1. DEFINITIONS

 

​"Affiliate" - any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

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“Agreement” - this End Client Master Subscription Agreement.

 

"Axosnet” or “the Company” - Axosnet Ltd Co. described in Section 12 (Notices, Governing Law, and Jurisdiction). 

 

“Beta Services” - those services that are in an advanced stage of development that are not generally available to Clients and may be offered as a Pilot Project.

 

"Client” - the individual or entity who is the User of the Services that is accepting this Agreement, or applicable Affiliates of the Client or entity (also named as End Client).

 

“Client's Data” - electronic data and information submitted by or for the Client to the Purchased Subscriptions or collected and processed by or for the Client using the Purchased Subscriptions, excluding Content and Non-Axosnet Applications.

 

“Confidential Information” - all proprietary or non-public information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, which is designated as Confidential Information or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. The Confidential Information of the Client includes the Client's Data and Personal Data; and Axosnet’s Confidential Information includes the Services and Content, the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by Axosnet. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to 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, (d) was independently developed by the Receiving Party or (e) be disclosed by an authority, derived from a court order to the Receiving Party.

 

“Content” - information obtained by Axosnet from available sources and/or provided to the public to Client pursuant to an Order Form, as more fully described in the Documentation.

 

“Documentation” - online user guides, documentation, and help and training materials, as updated from time to time, accessible via http://help.axosnet.com or any other medium that Axosnet provides.

 

“Malicious Code” - code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

 

“Marketplace” - an online directory, catalog or marketplace of applications that interoperate with the Services.

 

"Non-Axosnet Applications" - a web-based or offline software application that is provided by Client or a third party and interoperates with a Service, including, for example, an application that is developed by or for Client, is listed on a Marketplace, or is in research and development or with a similar designation.

 

“Order Form” - an End Client ordering document specifying the Services to be provided hereunder that is entered into between the Client and Axosnet’s Partner.

 

“Personal Data” - any data, information or record that directly or indirectly identifies to a person or relates to an identifiable person, which includes, among others, name, address, telephone number, email address electronic, date of birth, and any other personally identifiable information that Axosnet process in relation to this Agreement.

 

"Purchased Subscriptions" - Services that the Client or their Affiliate purchases under an Order Form.

 

“Services” - the Axosnet products and services that are offered and are in General Availability (GA), including components with User interface and/or background processing. The Services exclude Content and Non-Axosnet Applications.

 

“Standard Support” - the service included in the Purchased Subscriptions through which the Subscriptions are monitored and has a service platform (Service Desk) to record all incidents reported by Clients in order to provide a solution according to the SLAs of each Purchased Subscription.

 

This service includes the following:
- To answer doubts about the use of Purchased Subscription (no training).
- To resolve availability issues for Purchased Subscription.
- To resolve operational issues (bugs) related to Purchased Subscription.
- To learn about new functionality releases, improvements and maintenance windows related to Purchased Subscription.

 

"Technological Partners" - those third parties with which Axosnet has signed License Agreements or alliances that interact with the Services.

 

“User(s)” - an individual who is authorized by the Client to use a Purchased Subscription, for whom the Client has ordered the Service, and to whom the Client (or Axosnet at the request of the Client) has supplied a user identification and password. Users may include, for example, Client employees, consultants, contractors, and agents, and third parties with which the Client transacts business.

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THIS AGREEMENT GOVERNS CLIENT ACQUISITION AND THE USE OF AXOSNET SERVICES.

 

AXOSNET LTD CO., DECLARES TO BE A COMPANY CONSTITUTED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, UNITED STATES OF AMERICA. AND THAT CLIENT LEGAL REPRESENTATIVE HAS THE LEGAL POWERS NEEDED AND SUFFICIENT TO OBLIGATE ITS REPRESENTATIVE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, WHICH HAS NOT BEEN MODIFIED OR REVOKED IN ANY WAY.

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THE CLIENT ACCEPTS THE TERMS OF THIS AGREEMENT BY EXECUTING AN AXOSNET PARTNER AGREEMENT THAT REFERENCES TO THIS AGREEMENT. THE CLIENT DECLARES THAT BY EXECUTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THE CLIENT REPRESENTS THAT CLIENT HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF THE CLIENT DOES NOT HAVE SUCH AUTHORITY, OR IF THE CLIENT DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, THE CLIENT MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. AXOSNET ACCEPTS THE TERMS OF THIS AGREEMENT UPON COMMENCING PROVIDING THE SERVICES. 
               
The Client may not access the services if it is a direct competitor of Axosnet, except with the prior written consent of Axosnet. In addition, the Client may not access the services for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes.

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The Client may access or register for a free trial of the services, when Axosnet makes it available to the Client. The terms and conditions of this Agreement shall govern the free trials, however Axosnet may establish additional terms and conditions for the use of the free trial, which should be considered as incorporated into the terms and conditions of this Agreement, being legally binding.

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This Agreement is effective between the Client and Axosnet as of the date the Client accepts this Agreement through an Axosnet Partner Agreement.

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2. AXOSNET RESPONSIBILITIES

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2.1. Provision of Purchased Subscriptions. Axosnet will (a) make available to Client pursuant to the Agreement, the Services, Content, and the applicable Order Forms. (b) Provide Standard Support at no additional charge. (c) Use commercially reasonable efforts to make the online Purchased Subscriptions available 99.9% on time, except for: (i) planned downtime according to the annual calendar indicated by Axosnet. (ii) Any unavailability caused by circumstances beyond Axosnet reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (as long as employees, contractors, etc., of Axosnet are not involved), Internet service provider failure or delay, Non-Axosnet Application, or denial of service attack.

 

2.2. Protection of Client Data. Axosnet will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of the Client's Data in accordance with all applicable laws. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of the Client's Data by Axosnet personnel except in the following assumptions: (a) to provide the services of the Purchased Subscriptions and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.2 (Compelled Disclosure) below, or (c) as Client expressly permits in writing.

 

2.3 Axosnet Personnel. Axosnet will be responsible for the performance of Company personnel (including employees and contractors) and their compliance with Company obligations under this Agreement, except as otherwise specified herein.

 

2.4 Beta Services. Axosnet may invite the Client to try Beta Services at no charge. Client may accept or decline any such trial in Client sole discretion. Beta Services will be clearly designated as “beta,” “pilot,” “limited release,” “developer preview,” “non-production,” “evaluation” or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered Services under this Agreement, do not have Standard Support, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services is in General Provision. Axosnet may discontinue Beta Services at any time in Axosnet sole discretion and may never make them generally available. Axosnet will have no liability for any harm or damage arising out of or in connection with a Beta Service.

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3. USE OF SERVICES AND CONTENT

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3.1 Subscriptions. The Services of Axosnet are purchased as subscriptions. Unless otherwise provided in the applicable Order Form during an active subscription period the Client can extend the scope of the subscription, in which case the Client must pay additionally the price negotiated in the current subscription. The added subscriptions will terminate on the same date as the current subscriptions.

 

3.2 Usage Limits. Purchased Subscriptions are subject to usage limits specified in Order Forms. Unless otherwise specified: (a) a quantity in an Order Form refers to limits of Use and only the scope defined in the Order Form can be accessed. (b) a User may be reassigned to a new individual that replaces another that no longer requires the use of Purchased Subscriptions.

 

If the Client exceeds a contractual use limit, Axosnet will notify the Client, so the Client can attempt to reduce it so that it meets that limit. If, despite the efforts of Axosnet, the Client cannot or does not want to comply with the contractual use limit, after the second notification by Axosnet, the Client will have to formalize without delay an Order Form for additional quantities of the applicable Services or Content, and pay the bill to the Partner for excess use in accordance with Section 5.2 (Invoicing and Payment), in case the additional Order Form and its respective payment is not executed, Axosnet will not be obliged to provide Services in excess of the Limits of Use, without this generating any responsibility for Axosnet.

 

3.3 Client Responsibilities. Client will be responsible: (a) for Users’ compliance with this Agreement. (b) for the accuracy, quality and legality of Client's Data and Personal Data, as well as the means by which the Client acquired Client's Data. (c) of using commercially reasonable efforts to prevent unauthorized access to or use of the Purchased Subscriptions and notify Us promptly of any such unauthorized access or use. (d) of using the Purchased Subscriptions only in accordance with the Documentation and applicable laws and government regulations. (e) That the User's password should not be shared with any other person. (f) to comply with terms of service of Non-Axosnet Applications with which the Services are used.

 

3.4 Usage Restrictions. Client will not (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than Client or Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Client own intranets or otherwise for Client own internal business purposes or as permitted in the Documentation, (k) access any Service or Content in order to build a competitive product or service, or (l) reverse engineer any Service (to the extent such restriction is permitted by law).

 

3.5 External-Facing Services. If Client acquires a Subscription of Services for creation and hosting of external-facing websites, Client will comply with and be responsible for Users’ compliance with the Terms of Use and be solely responsible for complying with applicable law in any use of cookies or other tracking technologies on such websites.

 

3.6. Removal of Content and Non-Axosnet Applications. An Axosnet technological partner may require the removal of Content if Axosnet received information that the Content provided by the Client and/or a Non-Axosnet Application hosted by the Client in a Service, may violate the applicable law, third party rights or the External-Facing Services.

 

Axosnet will notify the Client of the situation, and in such case, the Client will quickly eliminate the Content, immediately deactivate, or modify the Non-Axosnet Applications of its systems to resolve the possible violation.

 

If the Client does not carry out the required action in accordance with the above, Axosnet may deactivate the Purchased Subscriptions, the Content, Service and / or Non-Axosnet Applications, until the potential violation is resolved without generating any responsibility for Axosnet.

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4. NON-AXOSNET PROVIDERS

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4.1. Acquisition of Non-Axosnet Products and Services. Axosnet or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, Non-Axosnet Applications and implementation and other consulting services. Any acquisition by Client of such Non-Axosnet products or services, and any exchange of data between Client and any Non-Axosnet provider, is solely between Client and the applicable Non-Axosnet provider. Axosnet does not warrant or support Non-Axosnet Applications or other Non-Axosnet products or services, whether or not they are designated by Axosnet as “certified” or otherwise.

 

 

4.2. Non-Axosnet Applications and Client Data. If Client installs or enables a Non-Axosnet Application for use with a Purchased Subscription, the Client must grant Axosnet authorization to allow the provider of that Non-Axosnet Application to access the Client's Data as required for the interoperation of that Non-Axosnet Application with the Purchased Subscription. Axosnet is not responsible for any disclosure, modification or deletion of the Client's Data resulting from access by an authorized Non-Axosnet Application.

 

4.3. Integration with Non-Axosnet Applications. The Services may contain features designed to interoperate with Non-Axosnet Applications. To use such features, the Client may be required to obtain access to Non-Axosnet Applications from their providers and may be required to grant Axosnet access to the Client account(s) on the Non-Axosnet Applications. 

 

If the provider of a Non-Axosnet Application ceases to make the Non- Axosnet Application available for interoperation with the corresponding Service and/or if there is any change or update of the access credentials to the Non-Axosnet Application, without having informed Axosnet in reasonable terms, Axosnet may stop providing those features of the Service until the supplier reactivates the Non-Axosnet Application by Axosnet and / or the Client update the access information to Axosnet, without the Client being entitled to any refund, credit or other compensation for the time in which the corresponding Services were disabled. 

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5. FEES AND PAYMENT FOR PURCHASED SUBSCRIPTIONS

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5.1. Fees. Client will pay all fees specified in Order Forms, according to the following conditions: (a) the fees are based on the Purchased Subscriptions and not in the actual usage. (b) Payment obligations are non-cancelable, and fees paid are non-refundable for the term of the Order Form. (c) The limits of use acquired cannot be decreased during the relevant Purchased Subscription term.

 

5.2. Invoicing and Payment. The Client will pay Axosnet Partner the Purchased Subscriptions. Purchased Subscription charges will be made in advance, either annually, or in accordance with the billing frequency indicated on the corresponding Order Form. The activation of the Purchased Subscriptions will be made once payment of the applicable Fees is received. 

 

5.3. Suspension of Service and Acceleration. If the Client is delayed in any payment obligations, without limiting any other legal rights and resources, Axosnet may suspend the Purchased Subscriptions under the Order Form until said amounts are fully paid. Axosnet will notify the Client the due date of each Purchased Subscriptions in accordance with Section 12.2 (Manner of Giving Notice), and in case of delay the Company system will proceed automatically with the suspension of the Services.

 

5.4. Taxes. Axosnet fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessed by any jurisdiction whatsoever (collectively, “Taxes”). Client is responsible for paying all Taxes associated with the acquisition of the Services related to this Agreement. If Axosnet has the legal obligation to pay or collect Taxes for which Client is responsible under this Section 5.5, those fees will be billed and Client will pay that amount unless the Client provides Axosnet with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Axosnet is solely responsible for taxes assessable against Axosnet based on Axosnet income, property, and employees.

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5.5. Future Functionality. Client agrees that the acquisition of the Purchased Subscriptions is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Axosnet regarding future functionality or features.

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6. PROPRIETARY RIGHTS

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6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Axosnet and the Company’s technological partners reserve all of the right, title, and interest in and to the Services and Content, including all of Axosnet related intellectual property rights. No rights are granted to the Client hereunder other than as expressly set forth herein. 

 

6.2. Subscription Granted by Axosnet. Axosnet grants a limited-term subscription, under the Company’s applicable intellectual property rights, to use Content acquired by Client pursuant to Order Forms, subject to those Order Forms, this Agreement, and the Documentation.

 

6.3. Authorization Granted by the Client to Host the Client's Data and Applications. The Client grants Axosnet and its Affiliates a limited authorization during the term of the Purchased Subscriptions, to host, copy, transmit and display the Client's Data, and any Non-Axosnet Applications and/or software component, created by or for the Client for use of the Services solely in connection with providing the service of the Purchased Subscriptions in accordance with an Order Form and with this Agreement. Subject to the limited rights expressly granted in this document, Axosnet acquires no right, title or interest in or to any information provided by Client, including but not limited to the Client's Data, or any Non-Axosnet Application and / or software component.

 

6.4. Authorization Granted by the Client for Feedback Use. The Client grants Axosnet and its Affiliates a perpetual, irrevocable, royalty-free authorization to use and incorporate into the Services any suggestion, request for improvement, recommendation, correction, or other feedback provided by the Client or Users relating to the operation of the Services.

 

6.5 Marketing. Axosnet may use the Client’s name or logo in connection with general external business development and marketing after approval by the appropriate person(s) at the Client. The Client may terminate this general usage at any time with written notice to Axosnet.

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7. CONFIDENTIALITY

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7.1. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of the same kind: (a) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (b) Unless otherwise requested by the Disclosing Party in writing, to limit the access to Confidential Information, the Receiving Party may share to his own employees, collaborators and contractors and those of its Affiliates who need that access for purposes consistent with this Agreement, with the understanding that they have signed confidentiality agreements with the Receiving Party, containing protections no less rigorous than those included in this Agreement.

 

Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its employees, collaborators, contractors, Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 7.2.

 

7.2. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling providing secure access to that Confidential Information.

 

7.3. Personal Data Protection. Axosnet and the Client accept and acknowledge that in the event that derived from the exchange of Confidential Information under this Agreement, Axosnet will have access to physical or electronic documents that contain Personal Data collected by the Client, Axosnet undertakes not to carry out its treatment without authorization, complying with the applicable provisions of law in the matter. 

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8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

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8.1. Representations. The Client states that has entered into this Agreement and the respective Order Forms and has the legal power to do so.

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8.2. Axosnet Warranties. Axosnet warrants that (a) The provision of the Services and the Purchased Subscriptions comply with the necessary safeguards which can be administrative, physical, and technical, applicable for the protection of the security, confidentiality, and integrity of the Client's Data. (b) Axosnet will not materially decrease the overall security of the Purchased Subscriptions during the subscription term. (c) The Purchased Subscriptions will perform materially in accordance with the Order Forms and the applicable Documentation. (d) It will not substantially reduce the functionality of the Purchased Subscriptions during a subscription period, except as indicated in section 4.3. (Integration with Non-Axosnet Applications). (e) Will comply with the Time for Response and Incident Resolution, in accordance with the provisions of the Order Form, with the commitment not to fail to comply with such Times in a period of 3 (three) consecutive months. (f) Purchased Subscriptions and Content will not introduce Malicious Code in their systems.

In case of breach of a previously indicated warranties, the Client has the exclusive resources described in sections 11.3 (Termination) and 11.4 (Refund or Payment upon Termination).

 

8.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

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9. MUTUAL INDEMNIFICATION

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9.1. Indemnification by Axosnet. Axosnet will defend the Client against any claim, demand, suit or proceeding made or brought against the Client by a third party alleging that the use of a Purchased Subscriptions in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against the Client”), and will indemnify the Client from any damages, attorney fees and costs finally awarded as a result of, or for amounts paid by the Client under a court-approved settlement of, a Claim Against the Client, as long as the Client: (a) Notifies Axosnet in writing of the Claim against the Client within a reasonable period for the preparation of the defense. (b) Allows Axosnet exclusive control of the defense and the resolution of the Claim against the Client. Axosnet will inform the Client of the status of the Claim against the Client so that the latter has knowledge of its progress. In the event that the Client does not allow exclusive control, the Client must release Axosnet from any responsibility. (c) Provides all reasonable assistance, at the expense of Axosnet.

 

If Axosnet receive information about an infringement or misappropriation claim of intellectual property rights related to a Service, Axosnet may at its sole discretion and at no cost to the Client (a) modify the Service so that it no longer infringes or misappropriates, without breaching the warranties under Section 8.2 (Axosnet Warranties). (b) Obtain a license for the Client to continue with the use of that Service in accordance with this Agreement. (c) Cancel the Purchased Subscriptions for that service prior written notice upon 30 calendar days and in this case Axosnet will refund the pre-paid fees that cover the rest of the period of the canceled Purchased Subscriptions. 

 

The above defense and indemnification obligations do not apply to the extent a Claim Against the Client arises from Client’s Data, a Non-Axosnet Application, or the Client breach of this Agreement.

 

9.2. Indemnification by the Client. The Client will defend Axosnet against any claim, demand, suit or proceeding made or brought against Axosnet by a third party alleging that the Client's Data, or Client’s use of any Service or Content in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Axosnet”), and will indemnify Axosnet from any damages, attorney fees and costs finally awarded against Axosnet as a result of, or for any amounts paid by Axosnet under a court-approved settlement of, a Claim Against Axosnet, as long as Axosnet: (a) Notifies the Client without delay in writing of the Claim against Axosnet within a reasonable period for the preparation of the defense. (b) Allows the Client the exclusive control of the defense and the solution of the Claim against Axosnet. The Client will inform Axosnet of the status of the Claim against Axosnet so that the latter has knowledge of its progress (except when the Client cannot resolve the Claim favorably against Axosnet, the Client must release Axosnet from any responsibility). (c) Provides the Client all reasonable assistance, at the Client's expense.

 

9.3. Exclusive Remedy. Section 9 establishes the exclusive responsibility of the party that indemnifies the other and the exclusive remedy of the party compensated against the other party for any type of claim described in this Section 9.

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10. LIMITATION OF LIABILITY

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10.1 Limitation of Liability. NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CLIENT HEREUNDER IN THE 10 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY THE CLIENT IN THE 10 MONTHS PRECEDING THE INCIDENT. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT (i) LIMIT THE CLIENT'S PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR PURCHASED SUBSCRIPTIONS); or (ii) APPLY TO ANY INDEMNIFICATION OBLIGATIONS FOR THIRD PARTY CLAIMS HEREUNDER.

 

10.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

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11. TERM AND TERMINATION

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11.1 Term of Agreement. The Agreement will have an indefinite term while an Order Form duly signed by the Parties is still in force. 

 

11.2. Term of Purchased Subscriptions. The term of each Purchased Subscription will be the one indicated in the corresponding Order Form. Purchased Subscriptions must be renewed in writing by the parties upon termination of the subscription. 

 

11.3. Termination. A party may terminate this Agreement for justified reason in case: (a) There is a breach of the obligations acquired under this Agreement, and the same is not remedied within 30 business days, after its written notification (b) If the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.

 

In addition to the above, the Client may terminate this Agreement at their convenience by giving written notice to Axosnet at least 30 business days prior to termination. In such a case, no refund of any pre-paid rate by the Client will apply.

 

11.4. Refund or Payment upon Termination. If this Agreement is terminated by the Client in accordance with Section 11.3 subparagraph (a) and (b) (Termination), the pre-paid rates covering the rest of the term of all the Order Forms after the date will be refunded to Axosnet Partner effective on termination.

 

If this Agreement is terminated by Axosnet in accordance with Section 11.3 subparagraph (a) and (b), or thus agreeing to the interests of the Client, the Client shall pay any unpaid charges that cover the rest of the period of all Forms of Order.

 

In no case will the termination relieve the Client of its obligation to pay the fees due to Axosnet for the period prior to the effective date of termination.

 

11.5. The Client's Data Portability and Deletion. Upon request by the Client made within 30 calendar days after the effective date of termination or expiration of this Agreement, Axosnet will make the Client's Data available to the Client for export or download as provided in the Documentation. After that 60-day period, Axosnet will have no obligation to maintain or provide the Client's Data and will thereafter delete or destroy all copies of the Client's Data in Axosnet systems or otherwise in Axosnet possession or control as provided in the Documentation, unless legally prohibited.

11.6. Surviving Provisions. The Sections titled “Proprietary Rights", "Confidentiality," "Disclaimers," "Mutual Indemnification," "Limitation of Liability," "Notices, Governing Law, and Jurisdiction," and "General Provisions" will survive any termination or expiration of this Agreement.

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12. NOTICES, GOVERNING LAW AND JURISDICTION

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12.1. General. In this section the Client will find who should direct notices to under this Agreement, what law will apply in any lawsuit arising out of or in connection with this Agreement, and which courts have jurisdiction over any such lawsuit.