Use of the Services and Axiom Properties
The Website, the Services, the Software (defined in Section 1.1 below), and the information and content available on or through the Website, the Software, and the Services (as these terms are defined herein) (each, a “Axiom Property” and collectively, the “Axiom Properties”) are protected by copyright laws throughout the world. Subject to the Agreement, Axiom grants you a limited license to reproduce portions of Axiom Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Axiom in a separate license, your right to use any and all Axiom Properties is subject to the Agreement.
1.1 Axiom Software. Use of any software and associated documentation that is made available via the Website or the Services (“Software”) is governed by the terms of the license agreement that accompanies or is included with the Software, or by the license agreement expressly stated on the Website page(s) accompanying the Software. These license terms may be posted with the Software downloads or at the Website page where the Software can be accessed. You shall not use, download or install any Software that is accompanied by or includes a license agreement unless you agree to the terms of such license agreement. At no time will Axiom provide you with any tangible copy of our Software. Axiom shall deliver access to the Software via electronic transfer or download and shall not use or deliver any tangible media in connection with the (a) delivery, installation, updating or problem resolution of any Software (including any new releases); or (b) delivery, correction or updating of documentation. For the purposes of this section tangible media shall include, but not be limited to, any tape disk, compact disk, card, flash drive, or any other comparable physical medium. Unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution or use on a service bureau basis. If there is any conflict between the Agreement and the license agreement, the license agreement shall take precedence in relation to that Software (except as provided in the following sentence). If the Software is a pre-release version, then, notwithstanding anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Software for any commercial or production purposes. If no license agreement accompanies use of the Software, use of the Software will be governed by the Agreement. Subject to your compliance with the Agreement, Axiom grants you a non-assignable, non-transferable, non-sublicensable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner permitted by the Agreement. Some Software may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of these terms.
1.2 Updates. You understand that Axiom Properties are evolving. As a result, Axiom may require you to accept updates to Axiom Properties that you have installed on your computer or mobile device. You acknowledge and agree that Axiom may update Axiom Properties with or without notifying you. You may need to update third-party software from time to time in order to use Axiom Properties.
1.3 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Axiom Properties or any portion of Axiom Properties, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Axiom Properties (including images, text, page layout or form) of Axiom; (c) you shall not use any metatags or other “hidden text” using Axiom’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Axiom Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access Axiom Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of Axiom Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Axiom Properties. Any future release, update or other addition to Axiom Properties shall be subject to the Agreement. Axiom, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Axiom Property terminates the licenses granted by Axiom pursuant to the Agreement. Notwithstanding the foregoing, decompiling any portion of Axiom Properties is permitted to the extent the laws of your jurisdiction give you the right to do so to obtain information necessary to render Axiom Properties interoperable with other software; provided, however, that you must first request such information from Axiom and Axiom may, in its discretion, either provide such information to you or impose reasonable conditions, including a reasonable fee, on such use of the source code for such Axiom Properties to ensure that Axiom’s (and its suppliers’) proprietary rights in such source code are protected.
1.4 Third-Party Materials. As a part of Axiom Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Axiom to monitor such materials and that you access these materials at your own risk.
2.1 Registering Your Account. In order to access certain features of Axiom Properties you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a User who has registered an account on the Website (“Account”) or has a valid account on the social networking service (“SNS”) through which the User has connected to the Website (each such account, a “Third-Party Account”).
2.2 Access Through a SNS. If you access the Axiom Properties through a SNS as part of the functionality of the Website and/or the Services, you may link your Account with Third-Party Accounts by allowing Axiom to access your Third-Party Account as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Axiom and/or grant Axiom access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Axiom to pay any fees or making Axiom subject to any usage limitations imposed by such third-party service providers. By granting Axiom access to any Third-Party Accounts, you understand that Axiom may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through Axiom Properties (collectively, “Content”) that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through Axiom Properties via your Account. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on Axiom Properties. Please note that if a Third-Party Account or associated service becomes unavailable or Axiom’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through Axiom Properties. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Website. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND AXIOM DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Axiom makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Axiom is not responsible for any SNS Content.
2.3 Registration Data. In registering an account on the Website, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (l) at least sixteen (16) years old; (m) of legal age to form a binding contract; and (n) not a person barred from using Axiom Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Axiom Properties by minors. You may not share your Account or password with anyone, and you agree to (y) notify Axiom immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Axiom has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Axiom has the right to suspend or terminate your Account and refuse any and all current or future use of Axiom Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. Axiom reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Axiom Properties if you have been previously removed by Axiom, or if you have been previously banned from any of Axiom Properties.
2.4 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Axiom.
2.5 Necessary Equipment and Software. Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Axiom Properties, including but not limited to, a mobile device that is suitable to connect with and use Axiom Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Axiom Properties. By providing your cellphone number and using the Services, you hereby affirmatively consent to our use of your cellphone number for calls and texts in order to perform and improve upon the Services and to provide you with support related to the Services or the Software. Standard message charges or other charged from your wireless carrier may apply. You may opt out of receiving text messages from us by emailing email@example.com.
3.1 Axiom Properties. You agree that Axiom and its suppliers own all rights, title and interest in Axiom Properties (including but not limited to, any titles, computer code, themes, objects, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, and documentation). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Axiom Properties.
and all related graphics, logos, service marks and trade names used on or in connection with any Axiom Properties or in connection with the Services are the trademarks of Axiom and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Axiom Properties are the property of their respective owners.
3.3 Other Content. You agree that you have no right, title, or interest in or to any Content that appears on or in Axiom Properties.
3.4 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Axiom through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Axiom has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Axiom a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Axiom Properties and/or Axiom’s business.
5.1 Third-Party Websites.Axiom Properties may contain links to third-party websites (“Third-Party Websites”). When you click on a link to a Third-Party Website, we will not warn you that you have left Axiom Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites are not under the control of Axiom. Axiom is not responsible for any Third-Party Websites. Axiom provides these Third-Party Websites and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, or any product or service provided in connection therewith. You use all links in Third-Party Websites at your own risk. When you leave our Website, the Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
You agree to indemnify and hold Axiom, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Axiom Party” and collectively, the “Axiom Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any Axiom Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. Axiom reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Axiom in asserting any available defenses. This provision does not require you to indemnify any of the Axiom Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Axiom Properties.
Disclaimer of Warranties and Conditions
7.1 As Is
. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF AXIOM PROPERTIES IS AT YOUR SOLE RISK, AND AXIOM PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. AXIOM PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.
AXIOM PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) AXIOM PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF AXIOM PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF AXIOM PROPERTIES WILL BE ACCURATE OR RELIABLE.
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH AXIOM PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS AXIOM PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. AXIOM MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM AXIOM OR THROUGH AXIOM PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
From time to time, Axiom may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Axiom’s sole discretion. The provisions of this section apply with full force to such features or tools.
7.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT AXIOM PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD AXIOM PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
Limitation of Liability
8.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL AXIOM PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT AXIOM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE AXIOM PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH AXIOM PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON AXIOM PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO AXIOM PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF AN AXIOM PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY AN AXIOM PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY AN AXIOM PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
8.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL AXIOM PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO Axiom by you during the one-month period prior to the act, omission or occurrence giving rise to such liability and (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF AN AXIOM PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY AN AXIOM PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY AN AXIOM PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
8.3 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN AXIOM AND YOU.
Procedure for Making Claims of Copyright Infringement
Procedure for Making Claims of Copyright Infringement. It is Axiom’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Axiom by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on Axiom Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on Axiom Properties of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Axiom’s Copyright Agent for notice of claims of copyright infringement is as follows: Gordon Allott, 548 Market St, San Francisco, CA, 94104, USA.
10.1 Violations. If Axiom becomes aware of any possible violations by you of the Agreement, Axiom reserves the right to investigate such violations. If, as a result of the investigation, Axiom believes that criminal activity has occurred, Axiom reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Axiom is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Axiom Properties, in Axiom’s possession in connection with your use of Axiom Properties, to (a) comply with applicable laws, legal process or governmental request; (b) enforce the Terms, (c) respond to any claims that any Content that you or your agent(s) provide to Axiom Properties violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of Axiom, its Users or the public, and all enforcement or other government officials, as Axiom in its sole discretion believes to be necessary or appropriate.
. In the event that Axiom determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for Axiom Properties, Axiom reserves the right to:
Warn you via e-mail (to any e-mail address you have provided to Axiom) that you have violated the Agreement;
Delete any Content provided by you or your agent(s) to Axiom Properties;
Discontinue your registration(s) with any of the Axiom Properties, including any Services;
Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
Pursue any other action which Axiom deems to be appropriate.
Term and Termination
11.1 Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Axiom Properties, unless terminated earlier in accordance with the Agreement.
11.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used Axiom Properties or (b) the date you accepted the Agreement and will remain in full force and effect while you use any Axiom Properties, unless earlier terminated in accordance with the Agreement.
11.3 Termination of Services by Axiom. If you have materially breached any provision of the Agreement or if Axiom is required to do so by law (e.g., where the provision of the Website, the Software or the Services is, or becomes, unlawful), Axiom has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Axiom’s sole discretion and that Axiom shall not be liable to you or any third party for any termination of your Account.
11.4 Termination of Services by You. If you want to terminate the Services provided by Axiom, you may do so by (a) notifying Axiom at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Axiom’s address set forth below.
11.5 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof). Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of any Content associated therewith from our live databases. Axiom will not have any liability whatsoever to you for any suspension or termination, including for deletion of Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
11.6 No Subsequent Registration. If your registration(s) with or ability to access Axiom Properties, or any other Axiom community is discontinued by Axiom due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Axiom Properties or any Axiom community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Axiom Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Axiom reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
Axiom Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Axiom intends to announce such Services or Content in your country. Axiom Properties are controlled and offered by Axiom from its facilities in the United States of America. Axiom makes no representations that Axiom Properties are appropriate or available for use in other locations. Those who access or use Axiom Properties from other countries do so at their own volition and are responsible for compliance with local law.
Dispute Resolution in the United States. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. If you are a U.S. resident, it requires you to arbitrate disputes with Axiom and limits the manner in which you can seek relief from us.
13.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Website or Services, or any aspect of your relationship with Axiom, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Axiom may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of this Agreement.
13.2 Arbitration Rules and Forum
. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send an email to firstname.lastname@example.org and send a letter requesting arbitration and describing your claim to our registered agent:
ATTN: Legal Department
548 Market St
San Francisco, CA 94104
The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/
; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/
. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Axiom will pay them for you. In addition, Axiom will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
13.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Axiom. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
13.4 Waiver of Jury Trial. YOU AND AXIOM HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Axiom are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
13.5 Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of Delaware. All other claims shall be arbitrated.
13.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: [EMAIL], within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Axiom username (if any), the email address you used to set up your Axiom account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
13.7 Severability. Except as provided in subsection 13.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
13.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Axiom.
13.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Axiom makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Axiom at the following address: email@example.com.
14.1 Electronic Communications. The communications between you and Axiom may take place via electronic means, whether you visit Axiom Properties or send Axiom e-mails, or whether Axiom posts notices on Axiom Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Axiom in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Axiom provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
14.2 Release. You hereby release Axiom Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Axiom Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of Axiom Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by an Axiom Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
14.3 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Axiom’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
14.4 Force Majeure. Axiom shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
14.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Axiom Properties, please contact us at: [EMAIL]. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
14.6 Limitation Period. YOU AND AXIOM AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, AXIOM PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
14.7 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Axiom agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Delaware.
14.8 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the AGREEMENT.
14.9 Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English. This Agreement, and any contract between us, are only in the English language.
14.10 Notice. Where Axiom requires that you provide an e-mail address, you are responsible for providing Axiom with your most current e-mail address. In the event that the last e-mail address you provided to Axiom is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Axiom’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Axiom at the following address: [MAILING ADDRESS]. Such notice shall be deemed given when received by Axiom by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
14.11 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
14.12 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
14.13 Export Control. You may not use, export, import, or transfer Axiom Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Axiom Properties, and any other applicable laws. In particular, but without limitation, Axiom Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Axiom Properties, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Axiom Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Axiom are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Axiom products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
14.14 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
14.15 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
The following provisions shall apply only if you are located in the countries listed below.
15.1 United Kingdom. A third party who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Agreement, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
15.2 Germany. Notwithstanding anything to the contrary in Section 8, Axiom is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).