This User Agreement is in the context of you wanting to use Axio’s proprietary technology for assessing cyber risk (the “Axio Technology”), for a limited time, and Axio wishes to grant such rights, on the terms set forth herein.
1. License Grant
In various workshops or on their own Customer will use Axio Technology. Axio hereby grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license, only during the Evaluation Period (defined in Section 3 below), to access, use and test the cyber risk products associated with the Axio Technology, including, but not limited to, Axio’s proprietary cyber risk analysis process (the “Products“). All written and electronic user’s guides, specifications and other documentation for the Products (“Documentation“), is made available for the sole purpose of evaluating and testing the Axio Products and nothing herein shall be construed as granting any right to receive any maintenance services, updates, or upgrades from Axio.
There will be no charge for Customer’s use of the Axio Technology during the Evaluation Period.
The term of this Agreement and the license rights granted hereunder will commence upon execution of this Agreement and will continue for ninety (90) days or any further period otherwise expressly agreed in writing by Axio (“Evaluation Period“), after which the license will automatically terminate and the Customer will no longer have access to the Products. The license granted to Customer will terminate automatically upon Customer’s failure to comply with any of the terms of this Agreement. Upon termination of this Agreement, Customer agrees to promptly destroy all printed copies and delete all electronic copies of any Documentation.
The responsibilities of the Customer and Axio are as follows: Customer will be responsible for providing a secure computing environment to be used in connection with the Axio Products. Axio will provide Customer with Documentation required to access and use the Axio Products.
5. Technical Support
Axio will provide the Customer with limited technical support during the Evaluation Period.
Customer acknowledges and agrees that Axio owns and retains all rights to the Axio Technology, the Products and Documentation and is not granting Customer any right in or to any copyright or other intellectual property right other than as expressly granted herein.
To the maximum extent permitted by law, the Customer may not: (i) reverse engineer, decompile, or disassemble or otherwise attempt to derive the source code for any Product; (ii) rent, lease, loan, sell, sublicense, distribute, transmit or otherwise transfer Axio Technology or Products to any third party, or permit use of any Product by any third party; (iii) make any modifications, enhancements or improvements to or otherwise create derivative works based in any manner upon any Product.
8. Customer’s Obligations
Customer will be solely responsible for the following: (i) providing all network capabilities required for use of the Axio Technology; (ii) at all times use Axio Products in accordance with the Documentation and any other instructions provided by Axio; (iii) comply fully with any and all relevant laws, rules and regulations related to the Customer’s use of Axio Products; and (iv) without limiting the foregoing, at all times complying fully with all applicable laws, rules and regulations of the United States governing the export of software.
9. Ownership of Customer Data
Axio acknowledges that Customer is the sole owner of all Customer Data. Customer shall be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which it acquires Customer Data. Customer authorizes Axio and the data center to serve as the host and repository for all data Customer or its users enter in the Axio Technology. Customer grants to Axio a non-exclusive, royalty free perpetual, fully-paid, worldwide, sub-licensable license to use, copy, modify, deploy, distribute and exploit for any lawful purpose the Customer Data, provided that Customer Data shall be deidentified.
In the course of the Evaluation Period, Axio may disclose to Customer information considered by Axio to be proprietary and/or confidential (“Confidential Information“). The Receiving Party acknowledges that the Confidential Information is a special, valuable, and unique asset of Axio. The Customer, together with any other interested individual, and/or associate, and/or partner, and/or officer or director of the Customer, agrees to retain in confidence all Confidential Information he/she/they may receive from Axio, in discussions and communications or through the performance of his/her/their duties, including the fact that discussions of any nature have taken place, or will take place. Customer agrees to use the same degree of care to protect the Confidential Information received from Axio as it would employ with respect to its own Confidential Information of like importance, which it does not desire to have published or disseminated. All Confidential Information that may be provided by Axio to the Customer, shall at all times remain the sole property of Axio, and shall be returned to Axio at Axio’s request. Notwithstanding the preceding, the Customer shall not be forbidden to make use of any information which is now available or becomes available to the public without breach of this Agreement, is released in writing by Axio, or is obtained from a third party or parties having no obligation of confidentiality with respect to such Confidential Information.
Customer will indemnify, defend, and hold Axio harmless from and against any and all third-party claims arising from, in connection with, or related in any way, directly or indirectly, to: (i) the Customer’s use of Axio Products, the Documentation, or any other materials furnished under this Agreement; or (ii) the Customer’s breach of any of the terms of this Agreement.
12. Limitation of Liability
Customer is not entitled to receive damages from Axio for any cause relating to this Agreement, to the Customer use of Axio Products, to any services provided by Axio hereunder, or to any services provided by any third party in connection with the Customer use of Axio Products. In addition, in no event will the Customer be entitled to obtain any injunctive relief or otherwise enjoin, restrain, or otherwise interfere with Axio or with the distribution, operation, development, or performance of the Products. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL AXIO BE LIABLE TO THE CUSTOMER FOR ANY DAMAGES WHATSOEVER ARISING OUT OF THE CUSTOMER’S USE OF (OR ANY INABILITY TO USE) THE PRODUCTS. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL AXIO BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF DATA, LOST PROFITS, OR LOST BUSINESS OPPORTUNITIES, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
13. Disclaimer of Warranty
THE AXIO PRODUCTS ARE PROVIDED WITHOUT CHARGE AND ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AXIO EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND ON THE PRODUCTS, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES ALLEGED TO HAVE ARISEN FROM CUSTOM, USAGE, OR A COURSE OF DEALINGS BETWEEN THE PARTIES. AXIO WILL HAVE NO LIABILITY ARISING OUT OF OR IN ANY WAY RELATED TO CUSTOMER’S USE OF THE PRODUCTS OR THE DOCUMENTATION. AXIO DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PRODUCTS WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE.
14. General Provisions
(a) Governing Law: New York law will govern this Agreement and the transactions it contemplates, without reference to rules regarding conflicts of law. (b) Severability: If any provision of this Agreement is determined by any court of competent jurisdiction to be invalid or unenforceable, such provision shall be interpreted to the maximum extent to which it is valid and enforceable, all as determined by such court in such action, and the remaining provisions of this Agreement will, nevertheless, continue in full force and effect without being impaired or invalidated in any way. (c) No Assignment: The Customer may not assign this Agreement or any of the rights granted by Axio hereunder, in whole or in part, without the prior written consent of Axio, and any attempt to do so will be void. This Agreement will be binding upon and inure to the benefit of the Parties, their respective successors and permitted assigns. (d) Acknowledgement and Exclusive Agreement: THE CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. THE CUSTOMER FURTHER AGREES THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE CUSTOMER AND AXIO, AND THAT IT SUPERCEDES ANY PROPOSAL, PRIOR AGREEMENT OR UNDERSTANDING, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN THE CUSTOMER AND AXIO RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, ALL OF WHICH ARE EXPRESSLY MERGED HEREIN. THIS AGREEMENT MAY NOT BE CHANGED, ALTERED, OR MODIFIED EXCEPT BY A WRITING SIGNED BY THE PARTIES. NO ACT, DOCUMENT, USAGE OR CUSTOM WILL BE DEEMED TO MODIFY OR AMEND THIS AGREEMENT IN ANY WAY.