the Services, including those related to the collection, use, processing, transfer and disclosure of personal information.
- 4.3 Information Provided to Provider. You represent and warrant that you own and control all of the rights to the information and materials that you store, post or transmit through the Services, or you otherwise has the right to use such information and materials; and the use of the information and materials you supply does not violate this Agreement, will not violate any rights of or cause injury to any person or entity, and will not otherwise create any harm or liability of any type for Provider or for third parties. You understand that all information publicly posted or privately transmitted through the Services is your sole responsibility and that Provider will not be liable for any errors or omissions in any content.
- 4.4 Technical Requirements. You must have the required equipment, software, and Internet access to be able to use the Services. Acquiring, installing, maintaining and operating equipment and Internet access is solely your responsibility. Provider neither represents nor warrants that the Services will be accessible through all web browser releases or all versions of computing devices. If the Service is repeatedly unable to communicate with Provider’s and its licensor’s activation server, the Services may deactivate.
5. Intellectual Property Ownership AND RIGHTS. Provider, and its licensors and providers, own all right, title and interest, including all related intellectual property rights in and to the Services, Provider’s (and its providers’) trademarks, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Services. You retain all ownership and intellectual property rights in and to your data. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of your data. You grant Provider a worldwide, limited right and license to host, copy, transmit, view, modify, reformat, translate, transfer and display your data as necessary or appropriate for Provider to provide the Services in accordance with this Agreement.
- 6.1 Provider Indemnity. Provider or its licensors or providers will defend you against any claims, actions, suits, demands, obligations, and proceedings (“Claims”) made or brought against you by a third party alleging that the use of the Services in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights, and will indemnify you from any damages, attorney fees and costs finally awarded against you as a result of, or for amounts paid by you under a court-approved settlement of, any such Claim. If Provider receives information about an infringement or misappropriation claim related to the Services, Provider may in its discretion (i) modify the affected Services so that they no longer infringe or misappropriate, (ii) obtain a license for your continued use of the affected Services in accordance with this Agreement, or (iii) terminate your rights to the affected Services and refund to you any unused prepaid fees covering the remainder of the term of the terminated Order Forms. This Section states Provider’s sole liability to you, and your exclusive remedy against Provider, for a claim of infringement or misappropriation.
- 6.2 Indemnity by You. You will, at your expense, defend, indemnify, and hold harmless Provider and its affiliates and licensors and suppliers, and their respective employees, officers, directors, suppliers, providers, licensors and agents (“Provider Indemnitees”) from and against any and all Claims of any kind threatened, asserted, or filed against Provider Indemnitees, and any and all damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees, witness fees, and court costs) incurred in connection with such Claims, arising out of or relating to (a) a breach by you or a User of this Agreement; (b) any actual or alleged infringement or violation of any copyright, trademark, trade secret, or other proprietary right of a third party; (c) any act or omission by you or anyone acting on your behalf; or (d) your data.
- 6.3 Procedure. The indemnifying party’s obligations in Section 6.1 and 6.2 are subject to the party seeking to be indemnified: (a) providing the other party reasonably prompt notice in writing of any such Claim; (b) providing the other party information, assistance, and authority, at the indemnifying party’s expense, to help the indemnifying party to defend such Claims; and (c) giving the other party sole control of the defense and settlement of the Claim. The indemnifying party will not have any right, without the indemnified party’s written consent, to settle any such Claim if such settlement arises from or is part of any criminal action, suit, or proceeding or contains a stipulation to or admission or acknowledgment of, any liability, infringement, blame, or wrongdoing (whether in contract, tort, or otherwise) on the part of the indemnified party or otherwise requires the indemnified party to take or refrain from taking any material action (such as the payment of fees).
7. Disclaimer of Warranties. USER UNDERSTANDS AND AGREES THAT THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PROVIDER AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PROVIDER AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT THAT (a) THE SERVICES WILL MEET USER’S REQUIREMENTS, (b) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (c) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. YOU ACKNOWLEDGE THAT PROVIDER DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. PROVIDER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. You acknowledge that the Services may contain technology that is not fault tolerant and is not designed, manufactured, or intended for use in environments or applications in which the failure of the Services could lead to death, personal injury, or severe physical, property or environmental damage. You agree not to use the Services in such environments.
8. Limitation of Liability.
- 8.1 Limitation of Remedy. TO THE EXTENT PERMITTED BY LAW, PROVIDER AND ITS LICENSORS AND SUPPLIERS WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO USER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
- 8.2 Maximum Liability. TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL PROVIDER’S OR ITS LICENSORS’ OR SUPPLIERS’ TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF (A) AMOUNTS PAID TO PROVIDER BY YOU FOR THE SERVICES IN THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM AND (B) US $100.
- 8.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY PROVIDER TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
9. CONFIDENTIALITY; PRIVACY; SECURITY.
- 9.1 Confidentiality. Each party may disclose to the other party certain Trade Secrets and Confidential Information of such party or of such party’s associated companies, distributors, licensors, suppliers, or customers. For purposes of this Agreement, “Trade Secrets” means information that is a trade secret under law; “Confidential Information” means information, other than Trade Secrets, that is of value to its owner and is treated as confidential; “Proprietary Information” means Trade Secrets and Confidential Information; the “Disclosing Party” refers to the party disclosing Proprietary Information hereunder, whether such disclosure is directly from Disclosing Party or through Disclosing Party’s employees or agents; and “Recipient” refers to the party receiving any Proprietary Information hereunder, whether such disclosure is received directly or through Recipient’s employees, providers or agents. Subject to Section 9.2, Recipient agrees to hold the Proprietary Information disclosed by Disclosing Party in confidence and not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary Information disclosed by Disclosing Party to any third party, or utilize the Proprietary Information disclosed by Disclosing Party for any purpose whatsoever other than as expressly contemplated by this Agreement. You acknowledge that the Services and related materials are the Proprietary Information of Provider or its licensors and other providers. The obligations in this Section shall continue for so long as such information constitutes Proprietary Information. The foregoing obligations shall not apply if and to the extent that Recipient establishes that the information communicated was publicly known at the time of Recipient’s receipt or has become publicly known other than by a breach of this Agreement.
- 9.2 Disclosures Required by Law. You acknowledge and agree that Provider may have to provide your Proprietary Information or other data or information if Provider or its licensors or providers are ordered by an administrative agency or other governmental body of competent jurisdiction to disclose such information.
- 9.4 Data Privacy; Security. You acknowledge and agree that the Services may include the storage and processing of personal data that may be subject to mandatory legislation, such as the EU General Data Protection Regulation 2016/679 and other legislation which aims to prevent the violation of personal integrity in the processing of personal data (as amended, the “Personal Data Act”). You will always be considered as the controller of personal data provided by you or Users even if the processing is carried out by Provider or its providers. Provider and its providers engaged for the storage and other processing of data are considered your data processors (personal data assistants) and it is your sole responsibility to ensure that such processing of personal data is in compliance with the Personal Data Act and other applicable legislation. You will promptly notify Provider if its or its providers’ processing of personal data is subject to legislation which is not based on the Personal Data Act. If a provision under the Personal Data Act or other legislation would confer responsibility or liability directly on Provider or its providers to ensure compliance with such legislation, Provider is unwilling to grant any access to the Services and you must cease access to and use of the Services immediately and notify Provider thereof. Provider acknowledges that the security of the personal data and other data belonging to you is important. Provider and its providers will take reasonable steps to help ensure the safety of your data in compliance with the Personal Data Act, if applicable. However, no password-protected system of data storage and retrieval can be made entirely impenetrable and you therefore acknowledge and agree that the Services are not invulnerable to all security breaches or immune from viruses, security threats or other vulnerabilities.
10. EXPORT. You shall not, without prior written consent, if required, of the office of Export Administration of the U.S. Department of Commerce, or other applicable U.S. governmental agency or department, export, re-export, allow the re-export, transship, download, or transmit any of the Services or any other technical materials (collectively, “Export Materials”) to any country (“Restricted Nation”), person or entity to which such transmission is restricted by applicable regulations or statutes, including to any individual, group or organization on the U.S. Department of Treasury’s Office of Foreign Assets Control’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Bureau of Export Administration’s List of Denied Persons, as each may be amended from time to time, including any of your end users. You represent and warrant that you and each of your employees, contractors, agents, and consultants who has access to the Export Materials (i) is not an individual located in a Restricted Nation; (ii) is not a business or organization owned, controlled by or acting on behalf of an individual, business or organization in a Restricted Nation; (iii) is not a government of a Restricted Nation; (iv) is not a business or organization owned, controlled by or acting on behalf of a government of a Restricted Nation; and (v) is not an individual, group or organization on the U.S. Department of Treasury’s Office of Foreign Assets Control’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Bureau of Export Administration’s List of Denied Persons. You will defend, indemnify, and hold Provider, and its directors, employees, shareholders, agents, suppliers, or representatives harmless from and against any and all losses, damages, costs, and expenses, including legal fees, incurred directly or indirectly as a consequence of your failure to comply with this Section.
11. United States Government Restricted Rights. All Services, including software from its licensors and suppliers, are commercial in nature. The Software and Documentation are “Commercial Items”, as that term is defined in 48 C.F.R. section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are defined in 48 C.F.R. section 252.227-7014(a)(5) and 48 C.F.R. section 252.227-7014(a)(1) and used in 48 C.F.R. section 12.212 and 48 C.F.R. section 227.7202, as applicable. Consistent with 48 C.F.R. section 12.212, 48 C.F.R. section 252.227-7015, 48 C.F.R. section 227.7202 through 227.7202-4, 48 C.F.R. section 52.227-14, and other relevant sections of the Code of Federal Regulations, as applicable, the Software and its Documentation are licensed to the United States Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in this Agreement and the applicable end user license agreements.
12. Arbitration. The parties shall settle any dispute, claim or controversy arising out of this Agreement, and including any dispute as to the enforceability of this arbitration provision, by arbitration in Denver, Colorado in accordance with the Commercial Arbitration rules of the American Arbitration Association. After a demand for arbitration, the Parties shall attempt to agree upon a single arbitrator to arbitrate the dispute. If the Parties do not agree upon an arbitrator within thirty (30) days of the applicable demand for arbitration, then the parties agree that the dispute shall be arbitrated before a single arbitrator appointed by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitrator may award injunctive relief, actual damages, and attorneys’ fees and costs as part of the award, but shall have no authority to award any penalties or any special, consequential, punitive, or exemplary damages or to alter or modify any express provision of this Agreement or to render any award which by its terms affects such a modification or alteration. The award of the arbitrator shall be final and binding and may be entered as a judgment in any court of competent jurisdiction, including either of the two courts referred to in Section 13 of this Agreement. The Parties consent to the jurisdiction of such courts referred to in Section 13 for such purpose.
Notwithstanding the foregoing, nothing in this Section 12 shall preclude a party from seeking and obtaining injunctive relief in either of the two courts referred to in Section 13, or in any other Court having jurisdiction where Provider is the Party seeking the injunction, based upon a breach of this Agreement or facts arising out of this Agreement where such party does not have an adequate remedy at law.
13. GENERAL. Provider may audit your use of the Services. You agree to cooperate with Provider’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with your normal business operations. You agree that Provider shall not be responsible for any of your costs incurred in cooperating with the audit. Provider will be and act as an independent contractor (and not as your agent or representative) in the performance of this Agreement and no joint venture, partnership, or agency relationship exists between the parties. Provider may utilize subcontractors or other third parties to perform its duties under this Agreement. You may not assign this Agreement or give or transfer the Services or an interest in them to another individual or entity. All notices, authorizations, and requests in connection with this Agreement will be deemed given: (a) three days after they are deposited in the U.S. mails, postage prepaid, certified or registered, return receipt requested; (b) one day after they are sent by air express courier, charges prepaid; or (c) on the day of transmittal if sent by facsimile or by email, in each case to such address as the party to receive the notice or request so designates by written notice to the other. Provider will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Provider’s reasonable control. This Agreement is governed by and construed in accordance with the laws of the State of Colorado without regard to conflict of laws principles. The parties agree that the United States District Court for the District of Colorado shall have jurisdiction, subject only to the limitations of that jurisdiction, over any disputes arising from this Agreement which are not subject to arbitration in accordance with Section 12 of this Agreement. If that court lacks jurisdiction, the parties agree that jurisdiction shall be with the District Court of Denver County, Colorado. Both parties hereby consent to the jurisdiction of such Courts and agree that such Courts shall have exclusive jurisdiction for such disputes, unless they decline to accept jurisdiction of such matters. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. This Agreement will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party. This Agreement will be construed as though all parties had drafted it. This Agreement (including the Order Form and other information and other agreements incorporated into this Agreement by reference) is the final and complete expression of the agreement between these parties regarding the Services. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. Provider will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement that is proffered by you in any receipt, acceptance, confirmation, correspondence, or otherwise.