Effective Date
Defined by the applicable Order
Entity
Axle Tech, Inc.
Agreement
These Terms and Conditions, including any attached exhibits, and the order to which these Terms and Conditions are attached (“Order”) are made part of the Master Services Agreement (collectively, this “Agreement”) between Axle Tech, Inc. (“Axle”) and the customer identified in the Order (“Customer”). Axle and Customer may each be referred to herein as a “Party” and collectively as the “Parties.” The Parties enter into this Agreement as of the effective date set forth in the Order (the “Effective Date”).
Contents
01
Definitions
02
Axle Responsibilities
2.1 Provision of the Service
Subject to the terms and conditions of this Agreement and during the Term, Axle will: (a) make the Service available to Customer for use by Authorized Users solely for the internal business operations of Customer; (b) provide Customer with Axle’s standard support services and Documentation to assist Customer in its use of the Service; (c) if purchased by Customer in a Order, provide to Customer the Professional Services described in such Order; and (d) use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, except for planned downtime of which, to the extent exceeding fifteen (15) continuous minutes, Axle gives at least forty-eight (48) hours’ advance notice to Customer via the Service.
2.2 Updates and Upgrades
The terms of this Agreement will also apply to updates and upgrades of the Service subsequently provided by Axle to Customer. Axle may update the functionality, user interfaces, usability, and Documentation from time to time in its sole discretion as part of its ongoing mission to improve the Service.
2.3 Protection of Customer Data
Axle will maintain commercially reasonable administrative, physical, and technical safeguards designed to prevent unauthorized access to or use of Customer Data. The processing of Customer Data is further governed by the Data Processing Agreement available at https://axleaccess.com or as separately executed by the Parties, which is incorporated herein by reference.
2.4 Compliance with Laws
Axle will comply with all laws applicable to Axle’s provisioning of the Service to its customers generally (i.e., without regard to the specific nature of the Customer Data or Customer’s particular use of the Service).
03
Access to and Use of the Service
3.4 Customer Enabled Third-Party Provided Products, Services, and Data
If Customer elects to enable or use any third-party provided products, services, or data for use with the Service: (a) any use by Customer or its Authorized Users of such products, services, or data is solely the responsibility of Customer and is subject to the agreements and terms with the applicable providers thereof; (b) Axle does not guarantee, warrant, or offer support for any such products, services, or data; (c) Customer acknowledges that the providers of those products, services, or data may have access to Customer Data in connection with the interoperation of such products, services, or data with the Service, and Axle will not be responsible for any use, disclosure, modification or deletion of such Customer Data.
3.5 Third-Party Services
The Service may include certain features, including transcription services, that leverage Third-Party Services that utilize artificial intelligence technology (“AI Features”). Customer acknowledges and agrees that Customer Data will be transmitted to such Third-Party Services and that, as between the parties, Customer is solely responsible for its and its Authorized Users’ use of all AI Features. Customer accepts that, as AI Features utilize artificial intelligence technology, such features may provide Output that is inaccurate or inappropriate as a response to the input provided. Customer agrees, and shall cause its Authorized Users to agree, that Axle shall have no responsibility or liability arising from the provision of inaccurate or inappropriate Output or any decisions made in reliance on such Output, and that such decisions are made at its own risk. Customer acknowledges and agrees that the use of Third-Party Services, including the transmission of certain Customer Data to such Third-Party Services, is an integral and necessary part of Axle’s delivery of the Service. Customer agrees that Axle shall have no responsibility or liability arising from any use, storage, data breach, or deletion of such Customer Data by Third-Party Service Providers. Axle cannot guarantee the continued availability of Third-Party Services and may temporarily or permanently cease providing, without entitling Customer to refund, credit, or compensation, any particular Third-Party Services if the applicable Third-Party Service Provider suspends, modifies, or alters such Third-Party Services.
04
Fees
4.1 Fees, Invoicing, and Payment
Customer will pay all fees specified in the Order. Payment obligations are non-cancelable and, except as expressly set forth herein, fees paid are non-refundable. All fees will be invoiced by Axle in accordance with the terms set forth in the Order. Full payment for invoices issued must be received within thirty (30) days from Customer’s receipt of the invoice. If any fees owed by Customer (excluding amounts disputed in reasonable and good faith) have not been paid by the applicable due date, Axle reserves the right to apply a finance charge of one and a half percent (1.5%) per month on any outstanding balance, or the maximum permitted by law, whichever is lower, and be reimbursed for all expenses of collection.
4.2 Taxes
The fees are exclusive of, and Customer will be solely responsible for, all applicable taxes in connection with this Agreement, including any sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties (but excluding taxes based on Axle’s net income). Should any payment for the services provided by Axle be subject to withholding tax by any taxing authority, Customer will reimburse Axle for such withholding tax.
05
Proprietary Rights
5.1 Axle Property
Subject to the limited rights expressly granted to Customer hereunder, Axle reserves and retains, and as between Axle and Customer, Axle exclusively owns, all rights, title, and interest in and to the Service and the Output, including, in each case, all modifications, derivative works, upgrades, and updates thereto, and all related intellectual property rights therein. No rights are granted by Axle hereunder other than as expressly set forth herein. If Customer or any Authorized User provides Axle any feedback or suggestions regarding the Service, then Customer grants Axle an unlimited, irrevocable, perpetual, sublicensable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer or any Authorized User. Unless otherwise expressly set forth in the Order, Axle retains exclusive ownership of all work product created by Axle in connection with its performance of Professional Services.
5.2 Customer Data
As between Customer and Axle, Customer owns all rights, title, and interest in and to the Customer Data. Customer grants to Axle a worldwide, non-exclusive, royalty-free limited license during the Term to access, use, copy, store, distribute, transmit, modify, perform, display, and create derivative works of Customer Data only: (a) to provide, maintain, and update the Service and other Axle offerings; (b) to prevent or address service or technical problems; (c) as compelled by law; (d) as expressly permitted in writing by Customer; and (e) to provide necessary access to Third-Party Service Providers acting on Axle’s behalf, such as providers of AI Features, provided that such Customer Data shall not be used by Axle’s providers as training data for AI models. Subject to the limited licenses granted herein, Axle acquires no right, title or interest under this Agreement in or to any Customer Data.
5.3 Analyses
Customer acknowledges and agrees that Axle may, during and after the Term, (i) compile statistical and other information related to the performance, operation, and use of the Service, and (ii) collect, use, and analyze information derived from Customer Data in aggregated and de-identified form (collectively “Analyses”), to create statistical analyses, to improve and enhance the Service, and for research and development purposes in connection with the Service or any other Axle offerings. Axle retains all right, title, and interest, including all intellectual property rights, in and to Analyses.
06
Confidentiality
6.1 Definition
“Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including all copies thereof. Confidential Information of Axle includes the Service (including its software and content), the Output, and the work product created from Axle’s performance of any Professional Services, and Confidential Information of each Party includes the terms of this Agreement. However, Confidential Information will not include any information that: (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use of or reliance on the Confidential Information of the Disclosing Party.
6.2 Protection
The Receiving Party will: (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of the Receiving Party’s employees, contractors, and agents who need such access for purposes consistent with this Agreement and who are subject to confidentiality obligations at least as restrictive as those herein. The Receiving Party will provide prompt written notice to the Disclosing Party of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information. Upon request of the Disclosing Party during the Term, the Receiving Party will promptly return, or at the Disclosing Party’s option destroy, any or all Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control.
6.3 Compelled Disclosure
The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s expense, if the Disclosing Party wishes to contest the access or disclosure.
07
Representations, Warranties, and Disclaimers
7.1 Mutual Representations
Each Party represents that: (a) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; and (b) the execution, delivery, and performance of this Agreement are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.
7.2 Axle Warranties
Axle warrants that: (a) the Service will perform materially in accordance with the applicable Documentation; (b) Axle will not materially decrease the functionality of the Service; and (c) Axle will perform Professional Services in a professional manner. If Axle breaches any of the foregoing warranties in this Section, Customer’s exclusive remedy and Axle’s entire liability will be the correction of the breach, or if Axle cannot substantially correct the breach within a commercially reasonable amount of time, Customer may terminate this Agreement and Axle will refund to Customer any prepaid fees covering the period remaining in the Term after the effective date of such termination.
08
Indemnification
8.1 Axle Indemnification
Axle will defend Customer from and against any lawsuit or proceeding brought by a third party to the extent alleging that Customer’s use of the Service as permitted hereunder infringes or misappropriates such third party’s intellectual property rights, and Axle will indemnify Customer for any damages and any reasonable attorneys’ fees finally awarded against it arising from such lawsuit or proceeding; provided, however, that Axle will have no liability under this Section to the extent any such lawsuit or proceeding arises from: (a) Customer Data, any Third-Party Services, or any other third-party provided products, services, or data; (b) Customer’s or any of its Authorized Users’ negligence, misconduct, or breach of this Agreement; or (c) any modification or combination of the Service that is not performed by Axle.
8.2 Customer Indemnification
Customer will defend Axle from and against any lawsuit or proceeding brought by a third party to the extent alleging that (a) any Customer Data infringes, misappropriates, or otherwise violates the rights, including privacy and publicity rights, of any other party, or (b) that Customer’s or any Authorized User’s particular use of the Service or use or provision of any Customer Data violates any applicable laws or government regulations, and Customer will indemnify Axle for any damages and any reasonable attorneys’ fees finally awarded against it arising from such lawsuit or proceeding; provided, however, that Customer will have no liability under this Section to the extent any such lawsuit or proceeding arises from Axle’s negligence, misconduct, or breach of this Agreement.
09
Limitation of Liability
9.1 Exclusion of Certain Damages
IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9.2 Liability Cap
EXCEPT FOR CUSTOMER’S LIABILITY FOR ITS PAYMENT OBLIGATIONS UNDER SECTION 4 OR A PARTY’S LIABILITY FOR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, ITS BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6, OR FOR ITS WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID AND PAYABLE BY CUSTOMER TO AXLE HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE FIRST CLAIM GIVING RISE TO LIABILITY AROSE.
9.3 Scope
For the avoidance of doubt, the exclusions and limitations set forth in Section 9.1 and Section 9.2 will apply with respect to all legal theories of liability, whether in contract, tort, or otherwise. The Parties agree that the exclusions and limitations set forth in Section 9.1 and Section 9.2 allocate the risks between the Parties under this Agreement, and that they have relied on these exclusions and limitations in determining whether to enter into this Agreement.
10
Term, Termination, and Suspension
10.1 Term of the Agreement
The term of this Agreement commences on the Effective Date and, unless earlier terminated in accordance with the terms of this Agreement, will continue for the “Initial Term” specified in the Order (the “Initial Term”). Thereafter, this Agreement (including the Order) will automatically renew for successive additional periods of one (1) year each (each, a “Renewal Term”) unless either Party provides the other with written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or the then-current Renewal Term. Customer agrees that Axle may modify the fees for each Renewal Term by providing Customer with written notice of such modification at least sixty (60) days prior to the expiration of the Initial Term or the then-current Renewal Term, as applicable. The Initial Term and each Renewal Term, if any, are collectively referred to herein as the “Term.”
10.3 Termination for Cause
Either Party may terminate this Agreement effective after thirty (30) days’ written notice if the other Party materially breaches this Agreement and such breach is not cured within such thirty (30) day period. Upon any termination for cause by Customer, Axle will promptly refund Customer any prepaid fees covering the period remaining in the Term after the effective date of such termination. Upon any termination for cause by Axle, Customer will promptly pay Axle any unpaid fees covering the period remaining in the Term after the effective date of such termination.
10.4 Effects of Termination
In no event will any termination of this Agreement relieve Customer of its obligation to pay any fees payable to Axle for the period of time prior to the effective date of such termination. Upon any termination of this Agreement, Customer and all Authorized Users must immediately cease all use of the Service. For a period of thirty (30) days following any termination of this Agreement, Axle will, upon Customer’s request, provide Customer with an export of all current Customer Data in the format agreed by the Parties. After such thirty (30) day period, Axle will have no obligation to maintain or provide any Customer Data and Axle may, unless prohibited by applicable law, delete all Customer Data in its systems or otherwise in its possession or under its control in accordance with Axle’s then-current data retention and deletion policies. Subject to this Section, upon any termination of this Agreement and the Disclosing Party’s request, the Receiving Party will promptly return, or at the Disclosing Party’s option destroy, any or all Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control.
10.5 Survival
The sections titled “Protection of Customer Data,”, “Usage Restrictions,” “Customer Enabled Third-Party Provided Products, Services, and Data,” “Third-Party Services,” “Fees,” “Proprietary Rights,” “Confidentiality,” “Indemnification,” “Limitation of Liability,” “Termination for Cause,” “Effects of Termination,” “Survival,” “Dispute Resolution & Governing Law,” and “General Provisions” will survive any termination of this Agreement.
11
General Provisions
11.1 Attribution
Customer agrees that Axle may use Customer’s name and logo to indicate that Customer is a customer of Axle for the Service on Axle’s website, marketing materials, and in communications with existing or prospective Axle customers. Any such attribution will be consistent with Customer’s style guidelines or requirements as communicated to Axle by Customer.
11.2 Force Majeure
Except for payment obligations, neither Party will be liable hereunder by reason of any failure or delay in the performance of its obligations due to events beyond the reasonable control of such Party, which may include natural disasters, fires, epidemics or pandemics, riots, war, terrorism, denial of service attacks, internet outages, labor shortages, and judicial or government action.
11.3 Assignment
Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign or transfer this Agreement in its entirety, without the consent of the other Party, in connection with a merger or sale of all or substantially all of its assets. Any purported assignment in violation of this Section will be null and void. This Agreement will bind and inure to the benefit of the Parties, their respective successors, and permitted assigns.
11.4 Export Control
In its use of the Services, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer will not (and will not permit any of its users to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.
11.5 Notices
All notices under this Agreement will be in writing addressed to the Parties at the addresses set forth on the Order and will be deemed to have been duly given: (a) upon receipt if personally delivered or sent by certified or registered mail with return receipt requested; and (b) the first business day after sending by email or by next day delivery by a recognized overnight delivery service. Notices to Axle shall be sent to: Axle Tech, Inc., 20 W 22nd Street, Suite 1411-1412, New York, NY 10010, with an email copy to contact@axleaccess.com.
11.6 Relationship of the Parties; Third Party Beneficiaries
The Parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. There are no third-party beneficiaries to this Agreement.
11.7 Choice of Law and Jurisdiction
For any claim which is not subject to the above dispute resolution provision, each party agrees to submit and consent to the personal and exclusive jurisdiction in, and the exclusive venue of, the state and federal courts located within New York County, New York. In any dispute, New York law shall apply without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
11.8 Modifications to these Terms
Axle may modify these Terms and Conditions from time to time by posting an updated version at https://axleaccess.com and providing Customer with at least thirty (30) days’ prior written notice of any material changes. Material changes will take effect at the start of the next Renewal Term unless Customer terminates this Agreement before such effective date in accordance with the non-renewal provisions herein. Non-material changes (including clarifications, formatting updates, and changes required by applicable law) take effect upon posting. Continued use of the Service following the effective date of any modification constitutes acceptance of the modified Terms.
11.9 Waiver
No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right.
11.10 Severability
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in full force and effect.
11.11 Entire Agreement
This Agreement, including any addenda hereto and all Orders, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter hereof. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by each of the Parties. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order, the terms of such addendum or Order will prevail only with respect to the Service expressly set forth therein. Notwithstanding any language to the contrary therein, no terms or conditions stated in any Customer purchase order or other Customer order documentation (excluding Orders) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void. As used herein, the words “include” and “including” shall be deemed to be followed by the words “without limitation.”
