Terms and Conditions
Last Updated: May 15, 2023
These Subscription Terms and Conditions (these “Terms”) form a legally binding agreement between Axero Holdings LLC, a Delaware limited liability company (“Axero”) and the customer (“Customer”) entering into an order form or similar transaction document that references these Terms (the “Order”, and together with these Terms, this “Agreement”). The “Effective Date” is the date of execution of the relevant Order.
1. DEFINITIONS AND INTERPRETATION
1.1 Capitalized terms as used in this Agreement shall have the meanings as indicated below or defined elsewhere in this Agreement and if not defined in this Agreement, it shall have the meaning ascribed to them under the relevant statute/ legislation:
(i) “Agreement Price” means the sum total of all prices, fees, costs, and dollar amounts otherwise listed on the Order.
(ii) “Confidential Information” means any information, oral or written, that relates to either Party’s technical, financial, marketing or other proprietary information relating, without limitation, to business, products, processes, or services, whether or not designated as confidential or proprietary, or that a reasonable party would understand to be confidential or proprietary. For the avoidance of doubt, Axero’s pricing, the Software, and Support & Maintenance Policy, shall be deemed Confidential Information regardless of any lack of designation.
(iii) “Content” means any content and information provided or submitted by, or on behalf of, Customer or its users, or imported from Third-Party Services at the direction of Customer, in connection with the Services.
(iv) “Documentation” means the explanation, text, documents, and other media produced by Axero regarding how the Software operates, how to use the Software, the system requirements for operating the Software.
(v) “Personal Data” means information that Customer voluntarily provides to Axero in registering for and/or billing, accounts, installing the Software, and from time-to-time which Customer may provide to Axero to update and/or augment such information.
(vi) “Software” means Communifire and all related software items, related intellectual property, and related Documentation that have been designed and manufactured by Axero, whether on disk, in read only memory, on any other media or in any other form; as well as all software items and related intellectual property and associated documentation that is the property of third parties with whom Axero has a licensing, reseller, or similar agreement.
(vii) “Support and Maintenance Policy” Support and Maintenance policy is a separate document available online at https://axerosolutions.com/legal/support-policy.
(viii) “Use” means utilization of the Software, including without limitation, copying, transmitting or loading it into the permanent memory (e.g. hard disk, CD-ROM or other storage device) for the processing of the instructions or statements contained in the Software; and copying the Software which is in machine-readable form for the purposes of understanding the contents of such machine-readable material.
1.2 Rules of Interpretation. The following rules of interpretation shall apply to this Agreement: (a) the words “herein,” “hereof,” and “hereunder,” refer to this Agreement as a whole and not to any particular provision of this Agreement; (b) the terms “include,” “includes,” and “including” shall be deemed to be followed by the phrase “without limitation”; (c) Axero shall have the absolute right, in its sole discretion, to substitute its services under this Agreement with the services of partners and/or resellers; (d) the headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement; and (e) “Party” shall refer individually to either Axero or Customer and “Parties” shall refer to Axero and Customer collectively.
2. LICENSE TO USE
2.1 Grant of License. Subject to the terms and conditions of this Agreement, Axero hereby grants Customer a revocable, non- exclusive, non-transferable license without any right to sublicense, to Use the Software (the “License”). The Software consists of domain software and may only be installed/downloaded onto one authorized domain only. Each domain must have a separate license or licenses installed on the domain, and domains may not share the same License. The total number of domains must not exceed the total number of purchased licenses for Customer. The Software may not be transferred electronically from one computer to another nor used over a network without procuring the relevant number of licenses.
2.2 Reservation of Rights. Any and all rights not expressly granted to Customer in this Agreement are hereby reserved by Axero, including without limitation, that neither the License nor this Agreement grants to Customer or any third party any right, title or interest, including without limitation, any security interest, in any of the Software or any other property of Axero, its licensors, or its affiliates. Axero reserves the right to exercise any rights in the Software, including the right to license, sublicense or otherwise exploit or dispose of such rights to any party and in any manner, without restriction. Customer agrees that all proprietary right, title and interest in the Software shall remain with Axero, and that all uses of the Software by Customer shall not create any interest or right, express or implied, in the Software in Customer except as expressly set forth in this Agreement, and that Customer does not and will not assert any claim to any ownership thereof, except the License as expressly set forth in this Agreement. If, by operation of the law of any jurisdiction, or otherwise, Customer is deemed to or appears to own any property rights in the Software other than the License as set forth herein, Customer hereby assigns all right, title and interest in such property rights to Axero, and Customer shall, at the request of Axero, execute any and all documents necessary to confirm or otherwise establish the rights of Axero therein.
2.3 Restrictions on Use. Upon accepting this Agreement Customer undertakes: Not to copy, disassemble, decompile, or reverse engineer the Software; Not to translate, modify, sell, lease, rent, loan, redistribute, sublease, sublicense and/or make copies of or create derivative works from the Software or any part of the Software, except as otherwise expressly permitted under this License; Not to reproduce the Software; Not to remove or alter any copyright notices or other legal notices or disclaimers that may be included in or on copies of the Software as provided to Customer; Not to knowingly or negligently use the Software: to access communicate and/or transmit any information that: infringes any patent, trademark (whether or not registered), copyright, trade dress (whether or not registered), trade secret, and/or other proprietary rights (together the “Intellectual Property Rights”); disclose to third parties information that has been given to Customer in confidence; contains software viruses, Trojan horse, worms or other computer data or programs which have the object, effect or is designed to destroy, interrupt and/or in any way limit the functionality of any software and/or hardware or other equipment or in any way detrimentally affect the same; or is objectionable including (without limitation) any information that is unlawful, threatening, abusive, harassing, defamatory, harmful to minors or others generally, hateful, obscene, racially and/or ethnically objectionable; to in any way infringe any Intellectual Property Rights or any other third party rights; for immoral, illegal or for any other purpose which may be determined threatening, abusive or harmful including but not limited to the creation or transmission of any virus, worms, Trojan horse, cancelbot or any other destructive or contaminating program; To obtain any and all necessary consents and/or authorizations for the use of any Content uploaded, posted, or published using the Software and to pay any and all commissions, royalties, license fees and/or any such other charges as may be required for the legitimate use of such Content from the Content owner or any other relevant party; Not to impersonate any person or entity or falsely state or otherwise misrepresent Customer’s affiliation with a person or entity; Not to provide or otherwise make available the Software to any person other than Customer’s employees or as specified herein without prior written consent from Axero; provided however Customer may make applications and features, available to its own customers that use the Software installed only on the single authorized domain under this Agreement. Not to display the Software on a public bulletin board, ftp site, worldwide web site, chat room or by any other means; Only Use the Software in accordance with the instructions set out in the documentation for its installation and use; and not to disrupt or harm the computer or program of any other person.
3. ACKNOWLEDGEMENTS
3.1 Responsibility for Manner of Use. Customer acknowledges that, Customer alone is responsible for its own actions and omissions related to Use of the Software by Customer, ensuring that Use of the Software by Customer is compliant with all applicable laws, and that Customer is aware that any Use inconsistent with such laws may subject Customer to potential criminal and/or civil liabilities.
3.2 Content. Customer acknowledges that Customer is responsible for, and Customer is aware that, Content may contain third party proprietary information which may be protected by, amongst other things, copyright law and that, amongst other acts, the reproduction, distribution or handling of copies, transmission, public performance and/or displaying of such Content without the consent of the copyright owner or other rights holder may be in breach of such laws which may result in criminal and/or civil liability. Customer grants Axero the license to download, store, process and use the Content as necessary for purposes of providing and improving the Software. Customer acknowledges and agrees that the license granted under this Agreement is subject to a storage limitation of 250 gigabytes (GB).
4. THIRD PARTY SOFTWARE
4.1 Third-Party Software. The Software includes code and libraries licensed to Axero by third parties, including open source software (“Third-Party Software”). A list of Third-Party Software included in the Software is available in the product documentation. All Third-Party Software is provided to the Customer under the respective terms stipulated in the product documentation.
For on-premise deployments only: If the Customer is installing the Software in the Customer’s own environment or on the Customer’s own servers, the Customer acknowledges that in installing the Software, it may also be required to install certain Third-Party Software to be able to use Communifire on their servers, and Customer agrees that if it installs the Third-Party Software, Customer shall agree to the Third-Party Terms prior to installation, and that if Customer does install the Third Party Software with or without review of the Third-Party Terms, then such installation shall constitute and be deemed acceptance in full of the Third Party Terms by Customer. Axero shall provide list of any necessary Third-Party Software to be installed on Customer servers/systems before installation of Communifire.
5. PRIVACY INFORMATION
5.1 Privacy. Without limiting Customer’s obligations set forth in this Agreement, each Party shall comply with all applicable privacy laws in the performance of their respective obligations under this Agreement with respect to the processing of Personal Data. Axero’s Data Processing Addendum, which forms part of this agreement, is available at https://axerosolutions.com/legal/data-processing-addendum. Axero’s privacy policy, which is available at https://axerosolutions.com/legal/privacy, sets out the terms applying to the use of Axero’s website.
6. TERMS OF PAYMENT
6.1 Agreement Price. Subject to the provisions of this Agreement, Customer shall pay to Axero the Agreement Price in United States Dollars “USD” in the manner prescribed in the applicable Order (“License Fee”). Customer will pay Axero the invoiced amount within 15 days from receipt of invoice, unless otherwise agreed to by both parties on an invoice by invoice basis. The Agreement Price does not include taxes, duties or charges of any kind. If Axero is required to pay or collect any local, value added, goods and services taxes or any other similar taxes or duties arising out of or related to this Agreement (not including taxes based on Axero’s income), then such taxes and/or duties shall be billed to and paid by Customer.
6.2 Adjustments to Agreement Price. Axero may increase the fees for each Renewal Term by providing notice to Customer at least sixty (60) days prior to the commencement of the applicable Renewal Term. In the event Axero does not provide notice, fees will increase by 9.1% of the then current Agreement price.
6.3 Past Due Charges. If any charges are not received from Customer by the due date, then at Axero’s discretion such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month (18% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
7. TERM
7.1 License Term. The License term, as hereinafter defined, shall commence on the Effective Date and shall continue for the term stated in the Agreement (“Initial License Term“), followed by automatic renewal terms of equal duration (each a “Renewed License Term” and collectively, the Initial License Term and each License Renewal Term shall be referred to as the “License Term“) unless Customer or Axero provides written intention not to renew at least sixty (60) days prior to the end of the then current Initial License Term or Renewal License Term.
8. TERMINATION
8.1 Termination for Non-Payment. Axero will provide Customer with notice of non-payment of any amount due. Unless the full amount has been paid within ten (10) days after such notice, Axero may suspend Customer access to any or all of the Software. Axero may immediately terminate the License and the provision of all services to Customer upon the inability or failure of Customer to make any and all payments within thirty (30) days of such payment due date. Axero will not suspend the Software while Customer is disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
8.2 Termination for Breach. Either Party may, at its option, terminate this Agreement upon the material breach by the other Party of any provision of this Agreement, which breach is not cured by the breaching Party within thirty (30) days after receipt of written notice thereof from the other Party.
8.3 Termination for Bankruptcy. Either party shall have the right to terminate this Agreement immediately if the other party becomes insolvent, or is unable to pay its debts as due, or enters into or files (or has filed or commenced against it) a petition, arrangement, action or other proceeding seeking relief or protection under the bankruptcy or similar laws of the United States.
8.4 Termination for Infringement. In the event of a claim of intellectual property infringement by any third party relating to the Software, Axero shall have the right, at its option, to (i) immediately terminate this Agreement and the rights granted hereunder, (ii) obtain such rights as are sufficient to make the Software non-infringing or (iii) substitute the Software with adequate other non-infringing software.
8.5 Obligations on Termination. Upon any termination of this Agreement, (i) the License shall terminate, which may include Axero remotely disabling the Software, and (ii) Customer shall (a) immediately discontinue Use of the Software and relinquish any and all rights with respect to the Software; and (b) each Party shall promptly return to the other Party the original and return, or certify to the destruction of, all copies of the other Party’s Confidential Information or (in the case of the Customer) any other information relating to any of the Software furnished by Axero or otherwise in the possession of the Customer, and any reproductions, notes, summaries, translations or similar documents relating to the other Party’s Confidential Information or (in the case of the Customer) relating to any Software. Customer will be granted access to data stored in the solution for 30 days after expiration or termination of this Agreement for the sole purpose of copying such data off the solution. If Customer terminates this Agreement for cause, Axero will promptly refund any prepaid but unused fees covering use of the Software after termination. If Axero terminates this Agreement for cause, Customer will promptly pay all unpaid fees due through the end of the License Term. Agreement Price is otherwise non-refundable.
8.6 Continuing Obligations. The agreements, representations, warranties, covenants, duties and obligations as set forth in this Agreement, which by their terms or to the extent consistent with the intent and purpose of this Agreement extend beyond the term of this Agreement, shall survive termination or expiration of the term of this Agreement.
9. INDEMNITY
9.1 INDEMNIFICATION BY CUSTOMER. CUSTOMER SHALL PROTECT, DEFEND, INDEMNIFY AND HOLD AXERO, ITS PARENTS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, AND THE OFFICERS, DIRECTORS, EMPLOYEES AND OTHER PERSONNEL, SHAREHOLDERS AND AGENTS OF EACH OF THEM, HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES, DAMAGES, JUDGMENTS, PENALTIES, LOSSES, COSTS, EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES), CLAIMS, SUITS, OR DEMANDS RELATING TO OR ARISING FROM (I) ANY BREACH BY CUSTOMER OF ANY OF ITS REPRESENTATIONS, WARRANTIES. OR COVENANTS HEREUNDER; OR (II) UNAUTHORIZED USE OR USE BY CUSTOMER OF THE SOFTWARE IN MANNER AND FOR PURPOSE NOT COVERED UNDER THIS AGREEMENT.
9.2 INDEMNIFICATION BY AXERO. AXERO SHALL PROTECT, DEFEND, INDEMNIFY AND HOLD CUSTOMER AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND OTHER PERSONNEL, SHAREHOLDERS, EACH OF THEM, HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES, DAMAGES, JUDGMENTS, PENALTIES, LOSSES, COSTS, EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES), CLAIMS, SUITS, OR DEMANDS RELATING TO OR ARISING FROM (I) ADJUDICATED THIRD PARTY INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS; OR (II) ANY LOSS CAUSED TO CUSTOMER DUE TO WILFUL MISCONDUCT OF AXERO OR ITS EMPLOYEES OR (III) ANY BREACH BY AXERO OF ITS REPRESENTATIONS AND WARRANTIES UNDER THIS AGREEMENT.
9.3 NOTICE OF INFRINGEMENT. IF CUSTOMER LEARNS OF ANY INFRINGEMENT, MISUSE, OR MISAPPROPRIATION OF ANY OF THE SOFTWARE, CUSTOMER SHALL PROMPTLY NOTIFY AXERO THEREOF IN WRITING FAILING WHICH THE INDEMNIFICATION OBLIGATION OF AXERO UNDER CLAUSE 9.3 SHALL BE DEEMED WAIVED BY THE CUSTOMER.
10. LIMITATION OF LIABILITY
10.1 LIMITATION OF LIABILITY. EXCEPT IN CASES OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT CLAIMS WHICH ARE PROVEN AND ADJUDICATED IN THE COURT OF LAW, IN NO EVENT WILL CUSTOMER OR AXERO HAVE ANY LIABILITY (DIRECTLY OR INDIRECTLY) FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES; FOR LOSS OF PROFITS, USE REVENUE, OR DATA; OR FOR BUSINESS INTERRUPTION (REGARDLESS OF THE LEGAL THEORY FOR SEEKING SUCH DAMAGES OR OTHER LIABILITY). IN ADDITION, THE LIABILITY OF AXERO ARISING OUT OF OR RELATING TO THE SOFTWARE, WILL NOT EXCEED THE AMOUNT OF THE LICENSE FEE FOR THE MOST RECENT RENEWED LICENSE TERM OF THIS AGREEMENT ACTUALLY PAID BY CUSTOMER FOR THE SOFTWARE.
10.2 APPLICATION OF AND BASIS FOR LIMITATIONS. THE INDEMNITY UNDER CLAUSE 9, THE LIMITATIONS OF LIABILITY IN THIS CAUSE 10, AND THE LIMITED WARRANTY UNDER CLAUSE 11, APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW TO ANY DAMAGES OR OTHER LIABILITY, HOWEVER CAUSE AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, EVEN IF AXERO OR CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE. ALSO, CUSTOMER AGREES THAT THE LICENSE FEES CHARGED BY AXERO AND PAID BY CUSTOMER ARE BASED ON AND REFLECTIVE OF THE ALLOCATION OF RISK CONTEMPLATED BY CLAUSES 9, 10 AND 11 OF THIS AGREEMENT, AND THAT THE LIABILITY LIMITATIONS IN CLAUSES 9, 10 AND 11 ARE AN ESSENTIAL ELEMENTS OF THE AGREEMENT BETWEEN AXERO AND CUSTOMER. NOTWITHSTANDING THIS CLAUSE 10.2, AXERO AGREES THAT ANY LIMITATION OF LIABILITY SHALL NOT BE APPLICABLE ON THIRD PARTY INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT CLAIMS WHICH HAVE BEEN PROVEN AND DECIDED IN A COURT OF LAW.
10.3 INSURANCE BY AXERO. AXERO REPRESENTS THAT IT HAS UNDERTAKEN COMPREHENSIVE GENERAL LIABILITY INSURANCE TO COVER ANY FINANCIAL BURDENS WHICH MAY ARISE OUT OF THIS AGREEMENT AND THAT AXERO SHALL ALWAYS KEEP SUCH INSURANCE CURRENT.
11. LIMITED WARRANTY
11.1 Limited Warranty. Axero warrants that during the License Term, the Software will provide the general features and functions described in the then current Documentation. Axero’s entire liability, and Customer’s exclusive remedy (the “Limited Warranty”), with the exception of any statutory warranty or remedy that cannot be excluded or limited under law, shall be at Axero’s sole discretion and option, (i) to attempt to correct or work around errors, if any, or (ii) to refund the License Fees for the most recent Renewed License Term of this Agreement actually paid by Customer and terminate this Agreement. Such refund is subject to the return of all hard copies and the deletion of all electronic copies of the Software. THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES CUSTOMER SPECIFIC LEGAL RIGHTS. CUSTOMER MAY HAVE ADDITIONAL LEGAL RIGHTS UNDER LAW WHICH VARY FROM JURISDICTION TO JURISDICTION. AXERO DOES NOT SEEK TO LIMIT CUSTOMER’S WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW.
11.2 DISCLAIMER. EXCEPT FOR THE EXPRESS LIMITED WARRANTY PROVIDED IN CLAUSE 11.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AXERO MAKES, AND CUSTOMER RECEIVES, NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES OTHERWISE IMPLIED BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE) WITH RESPECT TO THE SOFTWARE. ANY STATEMENTS OR REPRESENTATIONS ABOUT THE SOFTWARE AND FEATURES OR FUNCTIONALITY THEREOF OR ANY COMMUNICATION WITH CUSTOMER ARE FOR INFORMATION PURPOSES ONLY, AND DO NOT CONSTITUTE A WARRANTY, REPRESENTATION, OR CONDITION. WITHOUT LIMITING THE FOREGOING, AXERO DOES NOT WARRANT: (a) THAT THE OPERATION OR OUTPUT OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, ACCURATE, RELIABLE, OR COMPLETE, (b) THAT ERRORS WILL BE CORRECTED BY AXERO; OR (c) THAT AXERO WILL RESOLVE ANY AND ALL CORRECTION/REPAIR REQUEST AND THAT SUCH RESOLUTION WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. NOTHING IN THE FOREGOING RESTRICTS THE EFFECT OF WARRANTIES OR CONDITIONS WHICH MAY BE IMPLIED BY LAW WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED NOTWITHSTANDING A CONTRACTUAL RESTRICTION TO THE CONTRARY.
12. CONFIDENTIALITY
12.1 Nondisclosure of Confidential Information. The parties agree and understand that in furtherance of, and related to, the purpose of this Agreement, each Party (the “Receiving Party”) may receive from the other Party (the “Disclosing party”) Confidential Information. Each party agrees that, without the prior written consent of the Disclosing Party to the Receiving Party, the Receiving Party shall only use the Confidential Information in furtherance of this Agreement and shall not, whether during the term of this Agreement or thereafter, itself use such information, except as provided in this Agreement, or disclose, publicize, reveal or make available, directly or indirectly, any Confidential Information to any firm, person or entity whatsoever, except for a disclosure which is required, if at all, by statute, order of court or otherwise by law, or as reasonably required in order to discharge the Receiving Party’s obligations pursuant to this Agreement, and then only after first advising the Disclosing Party of such intent to make disclosure with reasonably sufficient advance notice so as to afford the Disclosing Party an opportunity to object or otherwise seek a protective order. Information shall not be considered Confidential Information, or shall cease to be same, when:
(i) At the time of or after its disclosure by the Disclosing Party, it is published, known publicly or becomes part of the public domain through no fault of the Receiving Party or anyone associated with the Receiving Party who had access to the Confidential Information;
(ii) It is or becomes available to the Receiving Party on an unrestricted basis from a third party who does not, to the reasonable knowledge of the Receiving Party, knowingly breach a confidential relationship;
(iii) It is or shall have rightfully been in the possession of the Receiving Party prior to disclosure thereof by the Disclosing Party; or
(iv) It is independently developed by employees of the Receiving Party (or any affiliate/related entity of the Receiving Party) without access to or use of the proprietary information.
Each Party acknowledges and understands that the other Party and/or its affiliates/related entities may in the past, currently or in the future be developing information, products, systems, services or methods (collectively “Information”) internally (by employees without access to or use of the Confidential Information), or receiving Information from third parties, which may be similar to a party’s Confidential Information. Accordingly, nothing in this Agreement shall be construed as a representation or inference that either Party and/or its affiliates/related entities will not develop products, systems, services or methods contemplated by the other Party’s Confidential Information.
12.2 Nondisclosure of Agreement; Announcement of Relationship. The terms and conditions of this Agreement shall not be disclosed by either Party without the consent of the other Party. Notwithstanding anything else contained in this Agreement Axero shall have the right to use Customer’s name, logo or similar intellectual property for the purposes of sales and marketing including display of name on its websites, marketing material or press releases, etc. Such usage shall not be considered breach of this Agreement.
12.3 Other Agreements Superseded. The terms of this Clause 12 are intended to supersede all prior agreements, understandings and representations, written and oral, with respect to Confidentiality and the nondisclosure of Confidential Information.
12.4 Survival of Confidentiality. The provisions of this Clause 12 shall survive, and shall not be affected by, any termination of this Agreement pursuant to Clause 8 of this Agreement.
12.5 Back-ups. Axero will ensure back up of the data on a daily basis onto an electronic storage medium and shall store all such backups in an environment that is separate from the location of the hosting infrastructure. Data will be encrypted in transit and stored in a secured facility for back up. Backups will be performed as follows: (a) daily backups will be completed nightly and will be maintained for seven days, (b) weekly backups will be completed and will be maintained for 4 weeks. In the event of an extended interruption in the hosting services for Axero’s customers generally, Axero will, at no additional cost to Customer, use commercially reasonable efforts to restore Customer’s instance of the Software.
13. MISCELLANEOUS
13.1 Effect of Waiver. No waiver shall be deemed effective under this Agreement unless in writing signed by the Party against whom the waiver is to be effective. No failure or delay by any Party in exercising any right, power or privilege hereunder, and no course of dealing among or between the Parties hereto, shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
13.2 Successors and Assigns. Except as otherwise provided in this Agreement, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
13.3 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal invalid or unenforceable in any jurisdiction, the remainder of this Agreement shall remain in full force and effect, and such holding shall not affect this Agreement or any provision hereof in any other jurisdiction. If any provision of this Agreement is so held to be illegal, invalid or unenforceable only in part or degree, that provision shall remain in full force and effect to the extent not held illegal, invalid or unenforceable.
13.4 Force Majeure. No failure or omission by a Party to carry out or observe any of the terms or conditions of this Agreement, except for a failure to timely pay any sums of money when due, shall give rise to any claim against the Party in question or be deemed a breach of this Agreement if such failure or omission arises from war, riot, natural disaster, Act of God, Internet failures or any other cause reasonably beyond control of that Party (a “Force Majeure”). If any Party is, wholly or in part, prevented from or hindered in carrying out or observing any of the terms or conditions of this Agreement as a result of a Force Majeure, then such Party shall give written notice to the other Party by the most expeditious means as soon as possible after the occurrence of the Force Majeure relied on, giving full particulars of the reason for such prevention or hindrance, and the Parties shall in good faith consult with each other and take necessary measures for the resolution of the affairs so prevented or hindered.
13.5 Notices. All notices, demands, or consents required or to be given under this Agreement shall be made in the English language and shall be sent by (i) hand, (ii) electronic mail with receipt confirmation, (iii) registered or certified first-class mail, postage prepaid, or (iv) recognized international courier service (e.g. DHL, Federal Express or United Parcel Service), addressed to the Party as provided in the Order.
13.6 Governing Law. This Agreement shall be governed by laws of the State of Delaware and the parties hereby submit to the non-exclusive jurisdiction of the federal and state courts located in the State of Delaware.
13.7 Legal Expenses. The prevailing party in any legal action brought by one party against the other and arising out of this Agreement shall be entitled to recover, in addition to any other relief awarded or granted, its reasonable costs and expenses (including fees for attorneys and expert witnesses) incurred with respect to bringing and maintaining any such action.
13.8 Entire Agreement. This Agreement, including the Order and these Terms, form the entire agreement between the Parties. This Agreement supersedes, and the terms of this Agreement govern, any other prior or collateral agreements with respect to the subject matter hereof. No amendment or modification hereof will be valid or binding upon the Parties unless made in writing and signed by the duly authorized representatives of both Parties, except that Axero may update these Terms from time to time by posting an updated version on its website. Any such update will only take effect as between the Parties upon subsequent placement or renewal of any Orders.
13.9 Counterpart Execution. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
