This End User License Agreement ( “Agreement “) is a bindingagreement between you ( “Licensee “ or “you “) and AxialPay ( “Company“).This Agreement governs your use of AxialPay’s website and applications (eachsuch downloaded and installed application is referred to herein as the “Application “). ThApplication is licensed, not sold, to you.
BY CLICKING “AGREE AND INSTALL “ YOU (A) ACKNOWLEDGE THAT YOUHAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU AREOF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THISAGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOUDO NOT AGREE TO THESE TERMS, DO NOT USE THE APPLICATION AND DELETE ITFROM YOUR DEVICES.
1. License Grant. Subject to the terms of this Agreement and your subscription inaccordance with Section 2 of this Agreement, Company grants you a limited, nonexclusive andnontransferable license to download, install and use the Application on devicesowned or otherwise controlled by you ( “Your Devices”) strictly in accordance with theApplication’s documentation.
2. Subscription Services(a) Monthly Subscription: If you subscribe to the Application on a monthlysubscription basis, you must pay the monthly fee in advance to access and use the Application.Fees are described in the applicable Service listing on the third party service from which youaccessed the Application, or on Company’s website. The first monthly fee will start to accrue asof the first day immediately following any trial period (if applicable). The fees do not includeany taxes or duties of any kind, which may be imposed by any governmental entity on thetransactions contemplated by this Agreement, and you will be solely responsible for all suchtaxes. All amounts are quoted in and payable in US dollars. Company reserves the right tosuspend your access to and use of the Application if you fail to pay any undisputed amount owedon or before its due date. You may cancel your subscription at any time by providing writtennotice to Company; upon cancellation, you (i) will not receive a refund for the billing periodduring which you cancel your subscription; and (ii) will be able to access your subscription andreceive updates of the relevant subscription until the subscription termination date.
(b) Refunds: Company may provide at its discretion a refund of the full subscription price if: (i) theApplication does not function properly; or (ii) you request a refund from Company within 30days of the charge.
3. License Restrictions. Licensee shall not:
(a) copy the Application, except as expressly permitted by this license;
(b) modify, translate, adapt or otherwise create derivative works or improvements,whether or not patentable, of the Application;
(c) reverse engineer, disassemble, decompile, decode or otherwise attempt to deriveor gain access to the source code of the Application or any part thereof;
(d) remove, delete, alter or obscure any trademarks or any copyright, trademark,patent or other intellectual property or proprietary rights notices from the Application, includingany copy thereof; or,
(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwisemake available the Application or any features or functionality of the Application, to any thirdparty for any reason, including by making the Application available on a network where it iscapable of being accessed by more than one device at any time.
4. Rights Reserved. You acknowledge and agree that the Application is provided underlicense on a subscription basis, and not sold, to you. You do not acquire any ownership interest inthe Application under this Agreement, or any other rights thereto other than to use theApplication in accordance with the license granted, and subject to all terms, conditions andrestrictions, under this Agreement. Company reserves and shall retain its entire right, title andinterest in and to the Application, including all copyrights, trademarks and other intellectualproperty rights therein or relating thereto, except as expressly granted to you in this Agreement.
5. Collection and Use of Information.
(b) If you provide us with information relating to personal contact information (the“Data”) of third parties (e.g. email, mail, telephone, fax), such information shall be provided byyou free of any charge or fee. You warrant that: (i) you make no claim of copyright or otherintellectual property rights in the Data; (ii) you have all necessary rights to provide the Data to usand warrant that the Data was not collected, generated, compiled, obtained and/or being suppliedto us in any manner that would subject us to legal or regulatory liability for the use ascontemplated herein; (iii) none of the individuals included in the Data have “opted out” ofreceiving future messages from you; (iv) your providing the Data to us does not infringe anyrights of any third party; (v) there are no material suits, claims, charges or proceedings currentlypending or threatened against you relating to the Data; and (vi) the individuals whose contactinformation is included in the Data reside in the United States.
6. Geographic Restrictions. The Content and Services are based in the state of Texas inthe United States and provided for access and use only by persons located in the United States.You acknowledge that you may not be able to access all or some of the Content and Servicesoutside of the United States and that access thereto may not be legal by certain persons or incertain countries. If you access the Content and Services from outside the United States, you areresponsible for compliance with local laws.
7. Updates. Company may from time to time in its sole discretion develop and provideApplication updates, which may include upgrades, bug fixes, patches and other error correctionsand/or new features (collectively, including related documentation, “Updates “). Updates mayalso modify or delete in their entirety certain features and functionality. You agree that Companyhas no obligation to provide any Updates or to continue to provide or enable any particularfeatures or functionality. Based on your Web settings, when your Devices are connected to theinternet either:
(a) the Application will automatically download and install all available Updates; or
(b) you may receive notice of or be prompted to download and install availableUpdates. You shall promptly download and install all Updates and acknowledge and agree thatthe Application or portions thereof may not properly operate should you fail to do so. You furtheragree that all Updates will be deemed part of the Application and be subject to all terms andconditions of this Agreement.
8. Third Party Materials. The Application may display, include or make available third-partycontent (including data, information, applications and other products services and/or materials)or provide links to third-party websites or services, including through third-party advertising( “Third Party Materials “). You acknowledge and agree that Company is not responsible forThird Party Materials, including their accuracy, completeness, timeliness, validity, copyrightcompliance, legality, decency, quality or any other aspect thereof. Company does not assume andwill not have any liability or responsibility to you or any other person or entity for any ThirdParty Materials. Third Party Materials and links thereto are provided solely as a convenience toyou and you access and use them at entirely at your own risk and subject to such third parties’terms and conditions.
9. Term and Termination.
(a) The term of Agreement commences when you acknowledge your acceptance andwill continue in effect until terminated by you or Company as set forth in this Section 9.
(b) You may terminate this Agreement by deleting the Application and all copiesthereof from your Devices.
(c) Company may terminate this Agreement at any time with reasonable advancenotice if Company ceases to support the Application, which Company may do in its solediscretion. Other reasons for app removal include: (i) an allegation or actual infringement of anyintellectual property right or right of publicity or privacy of any third party; (ii) an allegation ofactual defamation; (iii) an allegation or determination that an app does not comply withapplicable law; (iv) Company ceasing to do business; or (v) Company filing a petition inbankruptcy, dissolving, or otherwise finding itself unable to pay its debts as they come due.
(d) This Agreement will terminate immediately and automatically without any noticeif you violate any of the terms and conditions of this Agreement.
(e) An Application may be unpublished at any time.
(f) Upon termination:
(i) all rights granted to you under this Agreement will also terminate; and
(ii) you must cease all use of the Application and delete all copies of theApplication from your Devices and account.
(g) Termination will not limit any of Company’s rights or remedies at law or inequity.
10. Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO LICENSEE “AS IS“ AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TOTHE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITSOWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIRRESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALLWARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITHRESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OFDEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUTLIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY ORUNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THEAPPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDEDRESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE,APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION,MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE ORTHAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ONIMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORYRIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS ANDLIMITATIONS MAY NOT APPLY TO YOU.
11. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLELAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIRRESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISINGFROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION ORTHE CONTENT AND SERVICES FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OFSUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESSINTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHERCONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVEDAMAGES
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEEDTHE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUTOF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE ANDREGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANYWAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DONOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THEABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
12. Indemnification. You agree to indemnify, defend and hold harmless Company and itsofficers, directors, employees, agents, affiliates, successors and assigns from and against any andall losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest,awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arisingfrom or relating to your use or misuse of the Application or your breach of this Agreement.Furthermore, you agree that Company assumes no responsibility for the contentyou submit or make available through this Application.
13. Export Regulation. The Application may be subject to US export control laws, includingthe US Export Administration Act and its associated regulations. You shall not, directly orindirectly, export, re-export or release the Application to, or make the Application accessiblefrom, any jurisdiction or country to which export, re-export or release is prohibited by law, ruleor regulation. You shall comply with all applicable federal laws, regulations and rules, andcomplete all required undertakings (including obtaining any necessary export license or othergovernmental approval), prior to exporting, re-exporting, releasing or otherwise making theApplication available outside the US.
14. Severability. If any provision of this Agreement is illegal or unenforceable underapplicable law, the remainder of the provision will be amended to achieve as closely as possiblethe effect of the original term and all other provisions of this Agreement will continue in fullforce and effect.
15. Governing Law. This Agreement is governed by and construed in accordance with theinternal laws of the State of Texas without giving effect to any choice or conflict oflaw provision or rule. Any legal suit, action or proceeding arising out of or related to thisAgreement or the Application shall be instituted exclusively in the federal courts of the UnitedStates or the courts of the State of Texas in each case located in Harris Countyor Houston, Texas. You waive any and all objections to the exercise of jurisdiction over youby such courts and to venue in such courts.
17. Waiver. No failure to exercise, and no delay in exercising, on the part of eitherparty, any right or any power hereunder shall operate as a waiver thereof, nor shall any single orpartial exercise of any right or power hereunder preclude further exercise of that or any otherright hereunder. In the event of a conflict between this Agreement and any applicable purchase orother terms, the terms of this Agreement shall govern.
Last updated: July 14, 2019