Terms and Conditions

Last Updated: February 1, 2024

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. For the purposes of this Agreement, “Party” shall refer individually to either Axero or Customer, and “Parties” shall refer to Axero and Customer collectively.

1. DEFINITIONS AND INTERPRETATION

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:

1.1 “Aggregated Statistics” means data and information related to Customer’s use of the Software that is used by Axero in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Software.

1.2 “Agreement Price” means the sum total of all prices, fees, costs, and dollar amounts otherwise listed on the Order.

1.3 “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. Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party.

1.4 “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 Software, but excludes Feedback and Aggregated Statistics.
1.5 “Data Protection Laws” means all applicable worldwide legislation relating to data protection and privacy which applies to the respective Party in the role of processing Personal Data in question under the Agreement, including without limitation European Data Protection Laws, the CCPA and other applicable U.S. federal and state privacy laws, and the data protection and privacy laws of Australia, Singapore, and Japan, in each case as amended, repealed, consolidated or replaced from time to time.

1.5 “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.

1.6 “Feedback” means any and all communications, materials, suggestions, feedback, or comments provided to Axero suggesting or recommending changes to the Software, including, without limitation, new features or functionality.

1.7 “Personal Data” means any information relating to an identified or identifiable individual where (i) such information is contained within Content; and (ii) is protected similarly as personal data, personal information, or personally identifiable information under applicable Data Protection Laws.

1.8 “Software” means Axero’s software offering and all related software items, related intellectual property, and related Documentation that have been designed and manufactured by Axero, as well as all software items and related intellectual property and associated documentation for Third-Party Software. For the avoidance of doubt, Software includes Aggregated Statistics and any information, data, or other content derived from Axero’s monitoring of Customer’s access to or use of the Software, but does not include Content.

1.9 “Support and Maintenance Policy” Support and Maintenance policy is a separate document available online at https://axerosolutions.com/legal/support-policy.

1.10 “User” means individuals for whom the Customer has created a user profile on the Software and/or who are authorized by Customer to use the Software on Customer’s behalf or through Customer’s account under the rights granted to Customer pursuant to this Agreement.

2. LICENSE TO USE

2.1 Grant of License. Subject to and conditioned on Customer’s payment of fees and compliance with all other terms and conditions of this Agreement, Axero hereby grants Customer a revocable, non-exclusive, non-transferable license without any right to sublicense, to access and use the Software during the Term (the “License”). Such use is limited to Customer’s internal use unless otherwise specified in an Order. The Software consists of domain software and may only be installed onto the number of authorized domains and used by up to the number of licensed Users per authorized domain as specified in the Order and in accordance with any other applicable usage limits specified in Order and Documentation. For self-hosted installations only, the Software may not be transferred electronically from one computer to another nor used over a network without procuring the relevant number of licenses. If Customer exceeds a usage limit, Axero may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If Customer is unable or unwilling to abide by a contractual usage limit, Customer will promptly execute an order form to increase applicable limits upon Axero’s request, and/or pay any invoice for excess usage in accordance with Axero’s then-current list price for applicable Software and the Terms of Payment clause below. Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the Company’s standard practice. Subject to the terms and conditions in this Agreement, Axero hereby grants to Customer a revocable, non-exclusive, non-transferable license without any right to sublicense, license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Software.

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. 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. Except as expressly permitted by this Agreement, Customer will not (and will not allow Users to), directly or indirectly,: (i) reverse engineer, decompile, or attempt to discover any source code or underlying ideas or algorithms of the Software, in whole or in part; (ii) provide, sell, transfer, sublicense, lend, distribute, rent, or otherwise allow others to access or use the Software; (iii) remove any proprietary notices or labels from the Software; (iv) copy, modify, or create derivative works of the Software; (v) conduct security or vulnerability tests on, interfere with the operation of, cause performance degradation of, or circumvent access restrictions of the Software; (vi) access accounts, information, data, or portions of the Software to which Customer does not have explicit authorization; (vii) use the Software to develop a competing service or product; (viii) use the Software with any activity prohibited by applicable laws and regulations; (ix) use the Software to obtain unauthorized access to anyone else’s networks or equipment; (x) upload, submit, or otherwise make available to the Software any Content to which Customer does not have the proper rights; (xi) use the Software or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; or (xii) use the Software to access, communicate, and/or transmit any information that contains software viruses or other computer data or programs which have the object, effect or are 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, hateful, obscene, racially and/or ethnically objectionable, immoral, threatening, or abusive. Customer’s use of the Software must comply with all Documentation. Customer must only use the Software on authorized domains by authorized Users.

2.4 Changes. There may be times when we need to modify the Software, including, but not limited to, adding, removing, or changing certain features or functions (each a “Change”), to improve the quality, performance, marketability, or effectiveness of the Software. Any Change will not result in a material degradation of the security or essential functionality of the Software.

2.5 Back-ups. Axero will use commercially reasonable efforts to ensure backup of the Content 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.

2.6 Suspension. Notwithstanding anything to the contrary in this Agreement, Axero may temporarily suspend Customer’s and any User’s access to any portion or all of the Software if: (i) Axero reasonably determines that (A) there is a threat or attack on any of the Software; (B) Customer’s or any User’s use of the Software disrupts or poses a security risk to the Software or to any other customer or vendor of Axero; (C) Customer, or any User, is using the Software for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Axero’s provision of the Software to Customer or any User is prohibited by applicable law; (ii) any vendor of Axero has suspended or terminated Axero’s access to or use of any third-party services or products required to enable Customer to access the Software; or (iii) in accordance with Clause 6.3 (any such suspension described in subclause (i), (ii), or (iii), a “Suspension”). Axero shall use commercially reasonable efforts to provide written notice of any Suspension to Customer and to provide updates regarding resumption of access to the Software following any Suspension. Axero shall use commercially reasonable efforts to resume providing access to the Software as soon as reasonably possible after the event giving rise to the Suspension is cured. Axero will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any User may incur as a result of a Suspension.

2.7 Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Axero may monitor Customer’s use of the Software and collect and compile Aggregated Statistics. As between Axero and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Axero. Customer agrees that Axero may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.

3. ACKNOWLEDGEMENTS

3.1 Responsibility for Manner of Use. Customer is responsible and liable for all uses of the Software and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement, including, but not limited to, ensuring that use of the Software by Customer and its Users 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. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Users, and any act or omission by a User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Users aware of this Agreement’s provisions as applicable to such User’s use of the Software, and shall cause Users to comply with such provisions.

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 non-exclusive, royalty-free, worldwide 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). Customer may, but is not required to, provide Axero with Feedback, in which case Axero may use all Feedback freely without any restriction or obligation. Customer hereby assigns to Axero on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Axero is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Axero is not required to use any Feedback.

3.3 Equipment. Customer shall be responsible for ensuring that its systems, equipment, and infrastructure meet the minimum system requirements necessary to access and use the Software effectively. Customer shall also ensure the compatibility of its own systems with the Software by maintaining the necessary updates, configurations, and settings as specified by Axero. Customer shall be solely responsible for configuring permissions on the Software and for the security and confidentiality of its login credentials, user accounts, passwords, and any other authentication mechanisms used to access the Software.

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 Documentation. If Customer does not agree to abide by the applicable terms for any such Third-Party Software, then Customer should not install or use the Software.

For self-hosted 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 the Software on their servers, and Customer agrees that if it installs the Third-Party Software, Customer shall agree to the terms to install such Third-Party Software (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.

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, available at https://axerosolutions.com/legal/data-processing-addendum, forms part of this agreement except for customers who utilize a self-hosted (on-premise) version of the Software, for whom the Data Processing Addendum does not apply.

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. Customer will pay Axero the invoiced amount within 15 days from receipt of invoice, unless otherwise specified in an applicable Order. 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 reserves the right to change the fees for the License at any time and for any reason provided, however, that such change shall not go into effect until the Renewal Term and Axero shall give at least sixty (60) days prior written notice to the Customer.

6.3 Past Due Charges. If any charges are not received from Customer by the due date, then at Axero’s discretion, without limiting Axero’s other rights and remedies: (i) Axero may charge interest on the past due amount 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; (ii) Customer shall reimburse Axero for all reasonable costs incurred by Axero in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, Axero may suspend, without liability to Customer or its Users, Customer’s and its Users’ access to any portion or all of the Software until such amounts are paid in full.

6.4 Payment Disputes. If Customer has a good-faith disagreement about the amounts charged on an invoice, Customer must notify Axero in writing within five (5) days of the invoice in dispute and the parties will work together to resolve the dispute within 15 days of such notice. If no resolution is agreed, each Party may pursue any remedies available under the Agreement or applicable laws.

7. TERM

7.1 License Term. The initial term of the License 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 “Renewal Term” and collectively, the Initial License Term and each License Renewal Term shall be referred to as the “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 may provide Customer with notice of non-payment of any amount due. 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 terminate or 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, where such breach is not cured by the breaching Party within thirty (30) days after receipt of written notice thereof from the other Party. Notwithstanding the foregoing, Axero may terminate this Agreement immediately if Customer breaches any of its obligations under Clause 2.3 (Restrictions on Use) or Clause 12 (Confidentiality).

8.3 Termination for Bankruptcy. Either Party shall have the right to terminate this Agreement immediately on written notice 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 Obligations on Termination. Upon any termination of this Agreement, (i) the License shall immediately 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 a backup file (.bak) containing 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 the effective date of termination. If Axero terminates this Agreement for cause, Customer will promptly pay all unpaid fees due through the end of the Term. Except as expressly set forth herein, no expiration or termination will affect Customer’s obligation to pay all fees that may have become due before such expiration or termination or entitle Customer to any refund.

8.5 Continuing Obligations. All clauses of this Agreement which by their nature should survive expiration or termination will survive expiration or termination, including, without limitation, accrued rights to payment, confidentiality obligations, intellectual property ownership, warranty disclaimers, defense and indemnification obligations, and limitations of liability.

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 (each a “Claim”) relating to or arising from (i) any breach by Customer of any of its representations, warranties, or covenants hereunder; (ii) Customer’s or a User’s negligence or willful misconduct; (iii) use of the Software in combination with data, software, hardware, equipment, or technology not provided by Axero or authorized by Axero in writing; (iv) modifications to the Software not made by Axero; (v) the Content, and/or Axero’s use thereof; or (vi) unauthorized use or use by Customer or a User of the Software in a manner and for purposes not covered or authorized under this Agreement; provided, that, in any event, Customer may not settle any Claim against Axero unless Axero consents to such settlement, and further provided that Axero will have the right, at its option, to defend itself against any such Claim or to participate in the defense thereof by counsel of its own choice.

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) incurred by Customer resulting from any third-party claims, suits, or demands (“Third-Party Claim”) that the Software, or any use of the Software in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights, provided that Customer notifies Axero in writing of such Third-Party Claim within thirty (30) days of knowledge of such Third-Party Claim, cooperates with Axero, and allows Axero sole authority to control the defense and settlement of such Third-Party Claim. If a Third Party-Claim is made or appears possible, Customer agrees to permit Axero, at Axero’s sole discretion, to (A) modify or replace the Software, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Axero determines that neither alternative is reasonably available, Axero may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Clause 9.2 will not apply to the extent that the alleged infringement arises from: (A) use of the Software in combination with data, software, hardware, equipment, or technology not provided by Axero or authorized by Axero in writing; (B) modifications to the Software not made by Axero; (C) Content; or (D) Third-Party Software.

9.3 Notice of Infringement. To the extent permitted by applicable law, Customer’s failure to notify Axero of any Third-Party Claim within the thirty (30) day period referenced above shall be deemed a waiver of Axero’s defense and indemnity obligations under Clause 9.2.

9.4 Sole Remedy. THIS CLAUSE 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND AXERO’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

10. LIMITATION OF LIABILITY

10.1 Limitation of Liability. IN NO EVENT WILL AXERO BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER AXERO WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL AXERO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO AXERO UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

10.2 Application of and Basis for Limitations. The indemnity under Clause 9, the limitations of liability in this Clause 10, and the limited warranty under Clause 11 apply to the maximum extent permitted by applicable law to any damages or other liability, however caused 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. Additionally, Customer agrees that the 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 essential elements of the agreement between Axero and Customer.

10.3 Insurance by Axero. During the Term of this Agreement, Axero will obtain and maintain in full force and effect liability insurance with coverage and minimum limits of liability as follows: (i) Commercial General Liability Insurance or equivalent, with minimum limits of $1,000,000 Each Occurrence and $2,000,000 Aggregate; (ii) Workers’ Compensation & Employers Liability Insurance as required by the state in which Axero has employees; (iii) Cyber/Errors and Omissions liability insurance, with a limit of $5,000,000; and (iv) Umbrella Liability Insurance, with a minimum limit of $4,000,000. Upon written request, Axero will provide the Customer a certificate of insurance evidencing its insurance policies. Axero’s insurance policies will not be considered as evidence of Axero’s liability.

11. WARRANTY AND DISCLAIMER

11.1 Axero shall use reasonable efforts consistent with prevailing industry standards to maintain the Software in a manner which minimizes errors and interruptions. Software may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Axero or by third-party providers, or because of other causes beyond Axero’s reasonable control, but Axero shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. ANY WARRANTIES HEREUNDER DO NOT APPLY, AND AXERO STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY SOFTWARE.

11.2 EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN CLAUSE 11, THE SOFTWARE IS PROVIDED “AS IS” AND AXERO HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. AXERO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN CLAUSE 11.1, AXERO MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

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.

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 Disclosing 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 Disclosing Party’s Confidential Information.

12.2 Nondisclosure of Agreement; Announcement of Relationship. The terms of this Agreement shall not be disclosed by either Party without the consent of the other Party with the exception that Axero may use the Customer’s logo on Axero’s website without consent.

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. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from expiration or termination of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

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 Assignment; 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 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 under this Agreement shall be in English and addressed as specified in the Agreement. Notices will be deemed given a) upon confirmed delivery if by email, registered or certified mail, or personal delivery; or (b) two days after mailing if by overnight commercial delivery.

13.6 Governing Law. This Agreement shall be governed by laws of 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 reasonable fees for attorneys and expert witnesses) incurred with respect to bringing and maintaining any such action.

13.8 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Clause 12 (Confidentiality) or, in the case of Customer, Clause 2.3 (Restrictions on Use), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

13.9 Entire Agreement. This Agreement, including the Order and these Terms, form the entire agreement between the Parties. This Agreement supersedes, and these Terms 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.

13.10 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.