General Terms of Service
a. These terms of service (“Terms”) govern the provision of services by Axion Ray Inc., a Delaware corporation (“Axion”), to the person or entity specified as “Client” in a work order that specifically incorporates these Terms (the “Work Order”).
b. The Work Order and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties on the matters contained in this Agreement and supersede all prior or contemporaneous agreements and communications, both written and oral, between the parties on those matters. To the extent of any conflict between these Terms and the Work Order, the Work Order controls.
c. This Agreement prevails over any of Client’s general terms regardless of whether or when Client has submitted those terms or any request for proposal, order, or other document that purports to incorporate those terms. Axion’s provision of services to Client does not constitute acceptance of any of Client’s terms and does not modify this Agreement.
a. Axion shall provide to Client the services listed under the heading “Services” in the Work Order (the “Services”) in accordance with these Terms.
b. Axion shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
3. Performance Dates. Axion shall use commercially reasonable efforts to meet any performance dates specified in the Work Order. Any such dates are estimates only.
4. Client’s Obligations. Client shall, and shall ensure that its employees, directors, agents, contractors, and representatives (collectively, “Representatives”),
a. cooperate and communicate with Axion in all matters relating to the Services;
b. timely provide in complete and accurate form all materials, information, data, access, licenses, and other resources that Axion reasonably requests in relation to the Services;
c. respond promptly to Axion’s reasonable requests to provide direction and decisions relating to the Services;
d. not attempt to reverse engineer, decompile, disassemble, or otherwise discover the source code, object code or underlying structure, ideas, or algorithms of any software delivered by Axion to Client;
e. not use that software for timesharing or service bureau purposes or otherwise for the benefit of a third party, or remove any proprietary notices or labels from that software;
f. comply with all applicable laws and regulations in relation to the Services;
g. and perform any other obligations of the Client stated in the Work Order.
5. Obstacles to Performance. If Axion’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its Representatives, Axion is not in breach of those obligations or otherwise liable for any losses or liabilities incurred by Client, in each case, to the extent relating to that prevention or delay.
6. Change Orders
a. If either party wishes to change the scope or performance of the Services, it shall submit the requested change to the other party.
b. Within a reasonable time after receiving any reasonable request from Client, Axion shall inform Client whether, in Axion’s sole discretion, the requested change is feasible.
c. If Axion informs Client that the requested change is feasible or if Axion submits a requested change to Client, Axion shall provide to Client an estimate of
i. the likely time required to implement the change;
ii. any variations to the fees and other charges for the Services arising from the change;
iii. the likely effect of the change on the Services; and
iv. any other impact the change might have on the performance of this Agreement.
d. Promptly after Client receives the estimate, the parties shall negotiate the terms of the change and, if they agree, shall document those terms in a signed writing that identifies itself as a Change Order amending the applicable Work Order.
e. Axion may charge for the time it spends assessing and documenting a change request from Client based on a time and materials basis.
7. Fees and Expenses
a. Client shall pay to Axion the fees and other payments stated in the Work Order (the “Fees”) on the dates stated in the Work Order.
b. Client shall reimburse Axion for all reasonable costs and expenses, including without limitation travel and out-of-pocket expenses, incurred by Axion in connection with the Services.Client shall pay all invoiced amounts due to Axion no later than 10 days after receiving Axion’s invoice.
c. Client shall pay all invoiced amounts due to Axion no later than 10 days after receiving Axion’s invoice.
d. Client’s payment obligations under this Agreement are based on the amounts stated in Axion’s invoices, not on estimated amounts in the Work Order.
e. If Axion does not receive any payment in full and on time, Axion may
i. charge interest on any such unpaid amounts at the rate stated in Section 5004 of the New York Civil Practice Law and Rules, as amended from time to time, from the date that payment was due until the date paid;
ii. suspend performance of all Services until payment has been made in full; and
iii. adjust any deadlines in the Work Order affected by that suspension of performance.
8. Taxes. Client shall pay all sales, use, and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client under this Agreement.
9. Intellectual Property
a. As between the parties, Axion owns all intellectual property rights in all materials—including without limitation all documents, data, designs, methodologies, software, and source code—that Axion delivers to Client under this Agreement, develops or acquires in connection with the Services, or uses in developing any of those materials.
b. Axion grants to Client a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, and royalty-free license to use those materials to the extent necessary to enable Client to make reasonable use of the Services.
c. As between the parties, Client owns all intellectual property rights in all its data that it provides to Axion in connection with the Services.
d. Client grants to Axion a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, and royalty-free license to use that data in aggregated and anonymized form to provide the Services and to improve Axion’s products and services.
10. Confidential Information
a. “Confidential Information” means, with respect to either party, all non-public, confidential or proprietary information of that party, including without limitation trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to clients, pricing, and marketing, in each case disclosed by that party to the other party in written form and identified as “confidential”, except information that is:
i. in the public domain through no fault of a party;
ii. known to the other party at the time of disclosure; or
iii. rightfully obtained by the other party on a non-confidential basis from a third party.
b. During this Agreement’s term and for one year after its termination or expiration, each party shall
i. keep the other party’s Confidential Information confidential;
ii. not disclose or reproduce the other party's Confidential Information without the other party’s prior consent; and
iii. not use the other party's Confidential Information for any purpose except in connection with the Services.
a. If Client completely and accurately notifies Axion no later than 30 days after Client discovers or should have discovered a defect in the Services, Axion shall, in its sole discretion, either
i. repair or re-perform those Services (or the defective part); or
ii. credit or refund the price of those Services at a pro rata contract rate that Axion reasonably calculated.
b. THE REMEDIES SET FORTH IN SECTION 11.a ARE CLIENT’S EXCLUSIVE REMEDY AND AXION’S ENTIRE LIABILITY RELATING TO ANY DEFECT IN THE SERVICES.
12. Disclaimer of Warranties.
AXION MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY, (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (C) WARRANTY OF TITLE, OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
13. Limitation of Liability
a. IN NO EVENT IS AXION LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT; LOSS OR CORRUPTION OF DATA; DIMINUTION IN VALUE; OR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH LOSSES OR DAMAGES WERE FORESEEABLE AND WHETHER OR NOT AXION HAS BEEN ADVISED OF THEIR POSSIBILITY, AND NOTWITHSTANDING THE SUFFICIENCY OF ANY REMEDY.
b. IN NO EVENT DOES AXION’S AGGREGATE LIABILITY RELATING TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID OR PAYABLE TO AXION PURSUANT TO THE APPLICABLE WORK ORDER.
c. THE LIMITATION OF LIABILITY IN SECTION 13.b ABOVE DOES NOT APPLY TO LOSS OR LIABILITY RESULTING FROM AXION’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
a. Either party may terminate this Agreement upon notice to the other party if the other party breaches any provision of this Agreement.
b. Upon this Agreement’s termination pursuant to Section 14.a,
i. Axion is no longer obligated to perform the Services;
ii. Client shall immediately pay to Axion all amounts due under this Agreement and under any invoice that Axion submits to Client for Services it performed before receiving notice of termination; and
iii. the following provisions survive: Intellectual Property, Confidentiality, Limitation of Liability, Termination, and General Provisions.
c. Despite Section 14.b.iii,
i. if Axion terminates this Agreement due to Client’s breach, then the license granted under Section 9.b immediately ceases; and
ii. if Client terminates this Agreement due to Axion’s breach, then the license granted under Section 9.d immediately ceases.
a. Waiver. No waiver by either party of any provision of this Agreement is effective unless explicitly stated in a signed writing. No failure or delay in in exercising any right under this Agreement operates as a waiver. No single or partial exercise of any such right precludes any other exercise of that or any other right.
b. Force Majeure. Neither party is liable to the other party, or in default of this Agreement, for any failure or delay in performing this Agreement to the extent that such failure or delay is results from acts or circumstances beyond the reasonable control of the impacted party, including without limitation acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers, inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown, or power outage.
c. Relationship of the Parties. The parties are independent contractors. Nothing contained in this Agreement creates any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party may contract for or bind the other party in any manner.
d. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties and their respective successors and permitted assigns. It is not intended to confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature under this Agreement.
e. Assignment. Neither party may assign any right or delegate any performance under this Agreement without the other party’s prior consent, except as otherwise stated in the Work Order. A purported assignment or delegation in violation of this paragraph is void.
i. Each party giving or making any notice or other communication in accordance with this Agreement (each, a “Notice”) shall give the Notice in writing
A. by personal delivery, nationally recognized overnight courier (with all fees prepaid), or certified or registered mail (in each case, return receipt requested, postage prepaid) addressed to the receiving party at the address stated in the Work Order (or to another address that the receiving party designates in accordance with this paragraph); or
B. by email to an email address specified by an authorized representative of the receiving party.
ii. Except as otherwise provided in this Agreement, a Notice is effective only if (A) the receiving party has received the Notice and (B) the party giving the Notice has complied with the requirements of this paragraph.
g. Governing Law. The laws of New York govern all matters relating to this Agreement.
h. Submission to Jurisdiction. Each party shall institute any legal proceeding relating to this Agreement only in the federal and state courts located in the City of New York, and each party irrevocably submits to the exclusive jurisdiction of those courts in any such proceeding.
i. Amendment. The parties may amend this Agreement only by the parties’ written agreement that identifies itself as an amendment to this Agreement.
j. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, the remaining provisions of this Agreement remain in full force, if the essential provisions of this Agreement for each party remain legal and enforceable.
k. Counterparts. The parties may execute each Work Order in one or more counterparts, each of which is an original, and all of which constitute, together with these Terms, only one agreement between the parties.