Terms and Conditions

Eff. 12/07/2016

These TERMS AND CONDITIONS (“Terms and Conditions”) govern the services and deliverables provided by Axiometrics LLC, a Texas limited liability company with its principal place of business located at 14901 Quorum Drive, Suite 900, Dallas, Texas 75254 (“Axiometrics”), and the client (the “Client), set forth in the Subscription Schedule and/or Transaction Schedule (collectively, the “Schedules”), in which these Term and Conditions are referenced.  Capitalized terms used herein, but not otherwise defined herein, shall have the meanings given to such terms herein and in the Schedules. These Terms and Conditions, along with the Invoice, Schedules, and any attached Exhibits constitute the Master Services Agreement between Axiometrics and Client (the “Agreement”).

  1. Engagement. Subject to these Terms and Conditions, Axiometrics hereby grants a non-assignable, non-transferrable, non-exclusive, right and license to Client, to view and use those reports, analysis, data, information, etc. that Axiometrics periodically provides or makes available to its Clients, and as are further described and defined on the Schedules (collectively, the “Deliverables”), and the Client licenses from Axiometrics, the Deliverables, on such terms. The Deliverables are categorized on the Schedules as being a) “Market Data Subscription”, indicating the Deliverables are periodically updated and available throughout the term if paid or b) “Axiometrics Transactional Reports”, indicating they are one-time, transactional Deliverables.   Axiometrics further agrees to provide such additional services as are expressly set forth in the Schedules.   The Deliverables will be of a nature, quality and quantity as described on the referenced Schedules and shall be delivered to Client in a tangible format or online through a secure website designated by Axiometrics (the “Site”), or both, as set forth in the Schedules.  
  2. Fees and Agreement Term. In consideration of the Deliverables licensed by Axiometrics, Client agrees to pay to Axiometrics those fees, plus applicable taxes, as are set forth on the Schedules (the “Fee”). Fees to accept payment made by credit cards, third party processors or vendors will be added to the Fees payable hereunder.
    1. The Market Data Subscription will be made available on the Site or delivered by Axiometrics to the Client, as applicable, beginning upon receipt by Axiometrics of the Fee for the initial Market Data Subscription, or the initial installment of the Fee for the Market Data Subscription, as set forth in the Subscription Schedule (such date of receipt shall be the “Subscription Date”). Any successive Fee for the Market Data Subscription following the initial subscription period are due and payable, in advance, on or prior to each anniversary date of the Subscription Date, whether or not Client receives a renewal notice from Axiometrics. Axiometrics reserves the right to increase the Fee for the Market Data Subscription following the end of each subscription period.  Failure to pay the Fee for the Market Data Subscription when due shall cause Axiometrics services to be suspended or terminated, in Axiometrics sole discretion, with or without notice.  Any subsequent payment of the Fee for the Market Data Subscription and revival of services by Axiometrics shall be subject to these Terms and Conditions.
    2. Axiometrics Transactional Report Deliverables, as set forth in the Transaction Schedule, will be delivered by Axiometrics to the Client, as applicable, upon receipt by Axiometrics of the payment of the Fee as set forth in the Transaction Schedule. Custom Deliverables, such as Feasibility Studies, require a Down Payment of 50% (fifty percent) of the total Fee due in advance. Final scheduling of the work to produce any custom Deliverables will occur upon receipt of the Down Payment.  Reports available to Client under the Client’s Market Data Subscription do not constitute Transactional Report Deliverables.
    3. The term of this Agreement shall commence upon the date of first signature of the first Subscription Schedule or Transaction Schedule (the “Effective Date”). The term of the Agreement will expire the later of one year from the Effective Date or the end of any subscription period described in a Subscription Schedule. For Deliverables to be provided under a Subscription Schedule, the use and term relating to such Subscription Schedule will expire as described in section 3 below.
  3. Term - Market Data Subscription. Axiometrics will provide the Market Data Subscription and other similar services under these Terms and Conditions beginning on the Subscription Date and continuing for the period defined on the Invoice thereafter (the “Initial Term”). The Initial Term will automatically renew for successive twelve-month renewal periods, or other periods as defined on the invoice, thereafter (the “Renewal Term”), following the expiration of the Initial Term or subsequent Renewal Terms (the Initial Term together with each successive Renewal Term, the “Term”).  Axiometrics may suspend or terminate the services provided under these Terms and Conditions, with or without notice, in the event that the Clients fail to pay the Fee when due.  In addition, either party may terminate the Agreement in the event that the other party breaches any of its obligations hereunder and fails to reasonably cure such breach within ten (10) days following receipt of a notice from the non-breaching party of the nature of such party’s breach.  Fees paid will not be refunded in the event that the services provides by Axiometrics are suspended or terminated as a result of any Client not fulfilling its respective obligations hereunder.  No termination will relieve Client from their obligation to pay Fees to Axiometrics that were earned prior to such termination.   Upon termination, Client will promptly cease all use of the Market Data Subscription and will return or destroy, at Axiometrics’ election, all information and other assets supplied through the Market Data Subscription license in Client’s possession or control, except that Client may maintain such documentation a) as may be expressly required by applicable law and b) that is physically printed in hard copy format.  .
  4. Use of Market Data Subscription.
    1. Permitted Usage. Client may use the Market Data Subscription only for their own respective internal information and purposes.  Client may: (i) reproduce and store information from the Market Data Subscription in one or more of their respective databases for retrieval, analysis, manipulation, report preparation, or other lawful purpose, (ii) provide and distribute, both internally and to its respective clients, and other recipients as set forth in the Subscription Schedule, in hard copy, facsimile or electronic format, any reports, presentations and other materials generated in the ordinary course of Client’s business, which incorporate, utilize or display limited portions of the Market Data Subscription; provided that such use or display is (1) without cost to Client’s customer and is one-time or occasional, (2) accompanied by a clear and conspicuous reference, according to Axiometrics Subscriber Marketing Policies (http://www.axiometrics.com/attribution-policy), as may be in place from time to time,  crediting Axiometrics as the source of such information, (3) not commercially or generally distributed, and (4) retain and store on Client’s servers or other secure storage license or leased by Client, Market Data Subscription during the Term, in any medium including, but not limited to, electronic storage, for use by Client as permitted herein.   Client may allow the Market Data Subscription to be disclosed to its employees, attorneys or accountants who require it for the purpose of their use hereunder and only if such employees, attorneys or accountants are subject to strict use and disclosure restrictions, limited to their use only, provided, however that Client shall remain liable for their unauthorized disclosures.   Client will employ commercially reasonable best effort security measures and undertake security precautions to prevent unauthorized access to or use of the Site or the Market Data Subscription or any contents contained therein and shall notify Axiometrics promptly of any such unauthorized access or use.   Notwithstanding the foregoing, in no event may Client, or any other parties covered in this Agreement, share or lend its Site login credentials with any person other than authorized employees of such Client, or otherwise allow access to the Site through such Client’s login credentials, to any persons not expressly authorized to access the Site by Axiometrics.
    2. Resultant Data. Client may use the Market Data Subscription to create Resultant Data (as defined below).  Resultant Data and all intellectual property rights therein shall be owned solely and exclusively by Client without restriction.  Without limiting the foregoing, Axiometrics shall have no right or title to, or any proprietary right in, any Resultant Data, however, Client will provide Axiometrics a copy or a representative mock-up of any Resultant Data upon request.  “Resultant Data” means data or other information obtained from material calculations, manipulations, analyses, and/or other processes performed by or on behalf of the applicable Client and based on the Market Data Subscription; provided that the Resultant Data is materially different in form and content than the Market Data Subscription on which the Resultant Data is based and is not a mere extraction, basic calculation, adjustment of or reordering of, the data, information or report provided by Axiometrics.
    3. Restricted Usage. In no event may any Client, or any other parties covered in this Agreement, assign, transfer, sell, license, rent, loan, lend, transmit, or otherwise distribute, republish or disclose the Market Data Subscription to any party other than expressly set forth herein. Client agrees to protect all copyright and other proprietary rights of Axiometrics and its licensors in the Client’s use of the Market Data Subscription, and to comply with reasonable written requests made by Axiometrics to protect said rights.  Neither Client nor any other parties covered in this Agreement may use, directly or indirectly, the Market Data Subscription, or any portion thereof, in any manner which competes, directly or indirectly, with the services provided by Axiometrics during the Term and for a  period of three (3) years thereafter.   Notwithstanding anything to the contrary in this Agreement, in no event may access to the Site be provided by any Client to any direct or indirect competitor of Axiometrics.   
  5. Use of Axiometrics Transactional Reports. Except as otherwise expressly provided in Section 6 and upon payment in full of the Fee described in the Transaction Schedule, Axiometrics grants to Client a perpetual, non-exclusive, non-transferable, non-sublicensable license to use the Axiometrics Transactional Reports delivered to Client by Axiometrics.
  6. Intellectual Property Rights.
    1. The parties acknowledge and agree that no right, title or interest to the Deliverables will transfer pursuant to these Terms and Conditions, except as expressly described herein. In no event may any Client make any claim against Axiometrics with respect to the Deliverables that would restrict or attempt to restrict Axiometrics’ use of or value in the Deliverables. Neither Axiometrics work papers nor Axiometrics IP shall constitute a Deliverable and shall remain the sole and exclusive property of Axiometrics.  Similarly, Axiometrics may use, reference or include certain market data in connection with the Deliverables, which data or information was gathered, developed or licensed by Axiometrics and is Axiometrics confidential property.   Axiometrics shall retain sole and exclusive ownership of and all right, title and interest in and to its data (including all data collected, generated and summarized in any Deliverable), formula, know-how, concepts, techniques, methodologies, templates and tools that existed or was developed, gathered, generated or licensed by Axiometrics prior to the Effective Date or in connection with the Deliverables, including those incorporated into any Deliverable (collectively, the “Axiometrics IP”) subject only to the limited license granted to Client.
    2. Public Information. Each party hereby grants to the other the right to use and display the other party’s publicly available data and information which is provided either directly or through such party’s website or other data delivery platforms.
    3. Restricted Acts. Client will not allow anyone working as an employee, contractor, agent, or otherwise on its behalf to (i) perform any technical security, integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan, with respect to the Site, or any Axiometrics sponsored website or platform, or (ii) attempt to use or access the data of Axiometrics or any of its clients or suppliers, other than as expressly authorized in these Terms and Conditions. Client shall not, nor allow anyone working as an employee, contractor, agent, or otherwise on its behalf, use any software tool designed to automatically emulate the actions of a human user (such tools are commonly referred to as "Robots") in conjunction with the Site or any website or platform maintained or sponsored by Axiometrics.  Robots are commonly used for the purpose of data entry, data loading, data migration, load testing, performance testing, performance monitoring, performance measuring and stress testing.  If Client or anyone working on any Client’s behalf uses a Robot or other similar programs, with the Site or the services provided by Axiometrics, for the purposes listed above, or any other purpose, it shall constitute a breach of this Agreement.   Client shall indemnify and hold Axiometrics and its clients, suppliers and affiliates, harmless without imitation from any damages, losses, claims, costs, expenses or liabilities arising from downtime, production incidents, loss of data or other technical problems arising as a result of any Client’s breach of this Section 6(c), including without limitation, damages or credits to Axiometrics customers arising from downtime and costs, including third party costs, related to the correction of such downtimes, production incidents or other technical problems.
  7. Non-Solicitation. Client recognizes and acknowledges that it is entering into a confidential relationship, during which Client will have access to and develop professional relationships with Axiometrics’ personnel. In order to protect and preserve the value that Axiometrics’ employees represent, Client agrees not to solicit or hire Axiometrics’ employees.   Client therefore covenants and agrees that during the Term and for a period of twelve (12) months thereafter (the “Restricted Period”), Client will not, either directly or indirectly, solicit for employment, employ or engage any person employed by Axiometrics (or any of its Affiliates), or encourage such employee to terminate his or her relationship with Axiometrics at any time during the Restricted Period.   For purposes of this Section 7, a person is deemed to be employed or engaged by Axiometrics if such person was employed or engaged at any time during the twelve (12) month period immediately preceding the Client’s proposed solicitation or engagement of such person. Notwithstanding the foregoing, Client shall not be deemed to violate the foregoing employee non-solicitation restriction merely by initiating general employment advertising or solicitations that are not targeted at Axiometrics’ employees or consultants, and hiring or engaging persons who respond to such public advertising, provided that such person was not otherwise targeted or directly solicited by the Client.
  8. Disclaimer. CLIENT ACKNOWLEDGES AND AGREES THAT OTHER THAN AS EXPRESSLY PROVIDED HEREIN, THE DELIVERABLES LICENSED BY AXIOMETRICS UNDER THE SCHEDULES AND THESE TERMS AND CONDITIONS ARE BEING MADE AVAILABLE TO SUCH CLIENT ON AN “AS IS” BASIS. THE PARTIES NEGOTIATED THE SCHEDULES WITH DUE REGARD FOR THE PARTIES’ BUSINESS RISK ASSOCIATED WITH USE OF THE DELIVERABLES.  THUS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ANY LIMITED REMEDY, AXIOMETRICS PROVIDES NO WARRANTIES, EXPRESS AND IMPLIED, AND HEREBY DISCLAIMS, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  AXIOMETRICS DOES NOT WARRANT THAT THE DELIVERABLES WILL BE PROVIDED WITHOUT INACCURACIES, ERRORS OR OTHER DEFECTS, NOR DOES AXIOMETRICS WARRANT THAT THE DELIVERABLES WILL MEET SUCH CLIENT’S REQUIREMENTS OR THAT THE SITE WILL BE UNINTERRUPTED.   NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AXIOMETRICS OR ANY OF ITS EMPLOYEES, AGENTS, OR OFFICERS, WILL IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
  9. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR, AND EACH PARTY WAIVES AS TO THE OTHER PARTY, ITS OWNERS, OFFICERS, EMPLOYEES AND AGENTS, TO THE EXTENT PERMITTED BY LAW, ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES INCURRED BY SUCH CLIENT OR ITS CUSTOMERS, ASSOCIATED WITH THE DELIVERABLES, ANY ASPECT OF THE SCHEDULES OR THESE TERMS AND CONDITIONS OR ANY ACTION OF EITHER PARTY. THESE LIMITATIONS APPLY WHETHER OR NOT SUCH LOSSES OR DAMAGES ARE BASED IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, INDEMNITY, OR OTHERWISE, EVEN IF ONE PARTY HAS BEEN ADVISED OF, BY THE OTHER PARTY, THE POSSIBILITY OF SUCH DAMAGES.  THESE LIMITATIONS APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.  IN ANY EVENT, UNDER NO CIRCUMSTANCES WILL AXIOMETRICS’ CUMULATIVE LIABILITY UNDER THESE TERMS AND CONDITIONS OR THE SCHEDULES EXCEED THE AMOUNT OF FEES PAID HEREUNDER TO AXIOMETRICS BY CLIENT, OR ON BEHALF OF CLIENT, DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
  10. Excused Performance. Axiometrics will be excused from its performance and will have no liability for any period and to the extent that Axiometrics is prevented, hindered or delayed from performing any services or other obligations under the Schedules or these Term and Conditions, in whole or in part, as a result of acts, omissions or events beyond the reasonable control of Axiometrics. In the event that a third party supplier suspends or cancels delivery of data incorporated into the Deliverables, Client acknowledges and agrees that Axiometrics may suspend or cancel delivery of the corresponding portion or all of the Deliverables hereunder.  Such suspension or cancellation will not result in a return of Fees paid.
  11. No Waiver. No failure of either party to exercise any power or right given any party hereunder or to insist upon strict compliance by either party with its obligations hereunder, shall constitute a waiver of either party’s right to demand exact compliance with the terms hereof.
  12. Non-Disparagement. Client acknowledges and agrees that it will not publicly defame or criticize, whether in writing, electronic posting, verbally or otherwise, the services, business, integrity, veracity or reputation of Axiometrics and its affiliates, subsidiaries, officers, directors, managers, employees, shareholders or members in either a professional or personal manner at any time.
  13. Independent Contractor. Axiometrics is an independent contractor as to the Client in connection with the license of the Deliverables and the services provided by Axiometrics under this Agreement. Nothing in this Agreement shall be deemed or construed to create a partnership, joint venture or common interest in profits or income between Client and Axiometrics.   Except as otherwise specifically provided herein, and particularly in Section 9 of these Terms and Conditions neither Client nor Axiometrics will be liable for any obligation incurred by the other and shall disclaim any sharing of liabilities, losses or debts of the other.  Neither Axiometrics nor Client is authorized or empowered to bind the other to any third party obligations unless authorized in writing by the party to be bound.
  14. Notices. Whenever under the Agreement one party is required or permitted to give notice to the other, such notice shall be deemed given when delivered in hand or three (3) business days after the date mailed by United States mail, certified mail, return receipt requested, postage prepaid, and addressed, in the case of Axiometrics, to the address set forth in the first paragraph of these Term and Conditions, and in the case of Client, to the address(es) set forth in the Schedules. Either party may change its address for notification purposes by giving the other three (3) days prior written notice of the new address and the date upon which it will become effective.  Notice may also be provided by email, Portable Document Format (PDF) or any other reliable electronic means, and shall be deemed to be given or received, as applicable, on the date delivered to the email address listed below Client’s signature on the Schedules.
  15. Severability. In the event any provision of these Terms and Conditions is held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions of these Terms and Conditions shall not be affected and, in lieu of such invalid or unenforceable provision, there shall be added automatically as part of these Terms and Conditions one or more provisions as similar in terms as may be valid and enforceable under applicable law.
  16. Entire Agreement / Amendments. These Terms and Conditions, together with the Schedules and each Schedule and Exhibit attached hereto and thereto, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous representations, understandings or agreements, whether oral or written, relating to the subject matter hereof. In the event of any direct conflict between the Schedules and these Terms and Conditions which cannot be reasonably harmonized, the terms of the Schedules shall control.  These Terms and Conditions may be amended from time to time by Axiometrics, in its sole discretion, including by those terms and conditions of Axiometrics posted on the Site, which to the extent conflicting with these Terms and Conditions, shall control and govern.  No amendment or modification of the Schedules will be binding on any party unless such amendment is in writing and expresses an intention to amend the Schedules and is executed by the parties.
  17. Governing Law and Venue. All claims, disputes, lawsuits or other action concerning any and all matters related to or arising under or by virtue of this Agreement, brought by Client, shall be commenced exclusively in the applicable state or federal court located in Dallas county, Texas, and venue of any such action shall rest exclusively in Dallas county, Texas and the Agreement shall be governed and construed in accordance with the laws of the State of Texas, without regard to the choice of law rules of Texas. All claims, disputes, lawsuits or other action concerning any and all matters related to or arising under or by virtue of this Agreement, brought by Axiometrics, shall be commenced in the applicable state or federal court of preference by Client and the Agreement shall be governed and construed in accordance with the laws of that court of preference.
  18. Survival. Notwithstanding the termination of these Terms and Conditions, or the services of Axiometrics, for any reason, the provisions of Sections 4 through this Section 18 shall survive and be binding upon the Client and Axiometrics.

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