Terms of Service
(Revised November 26, 2018)
Welcome & Navigation
Welcome to Axial. We appreciate your interest in the service. It is important for you to read and understand the following terms and conditions.
- General Terms and Conditions
- Definition of Member Accounts and Users
- Uses of the Platform and Key Limitations
- Eligibility to Use Axial
- Your Promises of Conduct (Acceptable Use)
- Pricing, Payments & Billing
- Intellectual Property and Copyright
- Key Legal Points
- Contact Info
General Terms and Conditions
All use of the Platform is subject to the ToS and, in some cases, a Membership Agreement (defined below) that you may have executed with us. By accessing and using the Platform, you acknowledge, accept, and agree to the ToS and all other terms, conditions, procedures and policies that may be published from time to time on the Site by us, each of which is incorporated by reference.
Definition of Member Accounts and Users
The following Terms of Service covers two types of entities:
- A “Member Account” is defined as companies, entities or individuals using Axial to market or source private capital market transaction opportunities;
- A “User” is defined as an individual who uses the Platform as part of a Member Account and take action in the name of the Member Account;
A Member Account may have one or more Users.
Uses of the Platform and Key Limitations
The Platform is designed for officers and owners of private companies, duly authorized M&A professionals, and investment professionals to find, connect, and be found by one another for the purposes of business development, originating and managing investment or acquisition opportunities, and identifying and engaging with relevant capital partners. Member Accounts and Users of the Platform use a variety of tools to implement such processes, including data room and document hosting tools, deal communication and messaging tools, and a variety of reporting and analytic tools. Axial is not involved in the actual transaction between buyers and sellers, and does not render investment or legal advice in connection therewith.
None of the information submitted on the Platform constitutes a solicitation, offer, opinion, or recommendation by Axial to buy or sell any securities or other financial instruments or to provide legal, tax, accounting, or investment advice or services regarding the suitability or profitability of any security of any kind, investment or transaction. Axial has not made any recommendations regarding the merit of any company identified on the Platform, made any recommendation regarding the purchase or sale of any security, or endorsed or sponsored any company identified on the Platform. For that reason all users of the Platform agree to be responsible for their own due diligence and the legal and regulatory compliance of any transaction they enter into, and Axial makes no representation or assurance about such compliance. As a user of the Platform, you are required to provide true and accurate information about your businesses or the business of your clients, and to update and maintain such information, but Axial cannot and does not confirm the accuracy of information provided. The information and materials made available through the Platform may contain typographical errors or inaccuracies. In addition, Axial does not control the information provided by other users that is made available through the Platform.
Eligibility to Use Axial
Axial reserves the right to refuse service, terminate relationships, and/or cancel orders in its discretion.
In order to create a Member Account or be a User of the Platform, you represent and warrant that you are at least 13 years of age. If you are under age 13, you may not, under any circumstances or for any reason, use the Platform. We may, in our sole discretion, refuse to offer the Platform to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that the ToS are in compliance with all laws, rules and regulations applicable to you and the right to access the Platform is revoked where the ToS or use of the Platform is prohibited or to the extent offering, sale or provision of the Platform conflicts with any applicable law, rule or regulation. Further, the Platform is offered only for your use, and not for the use or benefit of any third party.
Accredited Investor Certification
In order to participate in the Platform as an investor or lender, you must be an “Accredited Investor” within the meaning of Rule 501 of Regulation D (“Rule 501”) under the Securities Act of 1933, as amended (the “Act”) and you hereby represent and warrant that you are an Accredited Investor within the meaning of Rule 501, as presently in effect. The federal securities laws define Accredited Investor in Rule 501 to include the following categories of investors (among others):
- a corporation, partnership, or charitable organization (within the meaning of section 501(c)(3) of the Internal Revenue Code), not formed for the specific purpose of acquiring the securities offered, with total assets exceeding $5 million;
- an entity in which all the equity owners are accredited investors;
- a natural person who has individual net worth, or joint net worth with the person’s spouse, that exceeds $1 million at the time of such person’s purchase of the securities, excluding the value of the primary residence of such person;
- a natural person with individual income exceeding $200,000 in each of the two most recent years or joint income with a spouse exceeding $300,000 for each of those years and a reasonable expectation of reaching the same income level in the current year;
- a bank, savings and loan association, insurance company, registered investment company, registered broker or dealer, business development company, or a licensed Small Business Investment Company (as such terms are described in Rule 501);
- an employee benefit plan, within the meaning of the Employee Retirement Income Security Act of 1974, if a bank, savings and loan association, insurance company, or registered investment adviser makes the investment decisions, or if the plan has total assets in excess of $5 million or if such plan is a self-directed plan, with investment decisions made solely by persons that are accredited investors;
- a director, executive officer, or general partner of the issuer of the securities being offered or sold or any director, executive officer or general partner of a general partner of that issuer; or
- a trust with total assets in excess of $5 million, not specifically formed to acquire the securities offered, whose purchases are directed by a sophisticated person (as such term is described in Rule 501).
Your Promises of Conduct
When signing up for the Platform and creating a Member Account or User account on the Platform, you must provide accurate and complete information and keep your Member Account or User information updated. You shall not:
- select or use as a username a name of another person with the intent to impersonate that person;
- use as a username a name subject to any rights of a person other than you without appropriate authorization;
- use, as a username, a name that is otherwise offensive, vulgar or obscene.
You are solely responsible for the activity that occurs on your Member Account, and for keeping your User password secure. You may never use another person’s User account or registration information for the Platform without permission. You must notify us immediately of any change in your eligibility to use the Platform (including any changes to or revocation of any licenses from state authorities), breach of security or unauthorized use of your Member Account or User account. You should never publish, distribute or post login information for your Member Account or User account. You shall have the ability to delete your Member Account or User account, either directly or through a request made to one of our employees or affiliates.
By accepting these ToS and using the Platform, you agree not to:
- Enter any false information about a company or person;
- Misrepresent your relationship to a deal or transaction; or
- Engage in any fraudulent activity of any kind.
If Axial permits you to input information into the Platform, you may not (and may not permit any third party to) input any information or content that:
- you know is false, misleading, untruthful or inaccurate;
- is promotional in nature, including solicitations for funds or businesses, without the prior written authorization of Axial;
- constitutes junk mail, spam, chain letters, pyramid schemes or the like;
- is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, deceptive, fraudulent, invasive of another’s privacy, offensive, profane, hateful or is racially, ethnically or otherwise objectionable as determined by us in our sole discretion, or otherwise violates the legal rights of others;
- you do not have the right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- infringes any patent, trademark, trade secret, copyright, right of publicity or other proprietary rights of any party or violates any law or contractual duty;
- impersonates any person or entity, including any of our employees or representatives; or contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, gain access to or limit the functionality of any computer software or hardware, or telecommunications equipment.
You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Platform or any activities conducted on the Platform; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Platform (or other accounts, computer systems or networks connected to the Services); (iv) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the website; (v) harvest or scrape any Content from the Platform; or (vi) otherwise take any action in violation of our guidelines and policies.
You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Platform (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Platform, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce the ToS, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public.
Axial reserves the right to edit, restrict or remove any content you provide for any reason or no reason at any time.
Special Terms for Buy-side M&A Advisors
Investment banks and M&A advisory firms may only use Axial to originate deal opportunities (i.e. receive teasers) on behalf of buy-side clients with whom they have a formal retainer arrangement. Teasers received on behalf these retainer clients may not be shared with non-retainer companies.
Pricing, Payments & Billing
Subject to a Membership Agreement with Axial, which takes precedence, the following pricing structure applies to your use of the Platform. Specific pricing shall be established between Axial and the Member Account as part of the Member Account acceptance process.
Axial charges Member Accounts who wish to source and receive targeted introductions to investment, lending, and acquisition opportunities (collectively defined as “Deal Opportunity” or “Deal Opportunities”). Axial does not charge Member Accounts for the tools necessary to research and privately share Deal Opportunities with other Member Accounts for the purposes of seeking an acquirer, investor, or lender.
Axial charges one-time or annual membership fees for a Member Account to be able to originate Deal Opportunities on the Platform. The term of the Annual Membership begins upon the digital acceptance of the ToS by the first User of a Member Account (the “Start Date”).
For Member Accounts with annual Membership Fees, the Member Account will be billed every 12 months from the Start Date unless a Member Account provides at least thirty (30) days written notice via email to Axial (email: email@example.com) of its intention not to renew its Annual Membership Fee. Axial will notify the primary User of your Member Account at least sixty (60) days in advance of the renewal date.
Per Deal Fees
Certain Member Accounts are billed a fee for each Deal Opportunity sourced on the Platform (“Per Deal Fees”).
A Deal Opportunity is considered sourced if another Axial User has digitally shared the Deal Opportunity teaser with your Member Account via the Axial Platform. Axial Users will only be able to share a Deal Opportunity with you when the Deal Opportunity’s transaction details successfully match the criteria set by an active sourcing project created by your Member Account. If you believe that you should not have received a deal because it was improperly classified or matched, you can notify us by email at firstname.lastname@example.org. If, after review, Axial agrees that you should not have received the Deal Opportunity, Axial will issue you a credit for that improperly matched Deal Opportunity.
Unless otherwise specified, Axial will bill your Member Account monthly for Per Deal Fees for any Deal Opportunities received in the previous calendar month.
Member Accounts have the ability to pay up-front for a set number of Deal Opportunities at a discount (“Pre-Paid Deal Opportunities”). Once the number of Pre-Paid Deal Opportunities has been reached, and assuming the Member Account does not purchase additional Pre-Paid Deal Opportunities, then Axial will bill the Member Account monthly for additional Deal Opportunities received. Axial will notify your Member Account when you have used up your Pre-Paid Deal Opportunities.
Member Accounts have the ability, in the Platform, to set a limit on the number of Deal Opportunities received each month. Furthermore, if your Member Account has no active deal sourcing projects, your Member Account will not be eligible to receive Deal Opportunities from other Members.
Where Success Fees Apply
In addition to Membership Fees and Per Deal Fees, any Member Account which sources Deal Opportunities on the Platform shall pay to Axial a success fee (the “Success Fee”) on any successfully consummated (A) debt deal or (B) Change of Control deal discovered or sourced through the Platform (a “Completed Transaction”, defined below).
A Completed Transaction will be considered as having been discovered or sourced via Axial if the Member Account first discovers the Deal Opportunity through Axial, regardless of any historic relationship between the Member Account and the person or organization bringing the Deal Opportunity to market.
Requirement to Disclose
You agree to notify Axial, via the Platform or via email (email: email@example.com or via your Axial Account Manager) when any of the following events have occurred:
- You or your firm / company have submitted a non-binding letter of intent for a Deal Opportunity sourced or discovered via Axial
- you or your firm / company have executed a non-binding letter of intent or equivalent for a Deal Opportunity sourced or discovered via Axial
- you or your firm / company have closed a transaction sourced or discovered via Axial.
You agree to keep Axial informed from time to time of the estimated closing timeline for a Deal Opportunity discovered via Axial. Disclosing the identity of the seller is not required.
Member Accounts who fail to adhere to the above disclosure requirements lose eligibility for the Success Fee Bonus (detailed below), and may be suspended, flagged, or removed from the Axial platform at Axial’s sole discretion. For the avoidance of doubt, all fees owed to Axial shall remain in full effect.
Success Fee Credit
Axial offers membership rewards to its Members. Members who close transactions sourced via the platform are eligible to receive “Success Fee Credits” upon the timely (within 7 days of the closing) and accurate payment of a Success Fee associated with a Completed Transaction sourced via Axial.
Axial grants Success Fee Credits in two forms:
- Reward 1: Axial reduces the Success Fee it is owed by the lesser of 50% of the Success Fee or the Member’s historical per-deal fees incurred (which resets to zero each time the Member pays a Success Fee)
- Reward 2: Axial will grant the Member 5% of the value of the Success Fee in credits to be used for future Per Deal sourcing fees, Axial Member events, or other Axial paid services. Success Fee Credits are not subject to any expiration date, provided that the Member is in good standing, AND that the Member has not deleted or deactivated their Member Account.
Where Success Fees Do Not Apply
If the Member Account has originated a Deal Opportunity through another source prior to receiving the Deal Opportunity via Axial, the Success Fee does not apply, as long as you notify Axial in writing (email: Member.Notification@axial.net or firstname.lastname@example.org) within 7 days of receiving the Deal Opportunity through the Axial Platform and provide Axial with reasonable evidence (for example, a signed and dated NDA) that demonstrates that you first discovered the deal outside of the Axial Platform. For the avoidance of doubt, if you discover a Deal Opportunity through the Axial Platform, connect with the Deal Opportunity counterparty offline and then close the transaction, the Success Fee is still owed to Axial.
Success Fee Rates
The Success Fee payable is equal to the Fee Rate percentage, which is specified in your Membership Agreement, of the aggregate Transaction Consideration (as defined below) involved in any Completed Transaction consummated during the term of your membership and the eighteen (18) month period following any expiration or termination of your Member Account.
“Transaction Consideration” shall mean as follows:
(A) in the case of a Change of Control transaction, the total value of the acquired equity or assets, whether paid for in cash or stock or any other non-cash consideration, and including any earn-out provision that might be paid out within three (3) years of the transaction close date (as defined below). “Change of Control” shall mean any tender offer, sale, merger, combination, consolidation, transfer, asset sale, sale of a controlling interest in assets, equity or business of a business or entity or any other business combination.
(B) In the case of the deployment of debt, the total amount of capital agreed to be deployed, regardless of the timing of actual cash distributions (including capital deployed after termination of your membership).
A transaction will be considered a “Completed Transaction” upon the initial payment of cash or other consideration by the acquirer or lender or any amounts are made available to be deployed from lender (such date being the “transaction close date”) except as it relates to any contingent or deferred payments related to an earn out. In the event of an earn out, the part of the Transaction Consideration allocated to the earn out provision shall be deemed “Completed”, and any Success Fee associated with such portion of the Transaction Consideration shall only become payable, at the time the earn out is funded or paid (whether in cash or other assets).
Any Success Fees due shall be paid in full by wire transfer or other immediately available funds and are due within 7 days of the transaction close date.
Past due amounts shall bear a late payment charge, until paid, at the rate of 2% per month (24% per annum) or the maximum amount permitted by law, whichever is less. All payment obligations are non-cancelable and fees paid are non-refundable.
Subject to Change
Membership Fees and Per Deal Fees are subject to change at any time by Axial. Should either fee amounts change for your Member Account, the primary contact User of your Member Account will receive an email notification at least 30 days in advance.
Payments & Billing
In order to process a Member Account’s Membership Fees and any Per Deal Fees, we may use a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your Account on the Platform (your “Billing Account”). The processing of payments will be subject to any terms, conditions and privacy policies of such a Payment Processor in addition to the ToS. We are not responsible for error by a Payment Processor. You authorize us to charge, or have the Payment Processor charge, your chosen payment provider (your “Payment Method”). You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment.
If we, through a Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
Intellectual Property and Copyright.
The contents of the Platform and any products or services provided or sold by Axial, including the Platform’s look and feel, text, graphics, logos, button icons, images, audio and video clips (if any) and software, as well as the compilation of businesses, advisors, investors and lenders listed on the Platform (“Content”), are the property of Axial or its content suppliers, and are subject to the copyright or other intellectual property rights of Axial and to the terms of licenses held by Axial. Such intellectual property is protected by federal and state law.
Subject to the ToS, we grant each user of the Platform a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of accessing and using the Platform. Any unauthorized use, reproduction, modification, distribution, transmission, republication, display or performance of the Content and software on this Platform, or of any products or services sold by Axial, is strictly prohibited. You may copy information from the Platform only as strictly necessary for your own use of the Platform. Otherwise, no portion of the Platform may be reproduced, duplicated, copied, sold, resold, licensed, rented or otherwise exploited for any commercial purpose that is not expressly permitted by Axial. The commercial use or public dissemination of any information and data gathered from Axial is strictly prohibited, unless specifically authorized in writing. Any violation of the foregoing may subject you to compensatory and punitive damages, and shall specifically also entitle Axial to equitable relief, in addition to any other available remedies.
All Content added, created, uploaded, submitted, distributed, or posted to the Platform by Users (collectively, “User Content”), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent and warrant that all User Content provided by you is accurate, complete, up-to-date, in compliance with all applicable laws, rules and regulations and you have all rights to provide the User Content and grant the licenses set forth below, to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
By submitting any User Content to us, you grant Axial a perpetual, worldwide, royalty-free, irrevocable, non-exclusive, sublicensable and transferable right to use, reproduce, modify, adapt, aggregate, publish, create derivative works of, display, perform, distribute and otherwise fully exploit such User Content, in any form or medium known or later developed (including, without limitation, third party websites and feeds), in furtherance of our (and our successors’ and assigns’) businesses, the terms of the ToS and the actions and transactions contemplated hereby, including after the termination of your Account or the Platform.
You also hereby do and shall grant each user of the website and/or the Platform a non-exclusive, perpetual license to access your User Content through the website and/or the Platform, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Content, including after the termination of your Account or the Platform. For clarity, the foregoing license grants to us and our users does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You agree that you will abide by and maintain all and will not and will not allow others to delete or alter, information, restrictions, author attributes or copyright notices contained in any Content accessed through the Platform. Nothing on the Platform or elsewhere should be construed to grant any license or right to use, implied or otherwise, any mark displayed on the Platform without the written permission of Axial or the third party owner of the mark.
Availability of Content
We do not guarantee that any Content will be made available on the Site or through the Services. Axial reserves the right, in its sole discretion, to (i) remove, edit or modify any Content, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities that such Content infringes or appears to infringe on intellectual property rights owned by others or if we are concerned that you may have violated the ToS), for no reason at all and (ii) to remove or block any Content from the Platform.
If you believe that any material contained in the Platform infringes your intellectual property, you should notify Axial of the alleged infringement in accordance with the following procedure: Send any notification of claimed copyright infringement to email@example.com. To be effective, the notification must be in writing and include the following information: physical or electronic signature of the owner or authorized agent of the owner of the allegedly infringed work; identification of the allegedly infringed work; identification of the material that is claimed to be infringing and reasonably sufficient information for Axial to locate the material; contact information of the notifying party, such as address, telephone number and email; a statement that the notifying party has a good faith belief that the use of the material in the manner complained of is not authorized by the owner of the allegedly infringed work, its agent or the law; and a statement, under penalty of perjury that the information in the notification is accurate and the notifying party is the owner or authorized agent of the allegedly infringed work.
Third Party Content
Certain portions of the Platform, including, without limitation, information on certain private companies, may contain unedited or third party content. All postings, messages, text, images, links to third-party websites or other materials published or otherwise made available through this section (the “Third Party Content”) are the sole responsibility of the person(s) who originated such Third Party Content and Axial may not monitor, does not control and does not investigate or validate such Third Party Content; provided that Axial reserves the right at all times (but will not have an obligation) to remove any Third Party Content. By using this Third Party Content, you agree to not rely on the Third Party Content and understand that you may be exposed to Third Party Content that is, without limitation, inaccurate, inappropriate, misleading, unlawful, offensive or otherwise objectionable, and that Axial makes no representations or warranties regarding the Third Party Content and is not responsible or liable in any manner for the Third Party Content or the conduct, whether online or offline, of any user. The Third Party Content does not constitute legal or financial advice and must not be used in the place of legal counsel or financial due diligence. You should independently evaluate and verify all Third Party Content.
Key Legal Points
We may terminate your access to all or any part of the Platform at any time. All provisions of the ToS which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
If service is terminated or suspended by Axial due to breach by you or any User of a Member Account, including for non-payment, then you still owe, and must pay to Axial, the entire amount payable for such term, and any past due amounts will accrue interest.
Axial may assign this Agreement and all rights and obligations contained herein to any successor in interest without your consent.
Limitations of Liability
Any material downloaded, accessed or otherwise obtained through the Platform is obtained at your own discretion and risk, and you will be solely responsible for any damage to your computer system or loss of data that results therefrom. EXCEPT AS EXPRESSLY SET FORTH HEREIN, AXIAL AND ALL OF ITS THIRD-PARTY LICENSORS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY (I) WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE AS TO THE PLATFORM, INCLUDING THE CONTENT, INFORMATION, DATA, SOFTWARE, OR PRODUCTS CONTAINED THEREIN, OR THE RESULTS OBTAINED BY THEIR USE OR AS TO THE PERFORMANCE THEREOF, (II) WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, AND (III) WARRANTIES OR CONDITIONS OF UNINTERRUPTED OR ERROR-FREE ACCESS TO OR USE OF THE PLATFORM. AXIAL PROVIDES THE PLATFORM AND ALL COMPONENTS THEREOF ARE PROVIDED ON AN “AS IS” BASIS AND YOUR USE OF THE PLATFORM IS AT YOUR OWN RISK. AXIAL MAKES NO GUARANTEES OR WARRANTIES OF ANY KIND AS TO THE SECURITY, ADEQUACY, COMPLETENESS, SUFFICIENCY, TIMELINESS OR ACCURACY OF ANY CONTENT OR MATERIAL AVAILABLE IN OR THROUGH THE PLATFORM, THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
YOU HEREBY AGREE THAT ANY MONETARY CLAIMS OF ANY KIND ASSESSED AGAINST AXIAL OR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS ARISING OUT OF OR RELATING TO THE USE OF THE PLATFORM SHALL NOT EXCEED (IN AGGREGATE) OF THE GREATER OF (I) THE TOTAL AMOUNT YOU (OR ANY OTHER USER) PAID TO AXIAL FOR THE PLATFORM DURING THE PREVIOUS TWELVE (12) MONTHS OR (II) $500. IN NO EVENT SHALL AXIAL OR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS BE LIABLE TO YOU, OR TO ANY THIRD PARTY, FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, COMPENSATORY OR INDIRECT DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING), EVEN IF ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE. THIS LIMITATION ON LIABILITY INCLUDES, BUT IS NOT LIMITED TO, THE TRANSMISSION OF ANY VIRUSES WHICH MAY INFECT YOUR EQUIPMENT, FAILURE OF MECHANICAL OR ELECTRONIC EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS (E.G., YOU CANNOT ACCESS YOUR INTERNET PROVIDER), UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, STRIKES OR OTHER LABOR PROBLEMS OR ANY FORCE MAJEURE. AXIAL CANNOT AND DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE PLATFORM.
You agree to indemnify and hold harmless Axial, our affiliates and each of our and their respective officers, directors, agents, and employees, from and against any suit, action, claim, demand, penalty or loss, including reasonable attorneys’ fees, made by or resulting from any third party due to or arising out of your (or any third party using your Account or identity in the Platform) use or misuse of the Platform, breach of the ToS or the materials it incorporates by reference, or violation of any law, regulation, order or other legal mandate or the rights of a third party. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
Choice of Law
You will resolve any claim, cause of action or dispute (together a “claim”) you have with Axial arising out of or relating to the Platform or the ToS or your Membership Agreement exclusively in New York County, New York. The laws of the State of New York will govern the ToS and your Membership Agreement, as well as any claim that may arise between you and Axial, without regard to conflict of law principles. In any dispute arising under the ToS or your Membership Agreement, the prevailing party will be entitled to reasonable attorneys’ fees and expenses.
Arbitration and Class Action Waiver
YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THE TOS, YOUR USE OF THE PLATFORM, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION IN NEW YORK, NEW YORK UNDER THE STREAMLINED ARBITRATION RULES AND PROCEDURES (“RULES”) OF JAMS THEN IN EFFECT, BY ONE COMMERCIAL ARBITRATOR WITH SUBSTANTIAL EXPERIENCE IN RESOLVING INTELLECTUAL PROPERTY AND COMMERCIAL CONTRACT DISPUTES, WHO SHALL BE SELECTED FROM THE APPROPRIATE LIST OF JAMS ARBITRATORS IN ACCORDANCE WITH SUCH RULES, AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.
As an alternative, you may bring your claim in your local “small claims” court, if permitted by that small claims court’s rules and if within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring claims only on your own behalf. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s Account, if we are a party to the proceeding.
This section will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of Platform or the ToS must be filed within one (1) year after such claim of action arose or be forever banned.
If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this section will be null and void. This section will survive the termination of your relationship with us.
Axial uses email to communicate with Users. You hereby authorize and agree that Axial may communicate with you via email and you consent to receiving and giving any notice required under the ToS or any other agreement with Axial via email. Axial will use reasonable efforts to honor any request you may have to opt out from receiving emails, but under no circumstance will Axial have any liability for sending any email to you or to any of its customers. Electronic notices should be sent to Member.Notification@axial.net.
Use of Member Names
When you announce closed transactions via your website or press release or other broad disclosure methods, Axial may disseminate its own release to its constituents indicating your use of the Axial Platform in association with said transaction. Axial may add your entity’s name to Axial’s member roster, which is professionally presented from time to time on its website and in marketing materials.
The ToS sets forth the entire understanding and agreement between the parties with respect to the subject matter herein (excluding the terms and conditions of any Membership Agreement you may have entered into separately with Axial). We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation. You may not assign the ToS or Membership Agreement, or assign, transfer or sublicense your rights, if any, in the Platform without our prior written consent, which will not be unreasonably withheld or delayed. We may assign, transfer or delegate any of our rights and obligations hereunder without consent. A failure to act with respect to a breach by you or others does not waive Axial’s right to act with respect to subsequent or similar breaches. In the event that any provision or any portion of any provision of the ToS or your Membership Agreement shall be held to be void or unenforceable, the remaining provisions of the ToS and your Membership Agreement (and the balance of any provisions held void or unenforceable in part only) shall continue in full force and effect. If you do not agree with any part of these terms and conditions, or you have a dispute or claim against Axial or its supplier or affiliates with respect to the ToS or your Membership Agreement you should immediately refrain from using the Platform. No agency, partnership, joint venture, or employment relationship is created as a result of the ToS or your Membership Agreement and neither party has any authority of any kind to bind the other in any respect.
You may contact us at firstname.lastname@example.org or at the following address:
Axial I Attn: Axial Legal
443 Park Avenue South, 8th Floor, New York, New York 10016
Effective Date of ToS: November 26, 2018