XTS Software Inc. d/b/a “Axium”
1. USE OF AXIUM’S SERVICES
If you are the person or legal entity ordering Axium’s Online Services for the management of projects, you will be referred to as an “Account Holder.” If you are the employee, independent contractor, or owner representative of an Account Holder (referred to as an “End User”), your employer or principal will issue you a user identification (User ID) and password for you to use Axium’s Services. When you click the “I ACCEPT” button, you are agreeing to all of the terms and conditions set forth below in this Agreement concerning the terms and conditions of use of the Services as an End User. If you are planning to use the Services as an employee or independent contractor of another person or entity who has ordered the Services, and you do not agree with any part of the Agreement that pertains to End Users, or if you do not have a valid User ID or password, or if you have no authority to use the Services, you must click the “I DECLINE” button set forth below.
2. USE OF AXIUM’S SERVICES AND ITS WEBSITE
Your use of Axium’s Services and its website is governed by and subject to each and every term of this Agreement. The terms “you” and “your” as used in this Agreement pertain to each Account Holder and/or End User of the Services. You agree that each person listed in your account information is your agent and has full authority to act on your behalf as to the Services, which will include any of your employees or independent contractors. The terms of this Agreement will cover any situation where you use and access the Services or you permit a person to use and access the Services, even if that person is not listed on an Account Holder’s account information. The Services may only be used for an Account Holder’s internal business purposes.
3. ACCOUNT REGISTRATION (Account Holders)
As an Account Holder, you agree that all information that you provide Axium in connection with your access to and use of Axium’s Services and website is true, accurate, and complete to the best of your knowledge, belief, and ability. You also agree that you will maintain and routinely update such information to keep it true, accurate, and complete at all times. To access or use the Services, you will be required to obtain a User ID (which will be your e-mail address) and a password (which will be automatically generated by Axium’s system, but which can be changed by you at a later date). After you register for Axium’s Services, you will have access to Axium’s system within twenty-four (24) hours. You hereby authorize Axium to process any and all account transactions initiated through the use of your User ID or password. Axium, in its sole discretion, reserves the right to refuse access to the Services or any part of the Services or to delete your User ID or password. You agree that Axium shall not be liable to you for loss or damages that may result from its refusal to grant access to the Services or a part of the Services. Axium specifically reserves the right, at its sole discretion, to deny any Account Holder or End User access to Axium’s Services and website for any of the following non-exclusive reasons: i) sharing your User ID or password with anyone without Axium’s prior written consent; ii) violating any term of provision of the Agreement; iii) non-payment of any amounts owed to Axium for the Services and/or access to Axium’s website; and iv) utilizing Axium’s Services for any other purpose of than project document management and the day-to-day business activities associated therewith. If you are denied access to Axium’s Services and/or website for any reason, you agree that you will forfeit all service charges that have already been paid to Axium, including any pre-paid amounts. Within thirty (30) business days of access termination, Axium will download all of the information that you have stored on Axium’s servers and return it to you at the business address listed in your account.
4. FEES, PAYMENT, AND TERM OF SERVICE (Account Holders)
As consideration for the Services purchased by you as an Account Holder, you agree to pay Axium the applicable Service fees set forth on Axium’s Service and Price List upon receipt of your invoice from Axium. Axium reserves the right to modify its fees and charges and to introduce new charges at any time. You agree and acknowledge that there will be no refunds for any amounts billed to you for Axium’s Services. If you believe that a charge to your account is incorrect or was not authorized, you must contact Axium in writing within sixty (60) days of the date of the transaction to be eligible to receive an adjustment or credit.
In addition to any other rights granted to Axium in this Agreement, Axium reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent. Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection, including attorneys’ fees. You will continue to be charged during any period of suspension. If you or Axium initiates termination of this Agreement, you will be obligated to pay the balance due on your account. You agree that Axium may bill you for such unpaid fees. You agree and acknowledge that Axium has no obligation to retain any of your information that is stored on Axium’s servers and that such information may be irretrievably deleted if your account is forty five (45) days or more delinquent.
5. DATA STORAGE AND OWNERSHIP (Account Holders)
As an Account Holder, you acknowledge that Axium may establish from time to time general practices and limits concerning use of the Services, including without limitation, establishing the maximum amount of storage space you have on the Service at any time, as well as limiting the number of times (and the maximum duration for which) you may access the Service in a given period of time. You agree that Axium has no responsibility or liability for the deletion or failure to store any information maintained or transmitted by the Services. Further, you agree that Axium is not liable for any interruption of the Services for any reason, including but not limited to an interruption because of repairs to the Site. Axium is also not liable for any damages whatsoever caused by your inability to gain access to your stored information. As a condition of use for these Services, you agree that, in the event of an error with the Services, a Service technician will be permitted to access the Customer Data as necessary to resolve the problem. You acknowledge that Axium reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice. You agree to pay Axium for the storage of the information that you upload to Axium system as specified in its Service and Price List. The amount of the storage fees and charges will be set by Axium at its sole discretion. Axium reserves the right to modify its fees and charges at any time. Axium does not own any of the information that you store on the system. You, not Axium, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all stored information, and Axium shall not be responsible or liable for the deletion, correction, destruction, damage, loss, or storage failure of any of your stored information. In the event this Agreement is terminated (other than by reason of your breach), Axium will make available to you a file of the stored information for thirty (30) days after termination if you request such access at the time of termination. Axium also reserves the right to immediately terminate the Services and may provide you with a copy of your stored information.
6. PROHIBITED CONDUCT
You agree that you will not use the Services to: (a) upload or otherwise transmit any information, domain name, or any other information or data that is unlawful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable; (b) harm minors in any way; (c) impersonate any person or entity, including, but not limited to, any Axium representative, or misrepresent Axium affiliation with any person or entity; (d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any stored information transmitted through the Services; (e) upload or otherwise transmit any stored information that you do not have a right to transmit under any law or under contractual relationships (such as inside information, proprietary, and confidential information learned or disclosed as part of employment relationships, or under nondisclosure agreements); (f) upload or otherwise transmit any stored information or domain name that infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any person; (g) upload or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, 'junk mail', 'spam', 'chain letters', 'pyramid schemes', or any other form of solicitation, except in those areas of the Services that may be designated for such purpose; (h) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (i) interfere with or disrupt the Services or servers or networks connected to the Services; (j) violate any applicable law or regulation, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission and any rules of any securities exchange, and laws regarding the export of technical data; (k) incite or provide instructional information about illegal activities; or (l) conduct raffles, contests, lotteries, or sweepstakes.
Axium takes commercially reasonable measures to secure and protect information transmitted to and from Axium’s Services. However, Axium cannot and does not guarantee that any such communications or any electronic commerce conducted on or through the Services and/or website is or will be totally secure. You are responsible for maintaining the confidentiality of any login User ID and any password that may be assigned to you by Axium, and you are fully responsible for all access and any activity that occurs through use of your User ID or password. You agree to immediately notify Axium of any unauthorized use of your User ID or password or any other breach of Site security of which you become aware. You also agree to take such further steps as may be reasonably requested by Axium to prevent unauthorized use of your User ID and password. Axium cannot and will not be liable for any loss or damage arising from any unauthorized access or use of your User ID or password.
8. GRANT OF LICENSE
Based on the foregoing conditions, Axium hereby licenses to you on a non-exclusive and non-transferable basis the right to use Axium Services, website, and software to manage projects. Axium retains all rights, title, and interest to the Services, website, and Software, as well as all rights in the related documentation, if any. Axium retains all intellectual property rights in and to its software, including, but not limited to, rights under federal copyright laws, federal patent laws, or any applicable state laws. You may not delete or in any manner alter any copyright, trademark, and other proprietary rights notices or markings appearing on any information that you receive from Axium or which appears on Axium’s Services or website. Pursuant to this License and this Agreement, you are allowed to access Axium’s Services on a single computer, device, workstation, or terminal. You are only allowed to access Axium’s Services from one location at a time.
Axium’s website and Software contains copyrighted material, trade secrets, and other proprietary material. In order to protect them, and except as permitted by applicable legislation, you may not: (i) Decompile, reverse engineer, disassemble, modify, translate, otherwise reduce the Software to a human-perceivable form, or make any attempt to discover the source code. (ii) Modify, network, rent, lend, loan, distribute, or create derivative works based upon the Software in whole or in part. (iii) Electronically transmit the Software from one computer to another or over a network. (iv) Sublicense, rent, or lease any portion of the Software to another user.
This Agreement and the Account Holder and End User’s access to Axium’s Services and website will terminate immediately without notice from Axium if the Account Holder or End User fails to comply with any provision of this Agreement. Axium reserves the right to terminate this Agreement and to refuse, restrict, or discontinue service or access to the website and the Services in the event that any information provided by an Account Holder in the account registration process is, at any time, untrue, inaccurate, or incomplete or if an Account Holder otherwise fails to comply with the terms of this Agreement or any licenses, purchase orders, or other agreements that the Account Holder has with Axium to use the Services.
11. DISCLOSURE OF INFORMATION
Interfaces enable Axium to send information, including, but not limited to, a consumer’s personal information, directly to Service Providers. Axium is not responsible for any information sent by you to such Service Providers and is not responsible for information requested by such Service Providers. Axium assumes no responsibility as to whether information requested by a Service Provider is appropriate. It is your sole responsibility to contact a Service Provider regarding what particular type of information is being shared or exchanged, the Service Provider’s use and sharing practices of such information, and whether the Service Provider has updated or revised its policies regarding the Service Provider’s use and sharing practices. Axium assumes no responsibility for the disclosure, dissemination, collection, use, sale, or sharing of information about a consumer and/or you. It is your sole responsibility to ensure that you and your employees and agents comply with any applicable laws, including, but not limited to, all applicable privacy laws that are currently in effect or may be enacted in the future, and to make sure that the Service Providers comply with any applicable laws, including, but not limited to, all applicable privacy laws that are currently in effect or may be enacted in the future.
12. RIGHT TO MONITOR
Axium has the right to remotely monitor all log-in files, user session information, and the use of Interfaces included in the Software. During this process, Axium will not collect or store any loan data or personal information belonging to your customers or clients. You agree not to disable or otherwise interfere with the necessary network transmission to allow Axium to monitor your log-in information or user session information.
You agree that the Software contains proprietary information, including, but not limited to, trade secrets, know-how, and other confidential information that is Axium’s exclusive property. During the effective period of this Agreement and all times afterward, you and your members, employees (current and future), and independent contractors, agree that you will not disclose any trade secrets, know-how, confidential information to third parties without Axium’s prior written authorization. You further agree to take the necessary precautions to safeguard and maintain the confidentiality of Axium’s trade secrets, know-how, and confidential information You agree that any breach of this Section will irreparably harm Axium and that Axium is entitled to seek injunctive relief in addition to any other remedies that Axium may have at law or in equity.
A. Information collected to register Account Holders and End Users
Non-public personal information that Axium collects and reviews to register Account Holders and End Users may be disclosed, as provided by state and/or federal laws, to companies that perform Services on our behalf so that we may provide customers competitive products and services. We may also disclose non-public personal information about you under circumstances as permitted or required by state and/or federal law or where we have a good faith belief that such action is necessary to comply with a judicial proceeding, a court order, or legal request by a governmental agency. We restrict access to non-public information about you to those employees who need to know that information to provide the Services to you. We maintain physical, electronic and procedural safeguards that comply with federal regulations to guard your non-public personal information. No method of transmission of information over the Internet or electronic storage, however, is completely secure. Therefore, while we strive to use commercially acceptable means to protect your personal information, we cannot guarantee its absolute security.
B. Third-Party Intermediaries
We do not share personal information with third parties except as needed to fulfill a request for access to AXIUM’S Services, such as with a credit card authorization company. Axium does not maintain any of your credit card information. Any third-party credit authorization companies or credit card billing companies do maintain personal information for any secondary purposes.
C. Information submitted by you through the Services
In using the Services, we understand that you will be sending Customer Data, including, but not limited to, non-public and personal documents and other information regarding your customers through the Services provided under this Agreement. While monitoring or repairing the website or the Services, employees of AXIUM may gain access to Customer Data in order to maintain the website and the Services. We restrict access to such information to those employees or agents of Axium who need access to maintain the website or the Services. We also follow generally accepted industry standards to protect Customer Data, both during transmission and once received. No method of transmission over the Internet or electronic storage, however, is completely secure. Therefore, while we strive to use commercially acceptable means to protect Customer Data, we cannot guarantee its absolute security. Under no circumstances shall Axium be liable for any loss, damage, or other consequences relating to or arising from the use or storage of Customer Data on the Site.
D. Receipt of Marketing Materials
Every Account Holder and End User that signs up for Axium’s Services agrees to receive any marketing material and information that Axium produces regarding new features for the Services and website. Every Account Holder and End User also agrees to receive service announcements of any type regarding Axium’s Services and website.
E. Responsibility for Security Your Customer Data
You shall have sole responsibility for securing all necessary permissions and clearances with respect to the Customer Data and for ensuring that your use of the website and the Services to access, manage, and manipulate the Customer Data complies with any and all laws any and all laws, rules, and regulations applicable thereto, including, but not limited to, those concerning any privacy rights of your clients. You shall comply with all applicable laws, regulations, privacy guidelines, and applicable agreements governing the collection and use of personally identifiable information, including without limitation the Gramm-Leach-Bliley Act (collectively, the “Privacy Rules”). You shall have sole responsibility to comply with any and all laws, rules and regulations applicable to the format, location and duration of the retention of the Customer Data. You shall, at your expense, defend, indemnify, and hold harmless Axium, its officers, directors, and employees from and against any and all liabilities, claims, causes of action, suits, and damages, including reasonable attorneys’ fees and expenses arising out of or related to your non-compliance with any of the Privacy Rules.
15. GOVERNMENT END USERS
If you are acquiring the Software on behalf of any unit or agency of the United States Government, the following provisions apply. The Government agrees: (i) if the Software is supplied to the Department of Defense (DoD), the Software is classified as “Commercial Computer Software” and the Government is acquiring only “restricted rights” in the Software and its documentation as that term is defined in Clause 252.227-7013(c)(1) of the DFARS; and (ii) if the Software is supplied to any unit or agency of the United States Government other than DoD, the Government’s rights in Software and its documentation will be as defined in Clause 52.227-19(c)(2) of the FAR or, in the case of NASA, in Clause 18052.227-86(d) of the NASA Supplement to the FAR.
16. DISCLAIMER OF WARRANTY ON SERVICES AND SOFTWARE
You expressly acknowledge and agree that use of the Services and software is at your sole risk. The Services and software and related documentation are provided “AS IS” and without warranty of any kind and, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, AXIUM EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. AXIUM DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES, WEBSITE, OR SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICES, WEBSITE, OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICES, WEBSITE, OR SOFTWARE WILL BE CORRECTED. AXIUM DOES NOT WARRANT THAT THE SERVER THAT MAKES THE SERVICES OR WEBSITE AVAILABLE IS FREE OF VIRUSES OR OTHER COMPONENTS THAT MAY INFECT, HARM, OR CAUSE DAMAGE TO YOUR COMPUTER EQUIPMENT OR ANY OTHER PROPERTY WHEN YOU ACCESS, BROWSE, DOWNLOAD FROM, OR OTHERWISE USE THE SERVICES OR WEBSITE. YOU SPECIFICALLY ACKNOWLEDGE THAT THE SERVICES OR WEBSITE MAY BECOME DELAYED OR RENDERED USELESS FOR A PERIOD OF TIME DUE TO THE INHERENT PROBLEMS WITH USING THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND YOU SPECIFICALLY ACKNOWLEDGE THAT AXIUM IS NOT RESPONSIBLE FOR ANY DAMAGE OF ANY TYPE WHATSOEVER FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER PROBLEMS ASSOCIATED THEREWITH. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY YOU. FURTHERMORE, AXIUM DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES, WEBSITE, OR SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AXIUM OR AXIUM’S AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU (AND NOT AXIUM OR AXIUM’S AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION.
17. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL AXIUM OR ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, PERSONAL INJURY, OR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF THE USE, MISUSE, OR INABILITY TO USE THE SERVICES, WEBSITE, OR SOFTWARE OR RELATED DOCUMENTATION, EVEN IF AXIUM OR AXIUM’S AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall Axium’s total liability to you for all damages, losses, and causes of action (whether in contract, tort (including negligence) or otherwise) exceed the amount paid by you for the Services or software.
You agree that you will, at your expense, defend, indemnify, and hold harmless Axium and its affiliates, officers, directors, employees, agents, and attorneys from and against any and all claims, demands, liabilities, costs, expenses (including attorney’s fees), losses, damages, judgments, or settlements arising or resulting from i.) any claims, demands, actions, and other proceedings by any party, including any third party, arising out of or relating to this Agreement; ii.) your use of the Software and the Interfaces; iii.) your use of any Service Providers services or products; iv.) your collection, distribution, dissemination, sharing, use, or sale of information provided to Service Providers; v.) your violation of any local, state, federal, or international laws or breaches of this Agreement; and vi.) any act or omission by you or your agents, employees, or independent contractors for any services agreed to be performed by any third party or Service Provider.
(i) This Agreement shall be deemed to be a contract that is made under the laws of the State of Oregon, U.S.A., and for all purposes shall be interpreted in its entirety in accordance with the laws of said State. No litigation or other claim that is connected in any manner herewith shall be instituted or conducted in any court other than a competent court in the State of Oregon. By accepting this Agreement, you hereby consent to personal jurisdiction and venue in a competent court in the State of Oregon. By accepting this Agreement, you also irrevocably waive and renounce any right that you may have had to institute litigation or a claim of any type whatsoever in any jurisdiction other than in the State of Oregon. If any action shall be brought on account of any breach of or to enforce or interpret this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees. (ii) If any provision of this Agreement shall be held to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the validity and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. (iii) This Agreement, including all exhibits and documents directly referenced, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. (iv) Axium reserves the right to modify and update this Agreement without prior notification. If you refuse to access any modifications or updates to this Agreement, Axium reserves the right to immediately terminate this Agreement and your access to Axium’s Services and website. (v) Axium has the right to modify and/or update the Services without prior notice. (vi) The terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, in whole or in part, that term or provision will not affect the remainder of this Agreement; this Agreement will be deemed amended to the extent necessary to make this Agreement enforceable, valid and to the maximum extent possible consistent with applicable law, consistent with the original intentions of the parties; and the remaining terms and provisions will remain in full force and effect. Your rights under this Agreement are not assignable or transferable. (vii) The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Both parties shall attempt to resolve any controversy, claim, or dispute arising out of or in connection with this Agreement through consultation and negotiation in good faith and a spirit of mutual cooperation. However, if those attempts fail, the parties agree such claims or disputes shall be decided exclusively by arbitration which shall be conducted, upon request by either party. The arbitration will be before a single arbitrator, mutually agreed upon by the parties hereto, in accordance with the terms of the Commercial Arbitration Rules of the AAA, and, to the maximum extent applicable, the United States Arbitration Act. Each party will bear its own expense with respect to any arbitration. The parties further agree that any such arbitration shall be conducted exclusively in State of Oregon. The parties hereto consent to venue and jurisdiction in State of Oregon and expressly waive any right that they have to object to venue or jurisdiction in State of Oregon.
You hereby agree that, in order to utilize the Software, you must accept this Agreement. You hereby agree that you have read this Agreement in its entirety and unconditionally accept its terms.