AXLE TERMS OF SERVICE
Last Updated: October 18, 2022
Thank you for choosing AXLE, LLC (“we” “us” “our” or “AXLE”) for your business. When you use our products and services you are agreeing to our terms, so please read these Terms of Service (“Agreement”) carefully as they contain important information regarding your legal rights and obligations. Certain capitalized words below are defined in the Definitions Section of this Agreement.
AXLE is a marketing company providing a CRM (customer relationship management) platform for businesses that offers lead management, clients list sorting, 2-way texting, cleaning client data, data analytics, and other services including content retargeting, reputation management, website development, and social marketing (collectively the “Services”). This Agreement applies to any use of and access to the Services by you and your Affiliates. By accessing or using the Services (or enabling an Affiliate to access or use the Services), you are indicating that you have read this Agreement and agree to be bound by its terms. If you do not agree with all of the terms of this Agreement, you may not access or use any Services.
This Agreement is effective (“Effective Date”) on the earlier of (a) the date you accept this Agreement by clicking an “I Agree” button or otherwise indicate that you accept this Agreement (including through an Order Form), or (b) the date you (or an Affiliate) first access or use the Services.
The English language version of this Agreement and any notice or other document relating to this Agreement shall prevail if there is a conflict.
This is a legal agreement, and you represent that you have authority to make these commitments on behalf of yourself and/or your organization.
- This Agreement is a binding legal agreement between you and AXLE. If you enter into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the legal authority to bind that entity and its Affiliates to this Agreement, and all references to “you” and “your” in this Agreement are referring to that entity. You and AXLE are also sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
- 3. This Agreement as well as AXLE’s Services Agreement governs your use of AXLE’s products and services, whether through a paid subscription or a free trial. AXLE’s Services Agreement is included herein by reference as if set forth in this Agreement in extenso. As we update our products and services, or for any other reason at our discretion, we may update this Agreement and/or the Services Agreement. If any updates or changes are material, we will notify you by sending you an email. Any changes we make will become effective when we post a modified version of the Agreement and/or the Services Agreement to https://www.axl3.com/terms. You will always be able to access the current version of this Agreement online. If you continue using the Services after any changes, it means you have accepted the changes. If you do not agree to any changes, you must stop using the Services, and you can terminate your account by submitting a request to email@example.com. It is your obligation to ensure that you read, understand and agree to the latest version of the Agreement and the Services Agreement The legend at the top of the Agreement indicates when it was last changed.
- Your use of and participation in, certain Services may be subject to additional terms, such as the Order Form and Services Agreement (“Supplemental Terms”) and such Supplemental Terms will either be listed in this Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service. If this Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms will control with respect to the service with which it applies.
- Services. The Service Level Agreement in the Services Agreement including, but not limited to, Section 4.3, sets forth our access and downtime obligations for the Services. AXLE will make the Services to which you have subscribed available to you, subject to the terms and conditions of this Agreement and the Services Agreement. During the Subscription Term, as defined in the applicable Order Form(s), the Services will meet the service levels specified in the Service Level Agreement . We may temporarily suspend your access for things like scheduled maintenance, or if a natural disaster occurs. We may also change or discontinue particular features or functions of our Services at any time.
- Changes to Services. In addition to our rights set forth herein, AXLE reserves the right to suspend any Services (a) in connection with a Force Majeure event (as described herein), (b) if we believe any malicious software is being used in connection with your account, or (c) during planned downtime as provided in the Services Agreement. In addition, we reserve the right to change, suspend or discontinue any features, components or functions of the Services at any time. If we make any material changes to the Services, we’ll notify you within the Services, if applicable, or by sending you an email. Notwithstanding the above, we have no obligation to update or enhance any Services or to produce or release new versions of any Services.
- Third Party Products/Third Party Offerings. AXLE is not responsible for any third party products that are integrated with or used in connection with the Services. Although the Services may allow you to access or use Third Party Offerings, they are not “Services” under this Agreement and are not subject to any of the warranties, service commitments or other obligations with respect to Services hereunder. The availability of any Third Party Offerings through the Services does not imply AXLE’s endorsement of or affiliation with the provider. AXLE does not control Third Party Offerings and will have no liability to you or Affiliates in connection with any Third Party Offerings. AXLE has no obligation to monitor or maintain Third Party Offerings and may disable or restrict access to any Third Party Offerings at any time. By using or enabling any Third Party Offering, you are expressly permitting AXLE to disclose Your Data or other information to the extent necessary to utilize the Third Party Offering. YOUR USE OF THIRD PARTY OFFERINGS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY OFFERINGS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY OFFERINGS).
- Support Services. As part of the Services, you will have access to AXLE’s standard support services described in the the Order Form applicable to your subscription. For an additional fee, you may purchase additional support or professional services.
- Marketing Services. As part of the Services, your business may be listed on AXLE’s Services, in our newsletters and marketing materials, and on our partner websites and/or partner mobile applications (the “Partner Network”). From time to time, AXLE may offer subscribers the opportunity to participate in certain promotional programs (“AXLE Promote”), which are designed to promote your business and attract customers. Additional terms specific to the use of such Marketing Services may apply and will be provided to you in the event such offer to participate is made, which may include additional applicable fees.
- Free, Trial, and Beta Services. AXLE may in its sole discretion offer free, trial or beta Services from time to time at no charge. Notwithstanding anything to the contrary herein: (a) any free, trial or beta Services are provided “AS IS” with no warranties of any kind; and (b) AXLE may discontinue any free, trial or beta Services or your ability to use such Services at any time, with or without notice and without any further obligations to you. Without limiting the generality of the foregoing, free Services that have not been accessed or used for 12 consecutive months may be terminated by us. AXLE will have no liability for any harm or damages suffered by you or any third party in connection with any free, trial or beta Services.
- Payment Processing. AXLE offers the ability to process subscription fees through the Services (“Payment Processing Services”). Payment Processing Services are provided by our third party payment processing partners as Third Party Offerings and any procurement by you or your Affiliates will be subject to a separate merchant agreement which will be solely between you (or your Affiliate) and the third party processor. If you use Payment Processing Services you agree that you and your Affiliates will comply with the terms and conditions of any applicable merchant agreements and all applicable card network rules, policies, laws and regulations, at all times while using such Payment Processing Services.
- Liability for Affiliates and End Users. You are responsible for all activity occurring under or relating to your account with AXLE, including, but not limited to, your staff, employees, consultants, advisors, independent contractors, and End Users. You will ensure that your Affiliates and End Users comply with relevant provisions of this Agreement, including the Services Agreement and any Supplemental Terms and acceptable use policies provided or made available by AXLE, and any applicable local, state, national and foreign laws, including those related to data privacy and transmission of personal data, at all times while using the Services. Any reference in this Agreement to your “access” or “use” of Services (or similar phrase) is deemed to include access or use, as appropriate, by Affiliates and/or End Users, and any act or omission of an Affiliate or End User that does not comply with this Agreement will be deemed a breach of this Agreement by you. You are also responsible for ensuring that you have the appropriate rights to interact and/or contact End Users through the Services, as applicable, in accordance with applicable laws and regulations.
- Data; Unauthorized Access; Maintaining Networks. You will: (a) have sole responsibility for the accuracy and quality of Your Data and for ensuring that your collection and use of Your Data complies with applicable laws, including those related to data privacy and transmission of personal data; (b) prevent unauthorized access to, or use of, the Services, and notify AXLE promptly of any unauthorized access or use; and (c) have sole responsibility for obtaining, maintaining and paying for any hardware, telecommunications, Internet and other services needed to use the Services. You agree that you and anyone you are responsible for in this Agreement will not violate the Agreement or engage in any of the prohibited conduct.
- Restrictions on Use.You and your Affiliates and End Users will not: (i) submit any infringing, obscene, defamatory, threatening, or otherwise unlawful or tortious material to the Services, including material that violates privacy rights; (ii) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (iii) attempt to gain access to the Services or related systems or networks in a manner not permitted by this Agreement; (iv) post, transmit or otherwise make available through or in connection with the Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other harmful computer code, files, scripts agents or programs; (v) restrict or inhibit any other person or entity from using the Services; (vi) remove any copyright, trademark or other proprietary rights notice from the Services; (vii) frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service; (viii) systematically download and store Services content; or (ix) use the Services to send unsolicited electronic messages (aka spamming); or (x) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services. Notwithstanding subsection (x) above, and subject to compliance with any instructions posted in the robots.txt file located in the root directory of any Website, AXLE grants to the operators of public search engines permission to use spiders to copy materials from the Websites for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. AXLE reserves the right to revoke these permissions at any time and without notice.
- Cardholder Data. You are solely responsible for any liability resulting from your or any Affiliate’s handling of Cardholder Data. You agree that you and Affiliates will comply with PCI DSS anytime the Services are used to process credit cards for AXLE’s Services.
- Usernames and Passwords. You will keep all usernames and passwords confidential. AXLE may reject or require that you change any username or password under your account. Usernames and passwords are for internal business use only and may not be shared with any third party, including any competitor of AXLE. You, and not AXLE, are responsible for any use or misuse of usernames or passwords associated with your account.
- You are responsible for ensuring you have obtained the requisite level of consent necessary from End Users when utilizing the Services, including, but not limited to, the automated marketing products.
- You warrant and represent that, at all times during the term of this Agreement, you will be in compliance with all applicable federal and state statutory and regulatory requirements, including, but not limited to, all applicable data privacy and security laws and regulations, including the Telephone Consumer Privacy Act (“TCPA”) and/or the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (“CAN-SPAM”), which expressly prohibit sending, initiating, or facilitating in any way a text or email message without express and specific consent.
- You agree to defend, indemnify and hold harmless AXLE from and against any and all third party claims, suits, proceedings, or causes of action, alleged or asserted, by any third party, including all losses, expenses, damages, penalties, attorney’s fees and related costs, assigned to and incurred by AXLE, arising out of or related to, whether directly or indirectly, any claim, allegation, dispute or action for infringement of intellectual property rights, any claim, allegation, dispute, or action for violation of or the privacy rights of any third party, including, but not limited to, any claims, suits, proceedings, or causes of action arising out of or related to any allegation of violation of the TCPA and/or the CAN-SPAM Act, or any claim, allegation, action, or dispute as to data ownership or privacy or any material breach of this Agreement.
- If any claim, suit, proceeding, cause of action, allegation, dispute, investigation, or action is brought against you in connection with a violation of applicable law including, but not limited to, the TCPA and /or the CAN-SPAM Act, you shall reimburse AXLE a consultancy fee of $125.00/hour for any and all work and/or services AXLE provides to you in support of your defense of any such claim, suit, proceeding, cause of action, allegation, dispute, investigation, or action.
- You agree that there can be no adequate remedy at law for any breach of your obligations hereunder regarding the copying and distribution of the Products or portions thereof; and that AXLE, in addition to whatever other remedies it might have at law or in equity, shall be deemed to have suffered irreparable harm, and shall be entitled to seek appropriate equitable relief to prevent the disclosure or use of any Product in breach of this Agreement or the unauthorized copying or distribution of any Product or portion thereof.
Fees and Payment
- All Subscription Fees and Payment Terms are set forth on the applicable Order Form between you and AXLE and are further subject to this Agreement and the terms of the Services Agreement.
Intellectual Property Rights
- AXLE Intellectual Property. Subject to the limited rights expressly granted to you under this Agreement and the Services Agreement, AXLE owns all right, title and interest in and to the Services, the AXLE Data and Aggregated Data, including, without limitation, all related intellectual property rights therein. As between you and AXLE, all AXLE Marks are owned by AXLE. You agree not to display or use any AXLE Marks in any manner without AXLE’s express prior written permission. Any trademarks, service marks, and logos associated with a Third Party Offering may be the property of the third party provider, and you should consult with their trademark guidelines before using any of their marks.
- License Grant to You. As set forth more fully in the Services Agreement, AXLE grants you a limited, revocable, world-wide, non-transferable, and non-exclusive license for the Term to: (i) use the Services and any other information or content distributed by AXLE to you solely for your own internal business purposes at the studios that are included in this Agreement; and (ii) maintain copies of the Services solely at the studios for which you have contracted for the Services under the applicable Order Form(s) and Services Agreement. You agree that every computer on which the Services will be used have passwords specifically assigned to authorized users who have access and have the security, confidentiality and integrity safeguards that are commercially reasonable for your industry.
- Restrictions on Use. You may not copy or install Services onto a network server that does not service a studio contracted for under the Order Form(s) and the Services Agreement. Except as set forth in the applicable Order Form(s), the Services Agreement, or this Agreement, you may not copy all or any portion of the Services or reverse-engineer, disassemble, or decompile any portion of the Services. None of the contractual agreements referenced herein grants any right to use, sublicense, rent or loan any of the Services, nor do they grant any right to create a derivative work based upon any of the Services, except as otherwise expressly provided herein. AXLE shall not be liable or responsible for any conflicts of equipment or software that may arise from your use of any of the Services.
- License Grant to AXLE. You hereby grant to AXLE and its affiliates a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to (a) modify, copy, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by you, Affiliates or End Users relating to the Services or AXLE’s business(es); and (b) to use your business name(s), trademarks, service marks, logos or any publicly available images (collectively, “Your Marks”) in connection with: (x) providing the Services, (y) for marketing and promotional purposes in connection with AXLE’s business, and (z) for Marketing Services. AXLE agrees that any use by AXLE of any of Your Marks will inure solely to the benefit and goodwill of your business. Other than those rights specifically granted to AXLE affiliates herein, all right, title and interest in and to Your Marks are expressly reserved by you.
Data Ownership and Use
- Although Your Data is contained on AXLE Services, it belongs to you and AXLE does not collect for another use, disclose to third parties or otherwise manipulate the data created by you for use in the Services, except as set forth in this Agreement. You will: (a) have sole responsibility and liability for the accuracy and quality of your data and for ensuring that your collection and use of your data that identifies private information about a user or potential user of your studio complies with applicable laws, including those related to data privacy, use of credit card information, and transmission of personal data; (b) prevent unauthorized access to, or use of, the Services, and notify AXLE promptly of any unauthorized access or use; and (c) have sole responsibility for obtaining, maintaining and paying for any hardware, telecommunications, Internet and other services needed to use the Services; and (d) maintain administrative, physical, and technical safeguards to protect your data.
- AXLE Data.Notwithstanding anything set forth herein, all right, title and interest in any data or information collected by AXLE independently and without access to, reference to or use of any of Your Data, including, without limitation, any data or information AXLE obtains about End Users through the Services (whether the same as Your Data or otherwise), will be solely owned by AXLE (collectively, “AXLE Data”).
- Aggregated Data. You agree AXLE owns all Aggregated Data. You also agree that nothing in this Agreement will prohibit AXLE from utilizing Aggregated Data for any purpose, provided such Aggregated Data does not reveal any personally identifying information about you or any End Users or is reasonably linkable to any End User or household.
- Unauthorized Disclosure. If either Party believes that there has been a disclosure of your Data in a manner not authorized under this Agreement, such Party will promptly notify the other Party. Additionally, each Party will reasonably assist the other Party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorized disclosure.
- Data-Related Disputes. You are solely responsible for resolving disputes regarding ownership or access to Your Data, including those involving any current or former owners, co-owners, employees, Affiliates (former or current), or contractors of your business. You acknowledge and agree that AXLE has no obligation whatsoever to resolve or intervene in such disputes.
- You and AXLE will protect each other’s Confidential Information and only use it to fulfill obligations stated in the applicable Order Form(s), the Services Agreement, and this Agreement. A Party will not disclose or use any Confidential Information of the other Party except: (a) as reasonably necessary to perform its obligations or exercise any rights granted as set forth herein; (b) with the other Party’s prior written permission; or (c) to the extent required by law or order of a court or other governmental authority or regulation. Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care. Confidential Information will not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party; (b) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (c) was independently developed by a Party without breach of any obligation owed to the other Party; or (d) was or is received from a third party without breach of any obligation owed to the other Party. For clarity, nothing in this Section will restrict AXLE with respect to AXLE Data or Aggregated Data.
Term; Expiration; Termination
- The Term of this Agreement, along with renewal, termination, and expiration terms, shall align with that which is set forth in the applicable Order Form(s) and the Services Agreement. Each Order Form may have its own Term, which shall be set forth in that Order Form. If any licenses or subscriptions under an Order Form extend beyond the Initial Term or the Renewal Term of this Agreement (sometimes, collectively, the “Term”), then this Agreement will survive and apply to those Order Forms until they expire or are terminated as set forth therein.
Warranties and Disclaimer
- AXLE warrants that during the Term, the Services will perform materially in accordance with the functionality described in the documentation provided by AXLE to you describing such Services. Your sole and exclusive remedy for a breach of this warranty will be that AXLE will use commercially reasonable efforts to modify the applicable portion of the Services to achieve the functionality described above. If AXLE is unable to restore such functionality, you may terminate the Services Agreement by providing written notice to AXLE, and you will be entitled to receive a pro-rata refund of any pre-paid fees. AXLE will have no obligation with respect to a warranty claim under this Section unless notified by you in writing no later than thirty (30) days after the first instance of any material functionality problem. This warranty will only apply if the applicable part of the Services has been utilized in accordance with this Agreement and applicable laws. For clarity, this warranty will not apply to any free, trial or beta Services.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AXLE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR RELATED DOCUMENTATION. AXLE DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS PROVIDED HEREIN, THE AXLE SERVICES AND ANY OTHER SERVICES AND THIRD-PARTY MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SOLELY FOR YOUR USE IN ACCORDANCE WITH THIS AGREEMENT AND THE SERVICES AGREEMENT. AXLE DOES NOT WARRANT THAT ANY AD OR MARKETING MATERIALS IT CREATES WILL INCREASE YOUR REVENUE OR PROFITABILITY. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH AXLE AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “AXLE PARTIES”).
- AXLE may, from time to time, temporarily suspend your access for things like scheduled maintenance, or if a natural disaster occurs. We may also change or discontinue features or functions of our Services at any time. AXLE reserves the right to suspend the Services (a) in connection with a Force Majeure event (as described below), (b) if we believe any malicious software is being used in connection with your account, or (c) during planned downtime. In addition, we reserve the right to change, suspend or discontinue any features, components or functions of the Services at any time. If we make any material changes to the Services, we will notify you of the change and the general time that it has or will take effect. Notwithstanding the above, we have no obligation to update or enhance any of the Services or to produce or release new versions of any Services.
- Accuracy of Your Information. You agree to provide AXLE with complete and accurate account information, including your legal company name, street address, e-mail address, bank account, and such other information as may be requested by AXLE (collectively, “Account Information”). You are responsible for the accuracy and timely updating of Account Information, and you agree to promptly notify AXLE in writing if any Account Information changes. You agree that AXLE has no responsibility or liability whatsoever for any loss or damages caused, either directly or indirectly, by inaccurate Account Information.
- If we are sued by another party as a result of something you have done, you shall cover the costs. You agree to indemnify, defend, and hold harmless the AXLE Parties from and against any and all third party claims alleged or asserted against any of them, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys’ fees and costs) arising from or relating to: (a) any actual or alleged breach by you, an Affiliate or End User of any provisions of this Agreement; (b) any access to or use of the Services by you, an Affiliate or End User; (c) any actual or alleged violation by you, an Affiliate or End User of the intellectual property, privacy or other rights of a third party; and (d) any dispute between you and another party regarding ownership of or access to Your Data.
Limitations and Exclusions of Liability
- AXLE EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY AXLE. THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.
- UNDER NO CIRCUMSTANCES SHALL THE AXLE PARTIES BE LIABLE FOR: (a) SPECIAL, INCIDENTAL, OR PUNITIVE LOSS OR DAMAGES; (b) INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGES; OR (c) LOSS OF BUSINESS, REVENUE, GOODWILL, PROFITS, CONTRACTS, OR ANTICIPATED SAVINGS (WHETHER SUCH LOSS IS DIRECT OR INDIRECT, FORESEEABLE, OR OTHERWISE), IN ANY SUCH CASE ARISING FROM OR ABOUT OR OTHERWISE RELATING TO THE SERVICES OR THIS AGREEMENT WHETHER ON THE BASIS OF NEGLIGENCE, TORT, BREACH OF CONTRACT, MISREPRESENTATION OR OTHERWISE, EVEN IF AXLE, ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, UNDER NO CIRCUMSTANCES SHALL THE AXLE PARTIES BE LIABLE FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE SERVICES, ON WHATSOEVER BASIS, IN AN AMOUNT IN EXCESS OF THE FEES ACTUALLY PAID FOR THE MOST RECENT TERM FOR THE SERVICES SUBJECT TO A CLAIM.
- You agree to comply with any applicable export control laws and that you are not subject to any U.S. trade restrictions or sanctions.
- You will comply with all applicable export laws and restrictions and regulations of the US Department of Commerce, the US Department of Treasury Office of Foreign Assets Control, or other United States or foreign agency or authority, and you will not use the Services to export, or allow any export or re-export in violation of any such restrictions, laws or regulations. You represent and warrant to AXLE that you are not a prohibited party or located in, under the control of, or a national or resident of any restricted country, and that you will otherwise comply with all applicable export control laws. If you reside outside the United States, then in addition to complying with the foregoing, you will comply with any relevant export control laws in your local jurisdiction.
- Notice. All notices, consents, approvals, or other communications pursuant to this Agreement shall be made in writing and may be delivered by personal delivery, certified mail (return receipt requested), by overnight courier (with receipt for delivery) or by email. Email notification of changes to any terms set forth in this Agreement delivered by AXLE to you shall constitute effective notice.
- Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Tennessee. No action regarding this Agreement, any of the Services or the relationship between you and AXLE may be commenced in any court except for the state and federal courts located in the State of Tennessee, which shall have the exclusive jurisdiction over any such action. You and AXLE (i) consent to the personal jurisdiction of the courts located in the State of Tennessee in any such action; (ii) consent to the venue of the courts located in the State of Tennessee in any such action; and (iii) consent to service of process by the means specified herein for giving notice. Notwithstanding the foregoing, nothing in this Agreement shall prevent any party from pursuing injunctive relief or similar to enforce the provisions hereof, in any appropriate forum.
- Attorneys’ Fees. In the event of any litigation arising from or related to this Agreement, or the services provided under this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred, including attorneys’ fees, court costs, expert fees, and all other related costs and expenses incurred in such litigation.
- Assignment. You may not assign, delegate or transfer this Agreement in whole or in part, without AXLE’s prior written consent. AXLE may assign, transfer or sublicense any or all of AXLE’s rights or obligations under this Agreement without restriction.
- Waiver. No waiver of any provision of this Agreement by AXLE will be effective unless in writing and signed by AXLE. No waiver by either Party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. We are entering this Agreement with you and you agree that you will not transfer it to anyone else. In an effort to make sure we meet our obligations to you, we can bring in other parties to fulfill the duties promised in this Agreement.
- Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving AXLE’s or your employees, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
- Electronic Communications and Signatures.You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.
- Relationship of the Parties. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and AXLE.
Definitions. For the purposes of this Agreement, the following capitalized terms will have the meanings set forth for each of them below
- “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with you, and that has been designated to receive Services under this Agreement. “Control” for purposes of this definition means the power to direct or cause the direction of the management and policies of the subject entity, whether through equity ownership, a credit arrangement, franchise agreement or other contractual arrangement. “Affiliate” also includes any of your business locations and any Franchisees that have been designated to receive Services under this Agreement.
- “Aggregated Data” means anonymized, de-identified, or aggregated data derived by or through the operation of the Services that is created by or on behalf of AXLE in compliance with applicable laws and that does not reveal any personally identifying information about you or any End Users or is reasonably linkable to any End User or household.
- “AXLE Marks” means all service marks, logos and product and service names used, applied for, registered, or otherwise owned by AXLE and its affiliates.
- “Cardholder Data” means credit card numbers, expiration dates, billing addresses, and cardholder names as entered by End Users and you. Cardholder Data is a subset of End User Data.
- “Confidential Information”means (a) any software utilized by AXLE in the provision of the Services and its respective source code; (b) each Party’s business or technical information, including but not limited to the Documentation, information relating to software plans, designs, costs, prices and names, business opportunities, personnel, research, development or know-how that is designated by the disclosing Party as “confidential” or “proprietary” or the receiving Party knows or should reasonably know is confidential or proprietary; and (c) any special pricing or other non-standard terms agreed to by the Parties in an Order Form or other separate written document.
- “Documentation” means online user guides, documentation, and help and training materials, as may be updated by AXLE from time to time, accessible at the applicable website(s), and any other materials provided by AXLE as part of the Services.
- “End User” means a business or individual that schedules or purchases products or services from you through the Services, that you market to, communicate with, or target through the Services, or that otherwise interacts with you through the Services, or that you authorize to use the Services in connection with your business.
- “End User Data” means all data, information or other material about an End User that you, an Affiliate or End User provides or submits to the Services. End User Data may include Cardholder Data and such portions of Your Data that relates to specific End Users.
- “Marketing Services” means AXLE’s online marketing platform, which allows consumers to locate AXLE subscribers and evaluate, review and book their services, directly through the AXLE and through our partner applications.
- “Order Form” means a separate ordering document, invoice, online form, or other documentation that specifies the Services ordered or purchased hereunder, the applicable Services Fees (or if the Services are free), and other terms as agreed to between the Parties. If an Order Form indicates that any Affiliates or Franchisees will be receiving Services hereunder, each of them will be bound by the terms of this Agreement as if they were an original party hereto.
- “PCI DSS” means the requirements of the Payment Card Industry Data Security Standard, as detailed on https://www.pcisecuritystandards.org/, and as may be updated from time to time.
- “Services” means the Services and subscriptions purchased or licensed as defined in the applicable Order Form(s).
- “Third Party Offerings” means any third party products, applications, websites, implementations or services, including loyalty programs, that the Services link to, or that interoperate with or are used in conjunction with the Services.
- “Your Data” means any data, information or material provided or submitted or made available by you and Affiliates to the Services. Your Data may include End User Data and Cardholder Data (and your or their representative’s data) but excludes Aggregated Data.