GENERAL TERMS AND CONDITIONS
Please read carefully: Axilion licenses the software and other Licensed Materials only on the condition that Licensee accepts all of the terms contained or referenced in these General Terms.
By selecting the “I Accept” button or other mechanism designed to acknowledge agreement to the terms of an electronic copy of these General Terms, or by installing, downloading, accessing, or otherwise copying or using all or any portion of the Licensed Materials, you acknowledge and agree that (i) you have read and agree to these General Terms and (ii) the terms of these General Terms apply to all Licensed Materials other than those subject to the applicable Order Form.
You acknowledge and agree that (i) you accept these General Terms on behalf of the entity for which you are authorized to act and acknowledge that such entity is legally bound by these General Terms (and you agree to act in a manner consistent with these General Terms) or, if there is no such entity for which you are authorized to act, you accept these General Terms on behalf of yourself as an individual and acknowledge that you are legally bound by these General Terms, and (ii) you represent and warrant that you have the right, power and authority to act on behalf of and bind such entity (if any) or yourself. You may not accept these General Terms on behalf of another entity unless you are an employee or other agent of such other entity with the right, power and authority to act on behalf of such other entity.
If Licensee is unwilling to accept these General Terms, or you do not have the right, power and authority to act on behalf of and bind such entity, do not select the “I Accept” button or other mechanism designed to acknowledge agreement, and do not install, download, access, or otherwise copy or use all or any portion of the Licensed Materials.
The words “Axilion”, “Licensed Materials”, “Licensee”, “General Terms” and other capitalized terms used in these General Terms are defined terms. The definitions can be found in Exhibit A (if the terms are not defined in the main body of the General Terms).
1. License
1.1. License Grant. Subject to and conditioned on Licensee’s continuous compliance with these General Terms, the Order Form and payment of the applicable fees, Axilion grants Licensee a nonexclusive, nonsublicensable, nontransferable, limited license to install and Access the Licensed Materials, in each case solely (a) in the Territory, (b) within the scope of the license specified in the applicable Order Form, and (c) in accordance with the terms of these General Terms and the Order Form.
1.2. Other Materials. If Axilion provides or makes available to Licensee any additional materials associated with the Licensed Materials, including any corrections, patches, service packs, updates or upgrades to, or new versions of, the Licensed Materials (including Upgrades) for the Licensed Materials, such additional materials will be subject to the same terms (including, without limitation, the terms of these General Terms) as the Licensed Materials to which such additional materials apply. In no event will the foregoing result in any rights with respect to Excluded Materials.
1.3. Authorized Users. Licensee may permit the Licensed Materials to be installed and/or Accessed only by authorized employees, contractors, agents or other representative provided that each of such persons shall individually register as authorized users on Axilion’s website and undertake that any such installation or Access will be subject by these General Terms and the Order Form
(the “Authorized Users”). Licensee will be responsible for compliance with these General Terms, the Order Form and the ACTE (Axilion Certified Traffic Engineer) terms by the Authorized User any other persons who may have Access to the Licensed Materials through Licensee (whether or not such Access is authorized by Axilion or within the scope of the License).
1.4. Third-Party Licensed Materials. The Licensed Materials may contain or be accompanied by third-party software, data or other materials that are subject to and provided in accordance with terms that are in addition to or different from the terms set forth in these General Terms and/or the Order Form. Such terms may be included or referenced in or with such third-party software, data or other materials specified by Axilion (as may be obtained by request to Axilion). Licensee agrees to comply with such terms. In addition, Licensee will take sole responsibility for obtaining and complying with any licenses that may be necessary to use third-party software, data or other materials that Licensee uses or obtains for use in conjunction with the Licensed Materials. Licensee acknowledges and agrees that Axilion has no responsibility for, and makes no representations or warranties regarding, such third-party software, data or other materials or Licensee’s use of such third-party software, data or other materials.
1.5. Services. Axilion may provide, and Licensee may elect to receive or benefit from, certain Services from time to time. Any Services are subject to Axilion’s terms therefor, which terms are set forth in the applicable Services Terms. Licensee agrees that if it requests, accepts, or makes use of any Services, Licensee will be bound by such terms, as they may be modified from time to time in accordance with the applicable Services Terms (and such terms, as so modified from time to time, are a part of and incorporated by reference into these General Terms), and Licensee agrees to comply with such terms. Licensee acknowledges that Axilion may require a further acceptance of such terms as a condition to providing Services.
1.6. Nature of Licenses. Licensee acknowledges and agrees that when Licensee acquires a license of Licensed Materials, Licensee’s acquisition is neither contingent on the delivery of any future features or functionality nor subject to any public or other comments (oral, written or otherwise) made by Axilion regarding future features or functionality.
2. License Limitations; Prohibitions
2.1. Limitations and Exclusions.
2.1.1. No License Granted; Unauthorized Activities. The parties acknowledge and agree that, notwithstanding anything to the contrary in these General Terms, no license is granted (whether expressly, by implication or otherwise) under these General Terms (and these General Terms expressly prohibit and exclude any right) (a) to Excluded Materials, (b) to any Licensed Materials that Licensee did not acquire lawfully or that Licensee acquired in violation of or in a manner inconsistent with these General Terms, (c) for installation of or Access to the Licensed Materials beyond the applicable license term or outside the scope of the specific license, (d) to modify or create any derivative works from the Licensed Materials or any part thereof, (e) to distribute, rent, loan, lease, sell, sublicense, transfer or otherwise provide all or any portion of the Licensed Materials to any person or entity except as expressly set forth in these General Terms or as expressly authorized in writing by Axilion under an Order Form or otherwise, (f) to provide or make available any features or functionality of the Licensed Materials to any person or entity (other than to and for the
benefit of Licensee itself for the purpose specified in the applicable License), whether or not over a network and whether or not on a hosted basis, (g) to remove, alter or obscure any proprietary notices, labels or marks in the Licensed Materials, (h) to decompile, disassemble or otherwise reverse engineer the Licensed Materials, or (i) to translate, adapt, arrange, or create derivative works based on, or otherwise modify the Licensed Materials for any purpose.
2.1.2. Licensed Materials as a Single Product. The Licensed Materials are licensed to Licensee as a single product and the applicable components may not be separated for installation or Access.
2.1.3. Territory. Except as otherwise authorized in writing by Axilion, the license granted in these General Terms is granted for use solely for the benefit of Licensee within the Territory as detailed in the applicable Order Form. Nothing in these General Terms permits Licensee (including, without limitation, any one on Licensee’s behalf in accordance with the term herein) to install or Access the Licensed Materials outside of the country in which the Territory is located.
2.1.4. Effect of Unauthorized Use. Licensee will not engage in, and will not permit or assist any third party to engage in any of the uses or activities prohibited (or any uses or activities inconsistent with the limitations described) in this Section 2.1 (Limitations and Exclusions) (collectively, “Unauthorized Uses”). Any such Unauthorized Use, and any installation of or Access to the Licensed Materials provided under these General Terms, outside of the scope of the applicable license grant (including, without limitation, outside the applicable Order Form) or otherwise not in accordance with these General Terms, constitute or result in infringement of Axilion’s intellectual property rights as well as a breach of these General Terms. Licensee will notify Axilion promptly of any such Unauthorized Uses or other unauthorized installation or Access.
2.2. Circumvention.
2.2.1. Licensee may not utilize any equipment, device, software or other means to (or designed to) circumvent or remove any form of technical protection used by Axilion in connection with the Licensed Materials.
2.2.2. Licensee may not utilize any equipment, device, software, or other means to (or designed to) circumvent or remove any usage restrictions, or to enable functionality disabled by Axilion, in connection with the Excluded Materials. Licensee may not bypass or delete any functionality or technical limitations of the Licensed Materials that (or that are designed to) prevent or inhibit the unauthorized copying of, installation or Access to the Excluded Materials.
3. Intellectual Property Rights; Confidentiality
3.1. Axilion and its licensors retain title to and ownership of, and all other rights with respect to, the Licensed Materials and all copies thereof, including, without limitation, any related copyrights, trademarks, trade secrets, patents, and other intellectual property rights, including without limitation any processes, know-how, methodologies, tools, technologies, analytical methods, algorithms or ideas associated therewith and/or otherwise utilized by Axilion in connection with
any Services furnished or provided by Axilion to Licensee hereunder. Licensee has only the limited licenses granted with respect to the Licensed Materials expressly set forth in these General Terms and/or the Order Form, and Licensee has no other rights, implied or otherwise. Licensee acknowledges and agrees that the Licensed Materials are licensed, not sold, and that rights to install and Access the Licensed Materials are acquired only under the license from Axilion.
3.2. The Licensed Materials and any source code, know-how, process, methodology, tool, analytical method or algorithm associated therewith and/or otherwise utilized by Axilion, whether in oral, written, graphic, machine-readable or other form or otherwise identified as confidential or proprietary are valuable trade secrets of, and confidential and proprietary information of Axilion, and (a) may not be distributed, disclosed or otherwise provided to third parties (other than Authorized Users); and (b) may be used only in conjunction with the these General Terms. Licensee further acknowledges that unauthorized use or disclosure of the Licensed Materials may cause irreparable harm to Axilion.
4. Privacy; Use of Information; Connectivity
4.1. Privacy and Use of Information. Licensee acknowledges and agrees that Licensee (and third parties acting on Licensee’s behalf) may provide, and Axilion (and third parties acting on behalf of Axilion) may obtain, certain information and data with respect to Licensee (including, without limitation, personal information) and Licensee’s business in connection with these General Terms, including, without limitation, information and data provided to or obtained by Axilion (or third parties acting on behalf of Axilion) through the Order Form and otherwise, in connection with ordering, registration, activation, updating, validating entitlement to, auditing, monitoring installation of and Access to Licensed Materials, Services and managing the relationship with Licensee. Licensee hereby consents to Axilion maintaining, using, storing and disclosing such information and data (including, without limitation, personal information, if any). Without limitation of the generality of the foregoing, Licensee acknowledges and agrees that: (a) Axilion may provide information and data, including, without limitation, information and data about Licensee’s use of Licensed Materials and Licensee’s support requests, to Axilion subsidiaries and affiliates and other third parties in connection with the provision, maintenance, administration or usage of Licensed Materials or Services or in connection with enforcement of any agreements relating to Licensed Materials or Services; and (b) Axilion may make cross- border transfers of such information and data, including to jurisdictions with privacy or data protection laws that are less protective of Licensee than the jurisdiction in which Licensee is domiciled provided that the foregoing is done in accordance with applicable law.
4.2. Connectivity. Certain Licensed Materials may facilitate or require Licensee’s access to and use of content and services that are hosted on websites maintained by Axilion or by third parties. In some cases, such content and services may appear to be a feature or function within, or extension of, the Licensed Materials even though hosted on such websites. Accessing such content or services and use of Licensed Materials may cause Licensee’s computer, without additional notice, to connect automatically to the Internet (transitorily, intermittently or on a regular basis) and to communicate with an Axilion or third-party website—for example, for purposes of providing Licensee with additional information, features and functionality or to validate that the Licensed Materials and/or content or services are being used as permitted under these General Terms or other applicable terms. Such connectivity to Axilion websites is
governed by Axilion’s policies on privacy and data protection described in this Section 4 (Privacy; Use of Information; Connectivity). Such connectivity to websites of third parties is governed by the terms (including the disclaimers and notices) found on such sites or otherwise associated with the third-party content or services. Axilion does not control, endorse, or accept responsibility for any such third-party content or services, and any dealings between Licensee and any third party in connection with such content or services, including, without limitation, such third party’s privacy policies, use of personal information, delivery of and payment for goods and services, and any other terms associated with such dealings, are solely between Licensee and such third party. Axilion may at any time, for any reason, modify or discontinue the availability of any third-party content or services. Access to content and services (whether of Axilion or third parties) may require assent to separate terms and/or payment of additional fees.
5. Limited Warranty and Disclaimers
5.1. Limited Warranty. Axilion warrants that, as of the date on which the Licensed Materials are delivered to Licensee and for ninety-days (90) thereafter (“Warranty Period”), the Licensed Materials will provide the substantially similar features and functions as described in the Order Form of the Licensed Materials. Axilion’s entire liability and Licensee’s exclusive remedy during the Warranty Period (“Limited Warranty”) will be, with the exception of any statutory warranty or remedy that cannot be excluded or limited under law, at Axilion’s sole discretion, (i) to attempt to correct or work around errors, if any, or (ii) to refund the license fees, if any, paid by Licensee and terminate these General Terms, the Order Form and the license to such Licensed Materials. Such refund is subject to destruction of such Licensed Materials, during the Warranty Period. THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY HAVE ADDITIONAL LEGAL RIGHTS UNDER LAW WHICH VARY FROM JURISDICTION TO JURISDICTION. AXILION DOES NOT SEEK TO LIMIT LICENSEE’S WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW.
5.2. Disclaimer. EXCEPT FOR THE EXPRESS LIMITED WARRANTY PROVIDED IN SECTION 5.1 (LIMITED WARRANTY), AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AXILION AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS AND AFFILIATES MAKE, AND LICENSEE RECEIVES, NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPLIANCE WITH LOCAL LAWS AND REGULATIONS OR NONINFRINGEMENT, OR WARRANTIES OTHERWISE IMPLIED BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE) WITH RESPECT TO ANY LICENSED MATERIALS OR SERVICES. ANY STATEMENTS OR REPRESENTATIONS ABOUT THE LICENSED MATERIALS, OR SERVICES AND THEIR FEATURES OR FUNCTIONALITY IN THE LICENSED MATERIALS OR ANY COMMUNICATION WITH LICENSEE ARE FOR INFORMATION PURPOSES ONLY, AND DO NOT CONSTITUTE A WARRANTY, REPRESENTATION, OR CONDITION. WITHOUT LIMITING THE FOREGOING, AXILION DOES NOT WARRANT: (A) THAT THE OPERATION OR OUTPUT OF THE LICENSED MATERIALS OR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, ACCURATE, RELIABLE, OR COMPLETE, WHETHER OR NOT UNDER SUPPORT BY AXILION OR ANY THIRD PARTY; (B) THAT THE SOFTWARE AND LICENSED MATERIALS WILL BE AVAILABLE AND/OR COMPATIBLE WITH ANY ENVIRONMENT (C) THAT ERRORS WILL BE CORRECTED BY AXILION OR ANY THIRD PARTY;
OR (D) THAT AXILION OR ANY THIRD PARTY WILL RESOLVE ANY PARTICULAR SUPPORT REQUEST OR THAT SUCH RESOLUTION WILL MEET LICENSEE’S REQUIREMENTS OR EXPECTATIONS. NOTHING IN THE FOREGOING RESTRICTS THE EFFECT OF WARRANTIES OR CONDITIONS WHICH MAY BE IMPLIED BY LAW WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED NOTWITHSTANDING A CONTRACTUAL RESTRICTION TO THE CONTRARY.
6. Warnings
6.1. Functionality Limitations. The Licensed Materials and Services are commercial professional tools intended to be used by trained professionals only and the Licensed Materials and Services are not a substitute for Licensee’s professional judgment or independent testing. The Licensed Materials and Services are intended only to assist Licensee with its design, analysis, simulation, estimation, testing and/or other activities and are not a substitute for Licensee’s own independent design, analysis, simulation, estimation, testing, and/or other activities, including those with respect to safety. Due to the large variety of potential applications for the Licensed Materials and Services, the Licensed Materials and Services have not been tested in situations under which they may be used. Axilion will not be liable in any manner whatsoever for the results obtained through use of the Licensed Materials or Services. License is responsible for the supervision, management, and control of the Licensed Materials and Services and the results of using the Licensed Materials and Services. This responsibility includes, without limitation, the determination of appropriate uses for the Licensed Materials and Services and the selection of the Licensed Materials, Services and other and materials to help achieve intended results. Licensee is also responsible for establishing the adequacy of independent procedures for testing the reliability, accuracy, completeness, and other characteristics of any output of the Licensed Materials or Services, including, without limitation, all items designed with the assistance of the Licensed Materials or Services. Licensee further acknowledges and agrees that the Licensed Materials form part of Licensee’s total unique hardware and software environment to deliver specific functionality, and that the Licensed Materials and Services provided by Axilion may not achieve the results Licensee desires within Licensee’s design, analysis, simulation, estimation, and/or testing constraints.
7. Limitations of Liability
7.1. Limitation on Type and Amount of Liability. IN NO EVENT WILL AXILION AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS AND AFFILIATES HAVE ANY LIABILITY (DIRECTLY OR INDIRECTLY) FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES; FOR LOSS OF PROFITS, USE, REVENUE, OR DATA; OR FOR BUSINESS INTERRUPTION (REGARDLESS OF THE LEGAL THEORY FOR SEEKING SUCH DAMAGES OR OTHER LIABILITY). THE LIABILITY OF AXILION AND ITS AFFILIATES ARISING OUT OF OR RELATING TO ANY LICENSED MATERIALS OR SERVICES WILL NOT EXCEED THE AMOUNT PAID BY LICENSEE FOR SUCH LICENSED MATERIALS DURING THE PRECEDING TWELVE (12) MONTHS’ PERIOD.
7.2. Application of and Basis for Limitations. THE LIMITATIONS OF LIABILITY IN THIS SECTION 7 (LIMITATIONS OF LIABILITY) WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW TO ANY DAMAGES OR OTHER LIABILITY, HOWEVER CAUSED AND REGARDLESS OF THE
THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, EVEN IF AXILION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE. IN ADDITION, LICENSEE AGREES THAT THE LICENSE AND SERVICE FEES AND OTHER FEES CHARGED BY AXILION AND PAID BY LICENSEE ARE BASED ON AND REFLECTIVE OF THE ALLOCATION OF RISK CONTEMPLATED BY THIS SECTION 7 (LIMITATIONS OF LIABILITY) AND THAT THE LIABILITY LIMITATIONS IN THIS SECTION 7 (LIMITATIONS OF LIABILITY) ARE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES.
8. Indemnification
8.1. Each of Licensee or Axilion (“Indemnitor”) shall indemnify, defend and hold the other Party, its affiliates and licensors, and each of their respective employees, officers, directors, agents, and representatives (collectively, “Indemnitees”), harmless from and against any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorney’s fees) (“Losses”), caused by or arising out of a breach by Indemnitor or any of its employees, contractors, agents and any other representative, of any of these General Terms and/or the Order Form.
8.2. The Limitations of Liability set forth in Section 7 shall not apply to breach of confidentiality, breach of Indemnitees’ intellectual property rights, Losses due to Indemnitor’s fraud and/or willful misconduct, and death or personal injury.
9. Termination
9.1. Termination or Suspension. Axilion may terminate these General Terms and/or the Order Form, Licensee’s license as to Licensed Materials and/or the provision of Services relating to the Licensed Materials if the Licensee is in breach of these General Terms and/or the Order Form and fails to cure such breach within thirty (30) days after written notice of the breach; however, if Licensee is in breach of Section 1 (License), Section 2 (License Limitations; Prohibitions) or Section 3 (Intellectual Property Rights; Confidentiality), Axilion may terminate these General Terms and/or the Order Form, Licensee’s license as to Licensed Materials and/or the provision of Services relating to the Licensed Materials immediately upon written notice of the breach. In addition, Axilion may, as an alternative to termination, suspend Licensee’s license as to the Licensed Materials the provision of Services relating to the Licensed Materials, and/or other Axilion obligations or Licensee rights under these General Terms and/or the Order Form (or under other terms, if any, relating to materials associated with the Licensed Materials), if Licensee fails to make a payment to Axilion or otherwise fails to comply with the provisions of these General Terms or other terms relating to any such license, Services, or other associated materials. Axilion may also terminate these General Terms and/or the Order Form if Licensee becomes subject to bankruptcy proceedings, becomes insolvent, or makes an arrangement with Licensee’s creditors. These General Terms and/or the Order Form will terminate automatically without further notice or action by Axilion if Licensee goes into liquidation.
Licensee acknowledges and agrees that Axilion may assign or sub-contract any of its rights or obligations under these General Terms and/or the Order Form.
9.2. Effect of Termination of General Terms or License. Upon termination of these General Terms and/or the Order Form pursuant to Section 9.1, the licenses granted hereunder will terminate
and the provisions of this Section 9.2 shall apply. Upon termination hereunder any license granted to Licensee, Licensee must cease all use of Licensed Materials to which such license applies and any Services and uninstall all copies of the Licensed Materials. At Axilion’s request, Licensee agrees to destroy all Licensed Materials. Axilion reserves the right to require Licensee to show satisfactory proof that all copies of the Licensed Materials have been uninstalled and, if so requested by Axilion, destroyed or returned to Axilion.
9.3. Survival. Sections 1.3 (Authorized Users), 1.4 (Third-Party Licensed Materials), 2.1.1 (No License Granted; Unauthorized Activities), 2.1.4 (Effect of Unauthorized Use), 2.2 (Circumvention), 3 (Intellectual Property Rights; Confidentiality), 4 (Privacy; Use of Information; Connectivity), 5.2 (Disclaimer), 6 (Warnings), 7 (Limitations of Liability), 8 (Termination), and 9 (General Provisions) and Exhibit A will survive any termination or expiration of these General Terms.
10. General Provisions
10.1. Notices. Notices in connection with these General Terms by either party will be in writing and will be sent by electronic mail, postal service, or a delivery service. Notices will be effective (a) in the case of notices by email, one (1) day after sending to the email address provided, or (b) in the case of notices by mail or delivery service, five (5) days after sending by regular post or delivery service to the address provided.
10.2. Governing Law and Jurisdiction. These General Terms and/or the Order Form will be governed by and construed in accordance with the laws of the State of Israel, without reference to the conflicts-of-laws rules thereof. The UN Convention on Contracts for the International Sale of Goods shall not apply to (and are excluded from the laws governing) these General Terms. In addition, each party agrees that any claim, action or dispute arising under or relating to these General Terms and/or the Order Form will be brought exclusively in (and the parties will be subject to the exclusive jurisdiction of) the competent courts of Tel Aviv, Israel. Nothing in the foregoing will prevent Axilion from bringing an action for infringement of intellectual property rights in any country where such infringement is alleged to occur.
10.3. No Assignment; Insolvency. Licensee may not assign these General Terms or any rights hereunder (whether by purchase of stock or assets, merger, change of control, operation of law, or otherwise) without Axilion’s prior written consent, which may be withheld in Axilion’s sole and absolute discretion, and any unauthorized purported assignment by Licensee will be void.
10.4. Exceptions to Prohibitions. The prohibitions contained in these General Terms will not apply where and to the extent applicable law does not allow such prohibitions to be enforced. Licensee may have other rights under the laws of the state or country within the Territory where the Licensed Materials are acquired, and these General Terms does not change Licensee’s rights under the laws of such state or country if and to the extent the laws of such state or country do not permit these General Terms to do so. Licensee will bear the burden of proof to demonstrate that applicable law does not allow (i) the enforcement of such prohibitions; or (ii) these General Terms to change particular rights in a state or country (and that Licensee has not exceeded the bounds of the unenforceable prohibitions and unchangeable rights).
10.5. Severability. If and to the extent any provision of these General Terms and/or the Order Form is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or
unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision or any other provision of these General Terms and/or the Order Form in any other jurisdiction.
10.6. No Waiver. No term or provision of these General Terms and/or the Order Form will be considered waived, and no breach excused, unless such waiver is in writing signed on behalf of the party against which the waiver is asserted. No waiver (whether express or implied) will constitute consent to, waiver of, or excuse of any other, different, or subsequent breach.
10.7. Audits. Licensee agrees that Axilion has the right to require an audit (electronic, on-site or otherwise) of the Licensed Materials and Access thereto. As part of any such audit, Axilion or its authorized representative will have the right, on fifteen (15) days’ prior notice to Licensee, to inspect Licensee’s records, systems and facilities to verify Licensee’s Access to the Licensed Materials. Additionally, within fifteen (15) days of the audit request, Licensee will provide to Axilion all records and information requested by Axilion in order to verify Licensee’s Access to the Licensed Materials. Licensee will provide full cooperation to enable any such audit.
10.8. Construction. Ambiguities in these General Terms will not be construed against the drafter.
10.9. Force Majeure. Axilion will not be liable for any loss, damage or penalty resulting from delays or failures in performance resulting from acts of God, supplier delay or other causes beyond Axilion’s reasonable control.
10.10. Entire General Terms. These General Terms and any other terms referenced in these General Terms (such as the Services Terms and/or the Order Form) constitute the entire agreement between the parties (and merge and supersede any prior or contemporaneous agreements, discussions, communications, agreements, representations, warranties, advertising or understandings) with respect to the subject matter hereof. The parties acknowledge that, in entering into these General Terms, they are not relying on any agreements, discussions, communications, agreements, representations, warranties, advertising or understandings other than as expressly set forth in these General Terms and/or the Order Form. Licensee acknowledges and agrees that Axilion may add to or change to these General Terms from time to time, provided that Axilion will provide written notice of the additions or changes before the additions or changes are effective as to Licensee. In the event of a conflict between these General Terms and Order Form, the terms of the Order Form shall prevail. Terms stipulated by Licensee in any communication by Licensee which purport to vary these General Terms or such other terms will be void and of no effect unless agreed in a writing signed by an authorized representative of Axilion. Any other modifications to these General Terms will also be invalid unless agreed to in a writing signed by an authorized representative of Axilion.
Exhibit A
Definitios:
1. “Access” or “Accessible” means (a) to use or execute any computer program or other materials (including, without limitation, the Software and/or the Licensed Materials); or (b) to use or otherwise benefit from the features or functionality of the computer program or other materials (including, without limitation, the Software and/or the Licensed Materials).
2. “General Terms” means these General Terms and Conditions, including all exhibits and schedules thereto, as may be amended from time to time in accordance with the terms thereof.
3. “Authorized User” means any individual person who installs or Accesses, or is authorized to install or Access, any of the Licensed Materials.
4. “Axilion” means Axilion Ltd., a limited liability Company incorporated under the laws of the State of Israel.
5. “Excluded Materials” means any materials (including, without limitation, any computer programs, modules or components of a computer program, functionality or features of a computer program, explanatory printed or electronic materials, content or other materials, if any) that may be provided or become available to Licensee, by any means, or that are on any media delivered to Licensee, for which Licensee has not received license from Axilion or that otherwise Licensee has not paid (and continued to pay) the applicable fees. Licensee acknowledges that Excluded Materials are included for convenience (or otherwise) and such inclusion does not in any way authorize, expressly or impliedly, a right to use such Excluded Materials.
6. “Licensed Materials” means any materials distributed or made available by Axilion, directly or indirectly, including, without limitation, the Software and any error corrections, patches, service packs, updates and upgrades to, and new versions of the Licensed Materials that Axilion provides or makes available to Licensee under Licensee’s current license. Notwithstanding the foregoing (or any other provision of these General Terms), Licensed Materials in all cases excludes Excluded Materials.
7. “Licensee” means a company or other legal entity on behalf of which Licensed Materials are acquired in accordance with the applicable Order Form.
8. “Order Form” means such order form executed by Axilion and Licensee, detailing any commercial aspects (and/or other aspects) not otherwise covered by these General Terms.
9. “Services” means services (including the results of services) provided or made available by Axilion, including, without limitation, support services, storage, simulation and testing services, training and other benefits.
10. “Services Terms” means the terms for Services set forth in the applicable Order Form or otherwise made available by Axilion in connection with ordering such Services.
11. “Software” means Axilion’s “TransEm” software (and any Upgrade thereof) and including, without limitation, any module or component of a computer program, distributed or made available by Axilion. The term “Software” may also refer to functions and features.
12. “Territory” (a) means the country, countries or jurisdiction(s) specified in the Order Form, or (b) if no country or jurisdiction is specified, means the country in which Licensee acquires a license to the Licensed Materials.
13. “Upgrade” means a full version of the Licensed Materials (a) which is a successor to or substitute for a prior release and may incorporate error corrections, patches, service packs and updates and upgrades to, and may enhance or add to the features or functionality of, the prior release or different release of Licensed Materials, (b) is provided to a Licensee who has previously licensed the prior release or different release from Axilion. Whether Licensed Materials are an Upgrade and whether Licensee has met the qualifications to license particular Licensed Materials as an Upgrade are determined by Axilion.