SaaS Agreement

THIS SOFTWARE AS A SERVICE AGREEMENT (THIS "AGREEMENT") IS A BINDING LEGAL AGREEMENT BETWEEN AXIAL COMMERCE, INC. ("AXIAL") AND THE COMPANY OR ENTITY ON WHOSE BEHALF YOU ARE EXECUTING THIS AGREEMENT AND REPRESENTS THE ENTIRE UNDERSTANDING BETWEEN CUSTOMER AND AXIAL WITH REGARD TO THE LICENSED MATERIALS. YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THE TERMS OF THIS AGREEMENT.

BY CUSTOMER’S EXPRESSION OF ASSENT IN ANSWER TO THE QUESTION "DO YOU ACCEPT ALL THE TERMS OF THE PRECEDING SOFTWARE AS A SERVICE AGREEMENT?" CUSTOMER INDICATES THAT IT INTENDS ITS EXPRESSION OF ASSENT TO SERVE AS CUSTOMER’S SIGNATURE TO THIS AGREEMENT AND TO HAVE THE SAME FORCE AND EFFECT AS THE USE OF A MANUAL SIGNATURE. IF CUSTOMER DOES NOT AGREE TO OR CANNOT COMPLY WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, (1) CUSTOMER MUST NOT EXPRESS ASSENT TO THE QUESTION "DO YOU ACCEPT ALL THE TERMS OF THE PRECEDING SOFTWARE AS A SERVICE AGREEMENT?" AND (2) CUSTOMER MUST DESTROY ALL COPIES OF THE LICENSED MATERIALS IN YOUR POSSESSION IMMEDIATELY.

The effective date of this Agreement is the date set forth on an Order Form or, if earlier, the date on which Customer downloads, installs, activates or uses the Software or Services (the “Effective Date”). Collectively, Axial and Customer may be referred to as the “Parties” or in the singular as “Party”.

1. Definitions.Capitalized terms not otherwise defined in this Agreement will have the meanings detailed below.
1. “Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Services.
2. “Authorized User” means an individual employee or contractor of Customer authorized by Customer to access and use the Services through Customer's account under this Agreement, and whom has been issued Access Credentials.
3. "Axial Materials" means all devices, documents, data, know-how, methods, processes, software and other inventions, works, technologies and materials, including any and all Software, Documentation, computer hardware, programs, reports and specifications, client software and deliverables that are proprietary to Axial and provided or used by Axial in connection with performing the Services.
4. “Confidential Information” means all nonpublic information, including, without limitation, business, financial and technical information, reasonably considered by a party to be valuable and proprietary and disclosed by one party (the “Disclosing Party”) to the other (the “Receiving Party”) before, on or after the Effective Date. Confidential Information may also include proprietary or confidential information of third parties that have disclosed such information to a party hereto in the course of its business. Confidential Information will not include information that the Receiving Party can prove (a) was already in its possession prior to disclosure by the Disclosing Party; (b) is independently developed by personnel of the Receiving Party who did not have access to the Disclosing Party’s Confidential Information; (c) is obtained from a third party who is not prohibited from transmitting the information to the Receiving Party by a contractual, legal or fiduciary obligation; or (d) is or becomes generally available to the public other than as a result of disclosure by the Receiving Party.
5. “Controlled Technology” means any software, documentation, technology or other technical data, or any products or services that include or use any of the foregoing, the export, re-export or release of which to certain jurisdictions or countries is prohibited, or requires an export license or other governmental approval, under any law, including, but not limited to, the US Export Administration Act and its associated regulations.
6. “Customer Data” means all electronic data or information submitted by Customer and its Authorized Users to the Services.
7. “Disclosing Party” has the meaning set forth in Section 1.4 above.
8. “Documentation” means the then current on-line user’s manuals made generally available by Axial and provided to Customer along with the Services.
9. “Error” means any failure of any Hosted Service to perform in accordance with this Agreement and the Documentation.
10. "Fees" has the meaning set forth in Section 6.1.
11. "Hosted Services" has the meaning set forth in Section 2.1(a).
12. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
13. “Order Form” means any ordering document for Customer’s purchases of Services from Axial that is duly executed or otherwise agreed to by both parties from time to time. Each such Order Form incorporates this Agreement by reference. An Order Form may or may not be required for access and/or use of the Services.
14. “Proprietary Rights” means patent rights, copyrights, trade secret rights and all other similar intellectual and industrial property rights of any sort throughout the world.
15. “Receiving Party” has the meaning set forth in Section 1.4 above.
16. “Services” has the meaning set forth in Section 2.1.
17. “Software” means Axial software applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Axial provides remote access to and use of as part of the Services, as described on a Order Formor which is otherwise downloaded, installed and/or accessed by Customer.
18. “Subscription Period” means the period of time specified in the applicable Order Form.
19. “Support Services” has the meaning set forth in Section 4.1.
2. Services; Order Forms; Point of Contact.
1. Subject to Customer’s timely payment of Fees due pursuant to Section 6, Axial will provide to Customer the following services ("Services"): (a) the hosting, management and operation of the Software for remote electronic access and use by the Customer and its Authorized Users ("Hosted Services") as described in one or more Order Forms; (b) the Support Services; and (c) such other services as may be specified in the applicable Order Form.
2. Order Forms will be effective only when executed or otherwise agreed to by both Parties. Any modifications or changes to the Services under any executed Order Form will be effective only if and when memorialized in a mutually agreed written change order signed by both Parties, provided, however, that for any Services provided on a limited basis (for example, on a per Authorized User basis), Customer may, at any time, increase or decrease the number of its licenses hereunder subject to a corresponding forward-going adjustment of fees to reflect these changes in accordance with the pricing set forth in an applicable Order Form.
3. Axial will use reasonable efforts to make the Hosted Service available twenty-four (24) hours per day, seven (7) days a week, excluding: (a) scheduled downtime for systems maintenance including, without limitation, diagnostics, upgrades, and operations reconfiguration; and (b) unscheduled downtime caused by other forces beyond the immediate control of Axial including, but not limited to, software defects, hardware failures, or downtime caused by Customer’s network or the conditions described in Section 10.
4. Customer will designate a representative to serve as Axial’s primary point of contact with respect to the Services. Customer may change its representative from time to time by providing written notice to Axial.

• Grant of License; Access Credentials; Restrictions.

1. Subject to the terms and conditions of this Agreement, Axial hereby grants to Customer, exercisable by and through its Authorized Users, a limited, nonexclusive, non-transferable right and license (a) to access and use the Hosted Services in accordance with the Documentation; and (b) to perform, display, execute, distribute and otherwise make available to Authorized Users, the Axial Materials solely to the extent necessary to access or use the Hosted Services. The license granted herein is limited to access and use during the Subscription Period by Authorized Users for whom Customer or Axial has issued Access Credentials; Customer acknowledges and agrees that it is liable for use of the Hosted Services by Authorized Users. Customer will have no right to receive or review the source code version of any portion of the Software.
2. Access Credentials may only be utilized by individual Authorized Users and may not be shared or used by or transferred or assigned to any other person without Axial’s consent. Customer acknowledges that Axial utilizes certain protocols to ensure proper use of Access Credentials and that Axial may require password changes in its sole discretion and communicate with Authorized Users via email from time to time to verify identity, use, and continued status as a valid Authorized User. Customer will cooperate with Axial, and will render all reasonable assistance requested by Axial, to assist Axial in identifying and preventing any use of or access to the Services in violation of this Agreement.
3. Unless otherwise authorized by Axial, Customer will access and use the Services solely for its own business purposes in accordance with this Agreement and any related Order Form (including any additional requirements and/or restrictions as set forth in such Order Form). Customer will not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, operate as a service bureau or managed service, or otherwise commercially exploit or make the Services available to any third party except as expressly contemplated by this Agreement; (b) modify, copy, adapt, alter, translate or create derivative works of the Services; (c) frame or mirror any content forming part of the Services, other than on Customer’s own intranets or otherwise for its own internal business purposes; (d) reverse engineer, decompile or disassemble the Services (or otherwise attempt to derive the source code for the Software); (e) take any action that would cause the Services to be placed in the public domain; (f) remove, alter, or obscure any proprietary notices of Axial, its licensors or suppliers included in the Services; (g) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws through the Service; (h) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy rights; (i) send or store Malicious Code; (j) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (k) access the Services in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Services; or (l) attempt to gain unauthorized access to the Services or related systems or networks.

• Support and Maintenance Services.

1. Axial will provide maintenance and support services (collectively, "Support Services") for the Hosted Services in accordance with the provisions of this Section 4. The Support Services are included in the Services, and Axial will not assess any additional Fees for such Support Services.
2. Axial will: (a) correct all material Errors, including by providing defect repair, programming corrections and remedial programming; (b) provide unlimited telephone support, during the hours of 9 a.m. to 6 p.m. Central time on Axial’s business days; (c) provide online access to technical support bulletins and other user support information and forums, to the full extent Axial makes such resources available to its other customers; and (d) respond to and resolve support requests. Axial representatives may make themselves available at their discretion at other times but such activities shall not modify this agreement.
3. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. AXIAL HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.
1. Proprietary Rights.
1. As between the parties, Axial reserves and retains all right, title and interest in and to the Axial Materials, including the sole and exclusive ownership of all Proprietary Rights relating thereto, subject only to the license granted to Customer in Section 3.1 above.
2. As between Axial and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data.Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to Axial, its subcontractors and personnel as are necessary or useful to perform the Services; and (b) to Axial as are necessary or useful to enforce this Agreement and exercise its rights and perform its hereunder.
3. Axial will have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Software and/or Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Authorized Users relating to the operation of the Software and/or Services.
2. Consideration.
1. Customer will pay all fees specified in any Order Forms hereunder (the “Fees”). Except as otherwise provided, all fees are quoted and payable in United States dollars. Except as otherwise specified herein or in an Order Form, stated fees are based on the scope of the subscriptions purchased and not actual usage, payment obligations are non-cancelable, and Fees paid are non-refundable. In the event that Customer is purchasing a subscription based on the number of individual Authorized Users or another metric set forth in an Order Form, and Customer’s actual usage exceeds the applicable limit on such metric, overage charges will apply and Customer will remit such charges to Axial.
2. All Fees will be invoiced in advance and in accordance with the relevant Order Form. Unless otherwise stated in an Order Form, charges are due immediately as of the date of the invoice and shall be automatically charged to Customer according to Customer’s prescribed payment method. Customer is responsible for maintaining complete and accurate billing and contact information.

1. For those payments that are invoiced, any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Axial’s discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. In addition to any other remedies available to Axial, the failure of Customer to pay to Axial any fees when due will constitute sufficient cause for Axial to withhold or terminate access to the Services, and any such action will not be deemed a breach of this Agreement.
2. Customer is responsible for paying all Taxes associated with its purchases hereunder, above and beyond the Fees, excluding taxes based on Axial’s net income or property, unless Customer provides Axial with a valid tax exemption certificate authorized by the appropriate taxing authority. Unless otherwise stated, all prices set forth on an Order Form are exclusive of Taxes.

• Term and Termination.

1. Unless earlier terminated in accordance with Section 7.2, this Agreement will begin on the Effective Date and will continue in effect during the Subscription Period, after which it will automatically renew for additional periods equivalent to the initial Subscription Period (the "Term") unless either party provides written notice of non-renewal prior to expiration of the then-current Subscription Period.
2. Either Party may terminate this Agreement for any reason upon written notice to the other Party. If this Agreement is terminated by Axial, Customer will remain responsible for Fees set forth on any outstanding Order Forms, regardless of whether such Fees have been invoiced or are not yet payable at the time of such termination. Upon termination, Axial will refund Customer any unused, prepaid Fees covering the remainder of the subscription term after the date of termination.
3. All rights and licenses granted herein will simultaneously and automatically terminate as to each Order Form at the end of the applicable Subscription Period or upon any earlier termination of this Agreement or the applicable Order Form. Following such termination: (a) Axial will have no further obligation to provide Customer with access to the Services, and the licenses granted to Customer in Section 3.1 above will simultaneously and automatically terminate and be revoked; (b) all Confidential Information of the Disclosing Party (and all copies thereof) will be returned or destroyed by the Receiving Party, with confirmation of the taking of such action certified in writing by the Receiving Party. Expiration or termination of this Agreement will not relieve Customer of the obligation to pay any Fees accrued or payable to Axial prior to the effective date of expiration or termination. The provisions of Sections 5, 6.1, 7.3, 8, 9, 11 and 12 will survive expiration or termination of this Agreement.
1. Confidentiality Obligations. As between the Parties, the Confidential Information of each party will remain its sole property.
1. Confidential Information will be used by the Receiving Party only for purposes of, or as otherwise authorized by, this Agreement. During the Term and for a period of three (3) years thereafter, the Receiving Party will hold the Confidential Information of the Disclosing Party in strict confidence and protect such Confidential Information from disclosure using the same care it uses to protect its own Confidential Information of like importance, but not less than reasonable care. No Confidential Information will be disclosed by the Receiving Party without the prior written consent of the Disclosing Party, except that each party may disclose the terms of this Agreement and the other party’s Confidential Information to its directors, employees, attorneys, agents, auditors, insurers and subcontractors only on a “need to know” basis in connection with their employment or engagement and who are obligated to keep such information confidential in a manner no less restrictive than set forth in this Section 8. The party employing or engaging such persons is responsible and liable for their compliance with such confidentiality obligations. If the Receiving Party is required to disclose the Disclosing Party’s Confidential Information by law or a governmental authority, including pursuant to a subpoena or court order, such Confidential Information may be disclosed, provided that the Receiving Party (a) promptly notifies the Disclosing Party of the disclosure requirement, (b) cooperates with the Disclosing Party’s reasonable efforts to resist or narrow the disclosure and to obtain an order or other reliable assurance that confidential treatment will be accorded the Disclosing Party’s Confidential Information, and (c) furnishes only Confidential Information that the party is legally compelled to disclose according to advice of its legal counsel.
2. Both Parties acknowledge that any breach of this Section 8 would cause irreparable injury to the other for which monetary damages are not an adequate remedy. Accordingly, a party will be entitled to injunctions and other equitable remedies in the event of such a breach by the other. The right of each party to seek injunctive relief will not limit in any manner their respective rights to seek other and/or additional remedies at law or in equity.
2. DISCLAIMER OF WARRANTIES. The Services are provided “as is” and neither Axial nor its third-party licensors warrant that the Services will be error-free, will perform in an uninterrupted, secure or timely manner, or will interoperate with other hardware, software, systems or data. To the maximum extent allowed by law, all conditions, representations and warranties, whether express, implied, statutory or otherwise including, without limitation, any implied warranties of merchantability, fitness for particular purpose (even if Axial had been informed of such purpose), or non-infringement of third party rights are hereby disclaimed. No employee, agent, representative or affiliate of Axial has authority to bind Axial to any oral representations or warranty concerning the Services. Any written representation or warranty not expressly contained in this Agreement is unenforceable.
3. Network Matters. Customer acknowledges that access to the Services may be adversely affected by various conditions including, but not limited to, electrical interference, weather, acts of God or governmental authority, equipment failure, user error and the failure of any switch, router or other connecting telecommunications device, that periodic service interruptions may be necessary to perform maintenance on third party networks and facilities, and that, therefore, Axial cannot guarantee the availability of the Services at all times and under all circumstances. In addition, due to the continual development of new techniques for intruding or attacking networks, Axial does not warrant that the Services or any equipment, system or network on which the Services are used will be free of vulnerability to intrusion or attack.

• Limitation of Liability. In no event will Axial or its third-party licensors or suppliers be liable for any damages whatsoever (including without limitation, lost profits, revenue, data or data use, business interruption, cost of cover, indirect, special, punitive, incidental or consequential damages of any kind) arising out of the use of or inability to use the Services or in any way related to this Agreement, even if Axial has been advised of the possibility of such damages. IN NO EVENT WILL AXIAL'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT OR OTHERWISE, EXCEED THE TOTAL OF AMOUNTS PAID TO AXIAL PURSUANT TO THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE RELEVANT CAUSE OF ACTION AROSE.

• Governing Law; Dispute Resolution.

1. This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas.
2. All actions to determine or enforce the rights of either party to this Agreement will be resolved first by non-binding mediation using a mutually agreed upon mediator or through the Dispute Resolution Center in Austin, Texas. The cost of such mediation, if any, will be shared equally between the parties.
3. Should mediation not result in the resolution of the dispute, the parties agree to resolve any dispute via binding arbitration in Travis County, Texas before the American Arbitration Association in accordance with its Commercial Rules, using a three-member arbitration panel of attorneys who are licensed to practice law. The panel will render an award and a written opinion. Either party may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement and to enforce an arbitration award. In any action or arbitration to enforce or interpret this Agreement, the prevailing party will be entitled to recover its reasonable attorneys' fees and other costs incurred in connection therewith.
1. Publicity. Customer agrees to allow Axial to publicize the relationship between Axial and Customer by (a) including Customer ’s corporate logo on the “customers” page of Axial’s website, (b) permitting Customer’s staff to serve as a reference for the quality of and satisfaction with the Services, and (c) the use of quotes and/or brief interviews with Customer or its staff concerning the Services.

• Miscellaneous.

1. Customer will not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Axial’s prior written consent. Any purported assignment, delegation or transfer in violation of this Section 14.1 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
2. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. No changes or modifications to or waivers of any provision of this Agreement will be effective unless evidenced in writing and signed by both parties.
3. If any provision of this Agreement will be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired thereby.
4. Customer will not itself, or permit any third parties to, export, re-export or release, directly or indirectly any Controlled Technology to, or make any Controlled Technology accessible from, any country, jurisdiction or person to whom or which the export, re-export or release, directly or indirectly of any Controlled Technology is prohibited by applicable law. Customer will comply with all applicable laws relating to, and complete all required undertakings (including, without limitation, obtaining any necessary export license or other governmental approval) prior to, any exporting, re-exporting, releasing or otherwise making available any Controlled Technology.