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Axiad Conductor | Axiad Mesh | Axiad Confirm | Last Updated: September 30, 2026
These Axiad Terms of Use (this "Agreement") are entered into between Axiad IDS, Inc., a Delaware corporation with offices at 101 Metro Drive, Suite 560, San Jose, CA 95110 ("Axiad"), and the customer identified in the applicable Order Form ("Customer"). This Agreement governs Customer's access to and use of the Axiad Conductor, Axiad Mesh, and Axiad Confirm cloud services, together with any related Professional Services, and is effective on the date Customer first executes an Order Form that references this Agreement or, if earlier, the date Customer first accesses or uses any Services (the "Effective Date"). By executing an Order Form, or by accessing or using the Services, Customer accepts this Agreement. If the individual accepting this Agreement does so on behalf of an entity, that individual represents that he/she has authority to bind the entity.
If Customer and Axiad have executed a written Axiad Cloud Services Agreement, that signed agreement governs the Services and supersedes this Agreement. Customer and Axiad may be referred to individually as a "party" and collectively as the "parties".
1.1 "Affiliate" of a party means any entity that, directly or indirectly, controls, is controlled by, or is under common control with, such party, where "control" means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity or the power to direct the management and policies of such entity.
1.2 "AI Features" means those features and functionality of the Services that use artificial intelligence, machine learning, large language models, or similar technologies to generate, summarize, classify, correlate, score, verify, or otherwise analyze information, including any conversational assistant, automated analysis, biometric or liveness matching, and machine-generated recommendations made available as part of the Services.
1.3 "Confidential Information" means any non-public information a party discloses or makes accessible to the other party under this Agreement or any Order Form. Confidential Information of Customer includes Account Information, Customer Data, and Customer Materials. Confidential Information of Axiad includes, without limitation, the Services, Documentation, technology, Threat Intelligence Data, security reports, and pricing.
1.4 "Connected System" means any third-party system, application, directory, data source, or service owned, licensed, controlled, or operated by or on behalf of Customer that Customer authorizes Axiad to connect to, access, or ingest data from in order to provide the Services (e.g., identity providers, directory services, certificate authorities, HR information systems, and endpoint or security telemetry sources).
1.5 "Customer Data" has the meaning given in Section 5.1.
1.6 "Customer Materials" means any data, content, configuration, credentials, or other materials that Customer or any of its Users provide, make accessible, or otherwise submit to Axiad in connection with the Services, including data ingested from a Connected System, but excluding Output and Axiad IP.
1.7 "Documentation" means the documentation Axiad makes available for the Services, including technical information, policies, and terms contained in or linked from webpages or applications associated with the Services, as updated by Axiad from time to time.
1.8 "Hardware" means physical products used in connection with the Services, such as smart cards, security keys, readers, printers, consumables, and devices, that are identified in an Order Form.
1.9 "Order Form" means an ordering document executed by Customer and Axiad or a Related Party that identifies the Services being ordered, usage parameters, fees, subscription term, and any related Professional Services or Hardware, and that references this Agreement.
1.10 "Output" means the results, insights, correlations, risk scores, verification results, findings, reports, inventories, analyses, and other data that the Services generate or derive from Customer Data, Customer Materials, or data from Connected Systems, excluding Axiad IP and Threat Intelligence Data.
1.11 "Professional Services" means implementation, configuration, migration, training, or other services provided by Axiad other than the standard Services, as described in an SOW.
1.12 "Related Party" means an Axiad-authorized reseller or distributor of the Services, or an Axiad Affiliate, as specified in the applicable Order Form.
1.13 "Services" means the Axiad-hosted, cloud-based services identified in an Order Form, consisting of one or more of (a) Axiad Conductor, the credential management service for issuing and managing identity credentials as described at https://www.axiad.ai/axiad-conductor; (b) Axiad Mesh, the identity risk management platform as described at https://www.axiad.ai/axiad-mesh; and/or (c) Axiad Confirm, the identity verification service as described at https://www.axiad.ai/axiad-confirm; in each case including the associated Documentation, portals, consoles, and APIs. Services do not include Professional Services or Hardware.
1.14 "SOW" or "Statement of Work" means a document executed by Customer and Axiad or a Related Party that describes Professional Services and expressly references this Agreement. Each SOW is incorporated into this Agreement upon execution.
1.15 "Term" has the meaning given in Section 8.1.
1.16 "Third Party Service" means a service, model, data feed, or software developed or licensed by a third party and made available by Axiad as part of the Services.
1.17 "Threat Intelligence Data" means data, indicators, signals, and enrichment obtained by Axiad from its own sources or third-party providers and made available within the Services to support risk assessment, verification, correlation, and analysis. As between the parties, Threat Intelligence Data is Axiad IP.
1.18 "Users" means individuals authorized by Customer to access or use the Services and who have been supplied credentials by Customer (or by Axiad at Customer's request), including Customer's employees, consultants, contractors, agents, and, where the applicable Product Schedule provides, Customer's own end users. Customer shall ensure that consultants, contractors, and agents who are Users have agreed in writing to obligations no less protective of Axiad than this Agreement.
2.1 Provision of Services. Axiad will make the Services available to Customer during the Term in accordance with this Agreement, the applicable Order Form, and the Documentation. Axiad will (a) use commercially reasonable efforts to make the Services available in accordance with the Service Level Agreement available at https://engage.axiad.com/service-level-agreement (the "SLA"); (b) maintain the security practices described at https://engage.axiad.com/information-security ("Information Security Exhibit"); and (c) operate, maintain, and update, the software and infrastructure Axiad uses to provide the Services (the "Axiad Infrastructure"). Unless an Order Form states otherwise, Axiad will provide the then-current generally available version of the Services.
2.2 Purchases Through Related Parties. Customer may purchase the Services directly from Axiad or through a Related Party. If Customer purchases through a Related Party, (a) the Services are made available under an Order Form between Customer and the Related Party, but this Agreement governs Customer's and its Users' use of the Services; (b) Customer's payment obligations and commercial relationship are with the Related Party, and Customer shall direct any refund or credit claims to the Related Party; and (c) the Related Party is not authorized to modify this Agreement or make representations or commitments on Axiad's behalf.
2.3 Right to Use. Subject to this Agreement, Axiad grants Customer a limited, non-exclusive, non-transferable, non-assignable (except as set forth in Section 9.3) right during the Term to access and use the Services and Documentation for Customer's internal business purposes, within the usage parameters (e.g., number of Users, identities, verifications, environments, or Connected Systems) stated in the applicable Order Form. Customer may permit its Affiliates and Users to use the Services under this right, provided Customer remains responsible for their compliance with this Agreement.
2.4 Professional Services. Any Professional Services will be described in an SOW. Axiad will perform Professional Services in a professional and workmanlike manner in accordance with the SOW. Unless the SOW states otherwise, Professional Services fees are invoiced as incurred, and Customer will reimburse reasonable, pre-approved travel expenses and related costs.
2.5 Updates; Future Functionality. Axiad may modify the features and/or functionality of the Services from time to time, provided the modification does not materially reduce the core functionality of the Services purchased during the then-current subscription term. Axiad will determine whether any new features and/or functionality require additional fees or acceptance of additional terms. Customer's purchase is not contingent on the delivery of any future feature or functionality, regardless of any oral or written communication about Axiad's plans.
2.6 Customer Responsibilities. Customer shall, and shall ensure that its Users: (a) comply with all applicable laws, including, without limitation, those relating to data privacy, biometric information, export control, and anti-corruption; (b) use reasonable security precautions in connection with access to and use of the Services, including protecting passwords, private keys, API tokens, and service accounts; (c) promptly cooperate with Axiad's reasonable investigation of any outage, security or service problem, or suspected breach of this Agreement; (d) provide and maintain true, accurate, and complete account information, including billing and technical contacts (the "Account Information"); (e) be responsible for all use of the Services under Customer's account, including by any person Customer directly or indirectly permits to access it, and immediately notify Axiad in writing of any known or suspected unauthorized access and/or use; (f) not store or transmit through the Services any content that infringes, misappropriates, or violates any applicable law or third-party right; and (g) use the Services only for Customer's internal business purposes and in accordance with this Agreement, the applicable Product Schedule, and the Documentation.
2.7 Restrictions. Customer shall not, and shall not permit any User or third party to: (a) modify or create derivative works of the Services; (b) reverse engineer, decompile, decrypt, or otherwise attempt to derive source code, models, model weights, algorithms, or underlying ideas of any component of the Services, including any AI Feature, except to the extent applicable law prohibits this restriction; (c) sell, resell, rent, lease, sublicense, or use the Services for timesharing or service bureau purposes, or otherwise make the Services available to any third party except Users; (d) disclose the results of any benchmark, penetration test, or performance evaluation of the Services without Axiad's prior written consent; (e) use the Services, any AI Feature, or any Output to build, train, or improve a competing product or service; (f) submit any content that Customer lacks the right to submit or that violates the acceptable-use terms of any applicable Third Party Service; (g) use the Services, any AI Feature, or any Output for unlawful surveillance, discriminatory profiling, or any purpose prohibited by applicable law; (h) interfere with the integrity or performance of the Services or attempt to gain unauthorized access to them or to related systems; or (i) remove or obscure any proprietary notices.
2.8 Suspension. Axiad may suspend Customer's and/or any User's access to the Services if: (a) Axiad reasonably believes the Services are being used in violation of this Agreement or applicable law; (b) Customer fails to cooperate with Axiad's investigation of a suspected violation or a governmental investigation; (c) Axiad reasonably determines that suspension is necessary to protect the Services, the Axiad Infrastructure, Axiad's other customers, or the public; (d) any undisputed payment is more than thirty (30) days past due; or (e) suspension is required by law. Axiad will use reasonable efforts to notify Customer in advance of a suspension, to limit the suspension to the affected Users or Services where practicable, and to restore access promptly once the cause is resolved. Suspension under this Section does not relieve Customer of its payment obligations.
3.1 Fees. Customer shall pay the fees stated in each Order Form and SOW (the "Fees") to Axiad or to the Related Party identified in the Order Form. Unless the Order Form states otherwise, all Fees are invoiced annually in advance and are due within thirty (30) days after the invoice date. Fees are based on the Services and quantities ordered, not actual usage, and quantities ordered may not be decreased during the then-current subscription term. Except as expressly provided in this Agreement, all payment obligations are non-cancelable and all Fees paid are non-refundable and not subject to set-off.
3.2 Late Payment; Disputes. Any amounts not paid when due will accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law and Customer is also responsible for paying all reasonable costs of collection. If Customer disputes an invoice in good faith, Customer shall notify Axiad in writing before the payment due date with reasonable detail, pay the undisputed portion of the invoice, and the parties will work in good faith to resolve the dispute promptly. Axiad will not charge interest on, or suspend for non-payment of, amounts disputed in good faith under this Section.
3.3 Overages. If Customer's use of the Services exceeds the usage parameters in the applicable Order Form, Axiad may invoice Customer for the excess at the rates stated in the Order Form or, if none are stated, at Axiad's current rates then in effect and prorated for the remainder of the subscription term, and Customer shall pay such invoice in accordance with Section 3.1.
3.4 Taxes. Fees exclude all sales, use, value-added, withholding, and similar taxes, levies, and duties ("Taxes"). Customer is responsible for all Taxes associated with its purchases under this Agreement and/or any Order Form, other than taxes based on Axiad's or the Related Party's net income. If Axiad or the Related Party is required to pay or collect Taxes for which Customer is responsible, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides a valid tax exemption certificate.
4.1 Service Warranty. Axiad warrants that (a) the Services will perform materially in accordance with the Documentation and the applicable Product Schedule; (b) Axiad will perform the Professional Services in a good and workmanlike manner; and (c) Axiad will implement commercially reasonable measures to detect and mitigate viruses and other malicious code on the Axiad systems that provide the Services. Axiad is not responsible for any breach of the foregoing warranties to the extent caused by Customer's or a User's unauthorized or misuse of the Services, breach of this Agreement, or failure to use the Services in accordance with the Documentation. Customer's exclusive remedy for breach of the warranty in clause (a) is for Axiad to correct the non-conformity or, if Axiad cannot do so within a reasonable time, for Customer to terminate the affected Order Form upon written notice to Axiad and receive a pro-rata refund of prepaid, unused Fees for the affected Services.
4.2 AI Features and Output; No Reliance. Customer acknowledges that AI Features and Output are generated by automated systems, may be incomplete or inaccurate, and may vary between requests. Axiad does not warrant that any Output, risk score, verification result, correlation, inventory, or recommendation is accurate, complete, current, or fit for any particular purpose. Output is an informational aid and is not a substitute for Customer's independent judgment. Customer is solely responsible for reviewing and validating Output and for deciding whether and how to act on and/or use it, and shall not use Output as the sole basis for any decision that produces a legal or similarly significant effect concerning an individual (including employment, access, or security decisions) where applicable law requires human review, notice, or appeal rights. To the extent Customer uses Output in any such a decision, Customer is the "deployer," "controller," or decision-maker under applicable automated-decision-making and artificial-intelligence laws and is responsible for any resulting notice, human-review, appeal, impact-assessment, and transparency obligations. Where Customer makes a conversational assistant or other AI Feature available to individuals, Customer is responsible for disclosures required by law that they are interacting with an artificial-intelligence system. Axiad will make available in the Documentation a description of each AI Feature's intended use, limitations known to Axiad at time of disclosure, and the general categories of data used to generate Output, and will notify Customer of material changes to these matters. Threat Intelligence Data and other third-party data are provided "as is." This Section allocates responsibility between the parties only and does not limit either party's independent obligations to regulators or third parties.
4.3 Hardware. Hardware is manufactured by third parties. Unless an Order Form expressly states otherwise, Axiad provides Hardware "as is," passes through to Customer any manufacturer warranty to the extent transferable, and has no other warranty, support, or return obligation with respect to Hardware. Title to Hardware passes to Customer on delivery and payment of the applicable Fees; risk of loss passes on delivery to the carrier that is delivering the Hardware.
4.4 High-Risk Activities. The Services are not designed or intended for use in any environment in which failure of the Services could lead to death, personal injury, or severe physical or environmental damage, including, without limitation, the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, life support, or weapons systems. Customer shall not use the Services for any such purpose.
4.5 DISCLAIMER. EXCEPT AS EXPRESSLY STATED IN SECTION 4.1, THE SERVICES, PROFESSIONAL SERVICES, HARDWARE, DOCUMENTATION, AI FEATURES, OUTPUT, THREAT INTELLIGENCE DATA, AND THIRD PARTY SERVICES ARE PROVIDED "AS IS," AND AXIAD AND ITS SUPPLIERS AND THIRD PARTY SERVICE PROVIDERS MAKE NO OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, TO THE MAXIMUM EXTENT PERMITTED BY LAW. AXIAD DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THEY WILL MEET CUSTOMER'S REQUIREMENTS, OR THAT OUTPUT WILL BE ACCURATE OR COMPLETE. AXIAD IS NOT RESPONSIBLE FOR DELAYS, INTERRUPTIONS, OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET OR ELECTRONIC COMMUNICATIONS, OR FOR ANY ACT OR OMISSION OF A CONNECTED SYSTEM OR ITS PROVIDER.
5.1 Customer Data. As between the parties, Customer owns all right, title, and interest in and to all data and content that Customer or its Users submit to or store in the Services, including Account Information, Customer Materials, and data ingested from Connected Systems (collectively, "Customer Data"). Customer grants Axiad and its sub-processors a non-exclusive, worldwide, royalty-free license during the Term to host, copy, process, transmit, and display Customer Data solely as necessary to provide, secure, maintain, support, and/or improve the Services in accordance with this Agreement, including to generate Output. Axiad will protect Customer Data in accordance with Information Security Exhibit and the DPA.
5.2 Data Processing Addendum. To the extent Axiad processes personal information contained in Customer Data on Customer's behalf, the Axiad Data Processing Addendum available at https://engage.axiad.com/data-processing-addendum (the "DPA") is incorporated into this Agreement. As between the parties, Customer is the "business," "controller," or equivalent and Axiad is the "service provider," "processor," or equivalent under applicable data-protection laws. In the event of a conflict between this Agreement and the DPA with respect to the processing of personal information, the DPA applies and controls.
5.3 Restricted Data. Customer shall not submit to the Services any special or sensitive category of personal information that the Services are not designed to process, including, without limitation, any protected health information subject to HIPAA, payment card data subject to PCI DSS, or (except for Axiad Confirm as described at https://www.axiad.ai/axiad-confirm biometric identifiers, unless the parties have executed a written addendum governing any such data. Axiad has no obligation or liability with respect to data submitted or made accessible in violation of this Section.
5.4 Connected Systems. Customer may authorize Axiad to connect to and ingest data from Connected Systems. Customer represents and warrants that it has, and will maintain, all rights, consents, and authorizations necessary for Axiad to access and process data from each Connected System for the purposes of this Agreement, and that doing so will not violate any applicable law or any agreement between Customer and any third party. Customer is responsible for the accuracy and legality of data obtained from Connected Systems and for provisioning and managing the credentials and permissions used to establish each connection. Axiad will access Connected Systems only as configured and authorized by Customer and solely to provide the Services and will protect stored Connected System credentials in accordance with Information Security Exhibit. Customer may revoke Axiad's access to a Connected System at any time; Customer acknowledges any such that revocation may degrade or disable affected Services and that such degradation is not a breach of this Agreement or any Order Form by Axiad. Axiad is not responsible for the availability, content, or conduct of any Connected System or its provider.
5.5 Axiad IP. Axiad and its licensors own and retain all right, title, and interest in and to the Services, Documentation, Axiad Infrastructure, AI Features (including underlying models, algorithms, and systems), Threat Intelligence Data, any deliverables or work product from Professional Services (other than Customer Confidential Information incorporated in them), and all modifications, improvements, enhancements, and derivative works of the foregoing, together with all intellectual property rights therein (collectively, "Axiad IP"). Except for the limited rights expressly granted in this Agreement during the Term, no rights in any Axiad IP are granted to Customer. If Customer or a User provides suggestions or feedback regarding the Services, Axiad may use that feedback without restriction, obligation, attribution, or payment of any royalty or other fee.
5.6 Output. As between the parties, Customer owns the Output that the Services generate about Customer's own identities, Users, assets, and environment, subject to Axiad's rights in the Axiad IP and Threat Intelligence Data used to produce it. Axiad's ownership of the AI Features does not extend to such Output. Customer may use Output for its internal business purposes and as permitted by the applicable Product Schedule.
5.7 Deidentified and Aggregated Data. Axiad may create and use deidentified and aggregated data derived from Customer Data, Customer Materials, Output, and Customer's use of the Services to operate, secure, analyze, upgrade, maintain, and/or improve the Services, to develop new features and Threat Intelligence Data, and to detect and prevent fraud and/or abuse. Axiad will (a) implement technical and organizational measures reasonably designed to prevent reidentification of any individual or Customer; (b) not attempt to reidentify such data; (c) maintain and use such data solely in deidentified form; and (d) contractually prohibit any recipient from attempting reidentification. Data subject to reversible tokenization is not deidentified for purposes of this Section. Deidentified and aggregated data are Axiad IP.
5.8 Data Retention and Export. Axiad will retain Customer Data in the Services during the Term for the period stated in the applicable Product Schedule. Customer may export Customer Data at any time during the Term using the Services' export functionality or, on written request, Axiad will make Customer Data available in a commonly used format within forty-five (45) days. Axiad's retention of Customer Data is for the purpose of providing the Services and should not be relied on by Customer to satisfy its own legal, audit, or compliance retention requirements. Customer is responsible for retaining and managing its data in accordance with applicable law and its internal policies. Deletion of Customer Data following expiration or termination of this Agreement is governed by Section 8.4.
6.1 Ownership. Confidential Information remains the property of the disclosing party or, as applicable, the third parties who entrusted it to the disclosing party.
6.2 Protection. The receiving party will use at least the same degree of care it uses to protect its own confidential information of like importance, and not less than reasonable care, to (a) not use the disclosing party's Confidential Information for any purpose outside the scope of this Agreement; (b) limit access to those of its and its Affiliates' employees, officers, consultants, contractors, and professional advisors (collectively, "Representatives") who need access to perform or receive the Services and who are bound by confidentiality obligations no less protective than those in this Agreement; and (c) protect the disclosing party's trade secrets for so long as they remain trade secrets. Each party is responsible for any breach of this Section by its Representatives. Either party may disclose the terms of this Agreement in confidence to actual or prospective financing sources, acquirers, and professional advisors. Axiad may disclose the terms of this Agreement and any Order Form to a Related Party or sub-processor to the extent necessary to perform its obligations, under confidentiality terms no less protective than this Section.
6.3 Exclusions. Confidential Information does not include information that (a) is or becomes generally known to the public without breach of any obligation owed to the disclosing party; (b) was known to the receiving party before disclosure without breach of any obligation owed to the disclosing party; (c) is received from a third party without breach of any obligation owed to the disclosing party; or (d) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information.
6.4 Compelled Disclosure. If the receiving party is required by law, regulation, or court order to disclose Confidential Information, it shall, to the extent legally permitted, give the disclosing party prompt written notice and reasonable cooperation, at the disclosing party's expense, to allow the disclosing party to contest or limit the disclosure or to seek a protective order, and shall disclose only the portion of Confidential Information it is legally required to disclose.
6.5 Duration; Remedies. The obligations in this Section 6 continue for five (5) years after expiration or termination of this Agreement, except that obligations with respect to trade secrets continue for so long as the information remains a trade secret, and obligations with respect to Customer Data continue for so long as Axiad retains it. Each party acknowledges that unauthorized disclosure of Confidential Information may cause irreparable harm for which monetary damages would be an inadequate remedy, and the disclosing party may seek injunctive relief in addition to any other legal or equitable remedy.
7.1 Indemnification by Axiad. Axiad shall defend Customer and its officers, directors, and employees against any claim, demand, suit, or proceeding brought by a third party alleging that the Services, as provided by Axiad and used by Customer in accordance with this Agreement, infringe a third party’s United States patent, copyright, or registered trademark, or misappropriate a trade secret (an "Infringement Claim"), and shall pay any damages and costs finally awarded against Customer or agreed in a settlement approved in writing by Axiad. Axiad has no obligation for any Infringement Claim arising from or related to (a) any Customer Data, Customer Materials, or data from a Connected System; (b) the combination of the Services with any product, service, data, or process not provided by Axiad, where the claim would not have arisen but for the combination; (c) modification of the Services by anyone other than Axiad; (d) any use of the Services after Axiad has notified Customer to discontinue use because of an actual or threatened claim; or (e) any Hardware or Third Party Services. If the Services become, or in Axiad's opinion are likely to become, the subject of an Infringement Claim, Axiad may at its option and expense (i) procure the right for Customer to continue using the Services; (ii) modify or replace the Services to be non-infringing while substantially preserving functionality; or (iii) if neither of the foregoing is commercially reasonable or feasible to Axiad, terminate the affected Services upon written notice to Customer and refund any prepaid, unused Fees for the affected Services. This Section 7.1 states Axiad's entire liability and Customer's exclusive remedy for any Infringement Claim.
7.2 Indemnification by Customer. Customer shall defend Axiad, its Affiliates, Related Parties, Third Party Service providers, and suppliers, and their respective officers, directors, employees, and contractors (the "Axiad Indemnitees") against any claim, demand, suit, or proceeding brought by a third party arising out of or relating to (a) any Customer Data, Customer Materials, or data from a Connected System, including any allegation that Axiad's processing of any such data in accordance with this Agreement violates any applicable law or any third party's rights; (b) Customer's or a User's use of the Services in violation of this Agreement, the applicable Product Schedule, or applicable law; (c) Customer's breach of its representations and warranties in Section 5.4 (Connected Systems) or in any Product Schedule regarding notices, consents, or authorizations Customer is required to obtain; or (d) any personal injury, death, or property damage resulting from a User's use of the Services in an unauthorized or unlawful manner; and shall pay any damages and costs finally awarded against any Axiad Indemnitee or agreed in a settlement approved in writing by Customer.
7.3 Procedure. The indemnified party shall (a) promptly notify the indemnifying party in writing of the claim, provided that failure to give prompt written notice relieves the indemnifying party of its obligations only to the extent it is materially prejudiced by the delay; (b) give the indemnifying party sole control of the defense and settlement of the claim, except that the indemnifying party may not settle a claim in a manner that imposes any non-monetary obligation or admission of fault on the indemnified party without its prior written consent, not to be unreasonably withheld, conditioned, or delayed; and (c) provide reasonable cooperation and assistance at the indemnifying party's request and expense. The indemnified party may participate in the defense with counsel of its own choosing at its own expense.
7.4 EXCLUSION OF INDIRECT DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY NOR ITS AFFILIATES, RELATED PARTIES, SUPPLIERS, OR THIRD PARTY SERVICE PROVIDERS WILL BE LIABLE TO THE OTHER PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, RELIANCE, OR COVER DAMAGES, OR FOR ANY LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, OR ANTICIPATED SAVINGS, INTERRUPTION OF USE, LOSS OR CORRUPTION OF DATA, OR COST OF PROCUREMENT OF SUBSTITUTE EQUIPMENT, GOODS, OR SERVICES, ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
7.5 CAP ON LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY'S TOTAL CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ALL ORDER FORMS, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WILL NOT EXCEED THE TOTAL FEES PAID AND PAYABLE BY CUSTOMER UNDER THE APPLICABLE ORDER FORM FOR THE SPECIFIC SERVICE GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATIONS IN THIS SECTION 7.5 ARE CUMULATIVE FOR ALL CLAIMS AND ARE NOT PER INCIDENT.
7.6 EXCEPTIONS. THE EXCLUSIONS AND LIMITATIONS IN SECTIONS 7.4 AND 7.5 DO NOT APPLY TO (A) A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 7.1 AND 7.2; (B) A PARTY'S BREACH OF SECTION 6 (CONFIDENTIALITY) OR, IN THE CASE OF AXIAD, A SECURITY INCIDENT TO THE EXTENT CAUSED BY AXIAD'S BREACH OF INFORMATION SECURITY EXHIBIT OR THE DPA; (C) A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD; (D) A PARTY'S VIOLATION OF APPLICABLE LAW; (E) CUSTOMER'S PAYMENT OBLIGATIONS, INCLUDING ACCELERATED FEES UNDER SECTION 8.3; OR (F) ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW (COLLECTIVELY, "EXCEPTED CLAIMS"). NOTWITHSTANDING THE FOREGOING, EXCEPT FOR CUSTOMER'S PAYMENT OBLIGATIONS AND LIABILITY DESCRIBED IN CLAUSE (C) OR (F), EACH PARTY'S TOTAL CUMULATIVE LIABILITY FOR ALL EXCEPTED CLAIMS WILL NOT EXCEED THREE TIMES (3X) THE TOTAL FEES PAID AND PAYABLE BY CUSTOMER UNDER THE APPLICABLE ORDER FORM FOR THE SPECIFIC SERVICE GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
7.7 Basis of the Bargain. The parties agree that the limitations in this Section 7 reflect a reasonable allocation of risk, are an essential basis of the bargain, and apply notwithstanding the failure of any exclusive remedy. Each Third Party Service provider and supplier that provides any portion of the Services is an intended third-party beneficiary of the disclaimers and limitations in Sections 4 and 7 with respect to the software or services it provides.
8.1 Term; Renewal. This Agreement commences on the Effective Date and continues until all Order Forms have expired or been terminated (the "Term"). Each Order Form states its initial subscription term. Unless the Order Form states otherwise, each Order Form automatically renews for successive renewal terms equal in length to the initial subscription term unless either party gives written notice of non-renewal at least sixty (60) days before the end of the then-current term (notice to Axiad must be sent to: SalesOperations@axiad.com). Axiad may increase Fees for any renewal term by written notice at least sixty (60) days before the end of the then-current term; if Axiad does not give such written notice and the Order Form does not state otherwise, Fees for the renewal term increase by seven percent (7%) over the prior term. Renewal Fees are also adjusted to reflect any change in quantities, Users, or other fee-bearing items.
8.2 Termination for Cause. Either party may terminate this Agreement or any affected Order Form on written notice if the other party (a) materially breaches this Agreement and fails to cure the material breach within thirty (30) days after receiving written notice describing the breach in reasonable detail; or (b) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors that is not dismissed within sixty (60) days.
8.3 Early Termination; Acceleration of Committed Fees. (a) If, before expiration of the then-current subscription term of any Order Form, (a) Customer terminates this Agreement (including termination before Customer has begun using the Services) or the applicable Order Form for any reason other than Axiad's uncured material breach under Section 8.2, or (b) Axiad terminates this Agreement or the applicable Order Form due to Customer's uncured material breach under Section 8.2 (each, an "Early Termination"), then all unpaid subscription Fees committed under the terminated Order Form for the remainder of the committed subscription term shall immediately become due and payable by Customer. Customer shall pay such accelerated Fees to Axiad or the applicable Related Party within thirty (30) days following the effective date of the Early Termination, unless the applicable Order Form requires an earlier payment date.
(b) The parties acknowledge that the subscription commitments under each Order Form are non-cancelable under Section 3.1 and that Early Termination does not relieve Customer of its obligation to pay Fees committed for the applicable subscription term. For clarity, the accelerated Fees constitute unpaid committed subscription Fees previously agreed by Customer under the applicable Order Form and are not a penalty. Accelerated Fees shall be reduced by any subscription Fees already paid for the applicable Term and shall not include Taxes that have not been incurred, assessed, or become due.
8.4 Effect of Termination. On expiration or termination of this Agreement or an Order Form: (a) Customer's rights to access and use the Services terminate and Customer shall immediately cease all use, including any Documentation or software provided in connection with the Services; (b) each party shall return or destroy the other party's Confidential Information in its possession, except as retained under clause (d); (c) for thirty (30) days after the effective date of expiration or termination (the "Export Window"), Axiad will, on Customer's written request, make Customer Data available for export in a commonly used format; (d) after the Export Window, Axiad will delete Customer Data in the Services within ninety (90) days, except for deidentified and aggregated data retained under Section 5.7, Customer Data in routine backups (which will be deleted in the ordinary course of Axiad's backup rotation and remains protected under Section 6 and Information Security Exhibit until deleted), and Customer Data Axiad is required to retain by law; and (e) if Customer terminated the Agreement or an Order Form for Axiad's uncured material breach, Axiad or the Related Party will refund the pro-rata portion of prepaid Fees for Services not provided after the effective date of termination. Except as stated in this Section 8.4 and Section 8.5, Axiad has no obligation to provide transition services or continued access to any data after termination.
8.5 Transition Assistance. On Customer's written request made before or during the Export Window, Axiad will provide reasonable Professional Services to assist Customer in retrieving Customer Data and transitioning from the Services under an SOW at Axiad's then-current rates.
8.6 Survival. Sections 1, 2.6, 2.7, 3, 4.2 through 4.5, 5 (other than the license in Section 5.1 and Customer's rights under Section 5.8), 6, 7, 8.3 through 8.6, and 9, and any provision of a Product Schedule that by its nature should survive, survive expiration or termination of this Agreement.
9.1 Governing Law; Venue. This Agreement is governed by the laws of the State of California, without regard to its conflict-of-laws principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply. The parties consent to the exclusive jurisdiction and venue of the state courts located in Santa Clara County, California and the United States District Court for the Northern District of California and waive any objection to venue or personal jurisdiction in those courts, except that either party may seek preliminary injunctive or other equitable relief in any court of competent jurisdiction. Except for claims relating to payment or to infringement or misuse of a party's intellectual property, no claim under this Agreement may be brought more than one (1) year after the claim accrued.
9.2 Export; Government Use. Each party shall comply with applicable export control and sanctions laws. Customer represents that it and its Users are not located in, or nationals of, a country or territory subject to comprehensive U.S. sanctions, and are not on any U.S. government restricted-party list. If Customer is a U.S. government entity, the Services and Documentation are "commercial computer software" and "commercial computer software documentation" under FAR 12.212 and DFARS 227.7202 and are provided with only those rights granted to all other customers under this Agreement.
9.3 Assignment. Neither party may assign this Agreement or any Order Form without the other party's prior written consent, not to be unreasonably withheld, delayed, or conditioned, except that either party may assign this Agreement or any Order Form in its entirety without consent to an Affiliate or to a successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided the assignee assumes all obligations under this Agreement and, in the case of an assignment by Customer, the assignee is not a competitor of Axiad. Any attempted assignment in violation of this Section is void. This Agreement binds and benefits the parties and their permitted successors and assigns.
9.4 Severability; Waiver. If any provision of this Agreement or any Order Form is held invalid or unenforceable, it will be construed, limited, or severed to the extent required to eliminate the invalidity, and the remaining provisions remain in full force. A party's failure or delay in exercising any right is not a waiver of it, and a waiver on one occasion is not a waiver on any other. Waivers must be in writing and signed by the waiving party.
9.5 Force Majeure. Neither party is liable for any delay or failure to perform (other than payment obligations) caused by circumstances beyond its reasonable control, including, without limitation, acts of God, acts of government, flood, fire, earthquake, civil unrest, acts of terror, epidemic, pandemic, quarantine, strikes or labor disputes (other than those involving the affected party's own personnel), failures of Internet or telecommunications services or of infrastructure not within the party's control, and denial-of-service attacks. Economic hardship is not a force majeure event. The affected party shall give prompt written notice (email suffices) describing the circumstances and shall use commercially reasonable efforts to resume performance. If a force majeure event prevents Axiad from providing the Services for more than thirty (30) consecutive days, Customer may terminate the affected Order Form on written notice and receive a pro-rata refund of prepaid, unused Fees.
9.6 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship, and neither party may bind the other or make representations on its behalf.
9.7 Notices. Routine operational communications may be sent by email or through the Services. Notices of breach, termination, indemnification claims, or other legal matters must be in writing, in English, and delivered by nationally recognized overnight courier or by email with confirmation of receipt to the addresses stated in the applicable Order Form (for Axiad, a copy of any written notice must also be sent to: legal@axiad.com) or such other address as a party designates in writing. Notices are effective on receipt.
9.8 Entire Agreement; Order of Precedence. This Agreement, including the Product Schedules, Exhibits, the DPA, and each Order Form and SOW, is the entire agreement between the parties regarding its subject matter and supersedes all prior agreements, proposals, marketing materials, and representations, written or oral, including any prior Axiad Cloud Services Agreement, Axiad Terms of Use, Axiad Mesh Terms of Use, and/or Axiad Confirm addendum, as to Services ordered on or after the Effective Date. Terms in any Customer purchase order or other Customer ordering document are void. In the event of conflict, the following order of precedence applies: (a) the DPA, solely with respect to processing of personal information; (b) the applicable Order Form or SOW, but only where it expressly states that it overrides a specific provision of this Agreement; (c) the applicable Product Schedule; (d) these General Terms; (e) the Exhibits; and (f) the Documentation. There is no presumption against the drafting party, headings are for convenience only, and "including" means "including without limitation."
9.9 Amendment. This Agreement may be amended only by a written instrument signed by authorized representatives of both parties. Axiad may update Information Security Exhibit and the sub-processor list available at https://engage.axiad.com/sub-processors from time to time, provided the update does not materially reduce the overall security of the Services during the then-current term.
9.10 Modifications. Axiad may modify this Agreement, the Product Schedules, the SLA, and Information Security Exhibit from time to time by posting the revised version at https://engage.axiad.com/terms-of-use (or the corresponding URL) and updating the "Last Updated" date. Modifications take effect on the start of Customer's next renewal term, except that Axiad may make modifications effective on posting where they (a) do not materially and adversely affect Customer's rights or Axiad's obligations during the then-current term, or (b) are required by applicable law. Axiad will provide at least thirty (30) days' notice (by email or in-Service notice) of any modification that materially and adversely affects Customer or that materially changes Sections 7 or 9.1. Customer's continued use of the Services after a modification takes effect constitutes acceptance. No other modification of this Agreement is effective unless in a writing signed by both parties.
9.11 Counterparts; Electronic Acceptance. Order Forms may be executed in counterparts and by electronic signature, each of which is deemed an original. Customer's acceptance of this Agreement and/or any Order Form by electronic means has the same legal effect as a handwritten signature.
The following documents are incorporated into this Agreement by reference and form part of it. Each is available at the URL below and Axiad will provide a copy on request. A Product Schedule applies only to the Services Customer has ordered. These documents are identical in substance to the corresponding Schedules and Exhibits of the Axiad Cloud Services Agreement.
The Product Schedule for Axiad Conductor, Axiad Mesh, and Axiad Confirm, Information Security Exhibit, Service Level Agreement, and Data Processing Addendum are references to the documents listed above. Axiad may update these documents in accordance with Section 9.9 and, in the case of the SLA and Information Security Exhibit, subject to the limits stated in those documents.
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