Terms of Service

These Terms of Service (the “Agreement”) are entered into by and between Axion Ray Inc. (“Axion”), a Delaware corporation, and the customer identified in the applicable Order Form (“Customer”). Axion and Customer are each referred to herein as a “Party” and collectively as the “Parties.”

This Agreement governs Customer’s access to and use of (a) Axion’s software-as-a-service platform and any related applications, tools, or modules (collectively, the “Platform”), including any artificial intelligence–enabled features or functionalities provided therein, and (b) the related professional or support services provided by Axion (together with the Platform, the “Services”). Each Order Form executed by the Parties is subject to and incorporated into this Agreement.

In the event of any conflict or inconsistency between this Agreement and an applicable Order Form, the terms of the Order Form shall prevail, but solely with respect to the specific subject matter of such conflict.

This Agreement (and any referenced policies and Documentation) may be updated from time to time to reflect changes in the Services, applicable law, or business practices. Updates will be posted on the Platform or Axion’s website and take effect upon posting. Continued access or use of the Services after any update constitutes acceptance of the revised terms. Material updates will be communicated in advance where practicable and will apply on a going-forward basis (typically beginning with the next renewal or new Order Form) unless required earlier by law or mutual agreement.

1. PROVISION OF SERVICES. 

   1. Access. Subject to the terms and conditions of this Agreement, Axion will provide the Services set forth in an Order Form. Access to the Platform will be provided primarily as software-as-a-service.  Axion will provide to Customer the necessary passwords, access codes or protocols, API keys (the “Credentials”), and technical specifications, connectivity standards, protocols, Platform specifications, user documentation which may be updated from time to time (the “Documentation”), as may be necessary to allow Customer to access and use the Platform in connection with the Services. 

   2. Authorized Users and Credentials. The Customer will use commercially reasonable efforts to safeguard the Credentials, ensure that Credentials are not shared and prevent unauthorized access to, or use of the Platform. The Customer will promptly notify Axion of any suspected or actual unauthorized use or access it may become aware of.  Customer is responsible for managing its employees, contractors or agents that receive Credentials from Axion to access the Platform (the “Authorized Users”), ensuring that only Authorized Users are issued Credentials, that they are properly trained to use the Services in accordance with this Agreement, and that access is revoked immediately when no longer required. Axion may control access to the Platform to address security risks, abuse, or material breach of this Agreement.

   3. Customer Obligations. Customer acknowledges that successful Platform implementation is contingent upon Customer’s active participation, including compliance with any applicable implementation plan set forth or referenced in an Order Form.   

   4. Acceptable Use. Customer will not, and will not permit Authorized Users or any other third parties to: 

   5. allow any third party to access the Platform except as expressly allowed in an Order Form; 

   6. sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise make available the Platform for the benefit of any unauthorized third party; 

   7. reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code, process or data logic (or the underlying ideas, algorithms, structure or organization) of the Platform; 

   8. interfere in any manner with the operation or integrity of the Platform or any related system; 

   9. modify, copy or make derivative works based on any part of the Platform or Documentation; 

   10. access or use the Platform or Axion Materials to build, improve or enhance a similar or competitive product or service; 

   11. attempt to access the Platform through any unapproved interface or in excess of guidelines, usage or rate limits set forth in this Agreement or Documentation; 

   12. attempt to by-pass any limitations or cost structures in the Order Form, including via credential sharing, merging sites or documents, excessive seat swapping or other methods;

   13. otherwise use the Platform in any manner inconsistent with applicable law or the present Agreement; 

   14. use the Platform to generate, distribute, or assist in the distribution of malware, harmful, deceptive, or otherwise unlawful content; 

   15. use or allow any third party to use any Axion Materials (as defined below) to train artificial intelligence models;

   16. use the Platform Outputs without appropriate human oversight or independent managerial or professional judgment.  

   
   

2. CUSTOMER DATA.

   1. Customer Responsibility.  Customer is solely responsible for the accuracy, quality and legality of any data, content, or information provided or submitted by or on behalf of Customer or its Authorized Users for use in connection with the Services (the “Customer Data”). Customer will be solely responsible for obtaining all necessary rights, consents and permissions needed for Axion to process or otherwise use the Customer Data to provide the Services and comply with applicable laws. Customer is also responsible for managing account security, implementing appropriate administrative and technical safeguards to protect the Customer Data it provides, and complying with all applicable data protection and privacy laws in its use of the Services. 

   2. Third-Party Systems. Customer acknowledges that, to the extent that it chooses to integrate the Services with any third-party applications, systems, or datasets, the security of such systems is the responsibility of Customer or of relevant third-party vendor. Axion will not be responsible for any errors, loss, or corruption of any Customer Data resulting from such integrations or configurations.

   3. Axion Responsibility. To the extent Customer’s use of the Services and provision of the Customer Data respect the terms and conditions herein, Axion shall comply with all applicable laws in connection with the provision of the Services, including those related to data protection and privacy and will maintain reasonable physical, administrative and technical security measures designed to protect the availability, integrity and confidentiality of the Customer Data, in accordance with recognized industry practices and as further detailed in its express warranties to Customer in Section 7.

   
   

3. PAYMENTS.

   1. Fees.  In consideration for the access rights granted to Customer and the Services performed by Axion under this Agreement, Axion will be paid the fees as set forth in an Order Form (“Fees”).  Except as otherwise provided in an Order Form, payment obligations are non-cancelable, all amounts paid are nonrefundable. 

   2. Invoice Disputes. If Customer in good faith disputes any portion of an invoice, Customer must notify Axion within thirty (30) days of the invoice date and include a brief explanation of the disputed charges. All undisputed amounts remain payable when due. The Parties will work together in good faith to resolve the dispute promptly. Axion will not suspend the Services unless the dispute lasts longer than 120 days, or charge interest on the disputed portion while the dispute is being resolved, provided Customer continues to pay all undisputed amounts. Any adjustment or refund agreed upon will be applied to the next invoice or refunded promptly after resolution.

   3. Payments. Except as otherwise provided in an Order Form, all Fees are billed at the beginning of the Term, and due and payable within thirty (30) days of the date of the invoice. Axion reserves the right (in addition to any other rights or remedies Axion may have) to discontinue the Platform and suspend all Customer’s access to the Services if any undisputed Fees are more than thirty (30) days overdue until such amounts are paid in full.  Any amounts not paid when due will bear interest at the rate of one- and one-half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid. Customer may not set off, withhold, or deduct any amounts owed to Customer against amounts due to Axion under this Agreement.

   4. Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Axion’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the Platform to Customer. Customer will make all payments of Fees to Axion free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Axion will be Customer’s sole responsibility, and Customer will provide Axion with official receipts issued by the appropriate taxing authority, or such other evidence as Axion may reasonably request, to establish that such taxes have been paid.

4. INTELLECTUAL PROPERTY AND ARTIFICIAL INTELLIGENCE FEATURES.

   1. Customer Ownership. As between the Parties, Customer retains all right, title, and interest in and to the Customer Data, including any content submitted to the Platform as input for processing and to any reports or outputs that the Platform permits Customer to export (the “Platform Outputs”), subject to applicable laws. Axion receives no rights to those latter assets except as expressly granted herein or in the Order Form.

   2. Axion Ownership. Axion owns (i) the Platform and the software, algorithms, ontologies, datasets, data classifications, models and parameters it encompasses; (ii) the Documentation; (iii) the telemetry, activity, interactions and performance data regarding use of the Services by Customer, including events, Credentials and logs (the “Usage Data”), provided that such Usage Data does not include Customer Data (collectively, the “Axion Materials”). Customer receives no rights to the Axion Materials except as expressly granted herein or in the Order Form.

   3. License to Customer Data and Platform Outputs. Customer grants Axion a non-exclusive, worldwide, royalty-free right to host, copy, process and transmit Customer Data and Platform Outputs, solely to provide, maintain, secure, support, and bill for the Services and to comply with applicable laws, until and as needed to provide the Services, subject to lawful retention. 

   4. No training on Customer Data and Outputs. To the extent artificial intelligence features are used in the Services, Axion will not use Customer Data or Platform Outputs to train, retrain, or fine-tune any AI models (a “Customer Trained Model”) for other purposes than to deliver the Services to Customer, unless expressly permitted in an Order Form or Data Processing Addendum.

   5. Safety and Compliance. Axion may scan or analyze Customer Data, and Platform Outputs to detect abuse, malware, security threats, data exfiltration risks, policy violations or performance issues, and to protect the security, integrity and availability of the Services.

   6. Feedback. If Customer provides suggestions, ideas or feedback (for example, feature requests or improvements) regarding the Services, Customer grants Axion a perpetual, irrevocable, royalty-free, worldwide license to use such suggestions, ideas or feedback without restriction or attribution for any purpose.

   7. Manufacturing-Specific Risk Allocation. Because the Services may provide integrity intelligence and quality analytics to assist engineering, maintenance and/or manufacturing decisions, Customer remains solely responsible for validating the Platform Outputs and system recommendations before creating any maintenance, support or verification plans. Customer must implement appropriate quality controls, human review and regulatory compliance requirements into its operations. The Services are not a substitute for certified professional engineering, production safety verification, regulatory approvals or fail-safe systems.

   
   

5. CONFIDENTIALITY.

   1. Confidential Information. “Confidential Information” means any nonpublic information disclosed by a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. For the avoidance of doubt, Customer Data will be considered Confidential Information of Customer.

   2. Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to those employees who have a reasonable need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care.

   3. Exceptions. The confidentiality obligations set forth in Section 5.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) was independently developed by employees and contractors of the Receiving Party, as can be demonstrated by concurrent documentation. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

   
   

6. TERM AND TERMINATION.

   1. Term. Notwithstanding anything to the contrary in an Order Form, this Agreement will begin on the effective date of the first Order Form between the Parties and will continue in full force and effect for one (1) year following the termination of the last applicable Order Form signed under this Agreement, unless earlier terminated in accordance with the Agreement (the “Term”).  

   2. Order Form Term and Autorenewal. Each Order Form shall have an initial term specified on the Order Form (“Initial Term”). Thereafter, the Order Form will automatically renew for additional terms of one (1) year (“Renewal Term”) unless either Party gives written notice of non-renewal to the other Party at least thirty (30) days prior to the expiration of the then-current term. Upon renewal, the Services will continue under the then-current terms without any Initial Term discount and taking into account any applicable pricing adjustment. Services during the Renewal Term shall include all Services that were active at the end of the preceding term, excluding any one-time implementation Services.   

   3. Renewal Term Fees. Except as otherwise mutually agreed between the Parties, applicable Fees will automatically increase during each Renewal Term by the greater of 5% or the increase of U.S. Consumer Price Index (CPI-U). When applicable, no separate notice is required for such Fees increase. 

   4. Termination for Cause. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach. Axion may also, acting reasonably and upon sufficient justifications, terminate immediately upon notice if providing the Services to Customer is or becomes unlawful or to address material and incurable security or legal risk issues, provided Axion will prioritize suspension over termination when it deems reasonably possible.

   5. Fees on Termination. If Customer terminates for Axion’s uncured material breach, or if Axion terminates because continued service is unlawful without any related breach from Customer, Axion will refund any prepaid, unused Fees covering the post-termination portion of the then-current term. If Axion terminates for Customer’s breach, all undisputed amounts due and payable become immediately due.

   6. Transition Assistance. For 30 days after termination or expiration, upon written request by Customer, Axion will provide a one-time export of Customer Data and Platform Outputs in a commonly used, machine-readable format within 30 days of such request. Upon request, Axion will provide reasonable cooperation to transition Services, provided that (i) such Services may not include a license or export of any Axion Materials, and (ii) if additional effort is requested beyond standard export, such assistance will be at Axion’s then-current professional services rates.

   7. Deletion. Except to the extent retention is required by law or for standard backup/archival practices, Axion will delete Customer Data from production systems within 30 days after successful export and purge backups in the ordinary course. A deletion confirmation may be provided on request.

   8. Survival. Terms that by their nature should survive, including payment terms, confidentiality obligations, intellectual property and data provisions, disclaimers, indemnities, and limitations of liability will survive termination or expiration.

   
   

7. WARRANTIES AND DISCLAIMERS.

   1. Mutual Warranties.  Each Party represents and warrants the following: (i) that it is duly incorporated, validly existing and in good standing under the laws of its state of incorporation; (ii) that it has the full power and authority to consent to and perform this Agreement; and (iii) this Agreement has been duly and validly executed and constitutes the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.  

   2. Axion Warranties. Axion represents and warrants that (i) the Service will materially conform to the then-current Documentation under normal use and operation, provided Customer uses the Services in accordance with the Documentation and this Agreement; (ii) the Professional Services will be performed with reasonable skill and care, by qualified personnel, in a manner consistent with industry standard practices; (iii) Axion maintains administrative, physical and technical safeguards consistent with industry recognized practices such as SOC 2, ISO/IEC 27001 or equivalent, to protect Customer Data and personal data processed under this Agreement, and will comply with applicable privacy laws in the performance of the Services. 

   3. Warranties Remedies. If Customer notifies Axion in writing of any breach of the above warranties within 30 days of first becoming aware of the issue, Axion will use commercially reasonable efforts to correct the non-conformity. If Axion is unable to correct the defect within a commercially reasonable period, Customer’s sole and exclusive remedy for the breach of any of these warranties shall be, at Axion’s option, the (i) re-performance of the affected Service, or (ii) termination of the affected portion of the Services with a pro-rata refund of prepaid Fees covering the unutilized portion of the terminated Service.

   4. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, INCLUDING THE PLATFORM ARE PROVIDED “AS IS,” AND AXION MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. AXION DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES AXION GUARANTEE ANY SPECIFIC ACCURACY, RESULTS OR PLATFORM OUTPUT IN CONNECTION WITH USE OF THE SERVICE. CUSTOMER IS RESPONSIBLE FOR USING ITS OWN OPERATIONAL, TECHNICAL AND BUSINESS JUDGMENT IN CONNECTION WITH ANY RESEARCH, DEVELOPMENT, ENGINEERING OR QUALITY CONTROL PROCESS OR INITIATIVES THAT ARE USED IN CONNECTION WITH THE SERVICE, AND SHALL NOT SOLELY RELY ON THE PLATFORM OUTPUT. CUSTOMER IS SOLELY RESPONSIBLE FOR EVALUATING POTENTIAL PRODUCT FOR LEGAL AND SAFETY COMPLIANCE CONSIDERATIONS AS WELL AS COMMERCIAL LIABILITY.   AXION SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ACT OR OMISSION OF ANY THIRD PARTY OR ITS PRODUCTS OR SERVICES.

   
   

8. LIMITATION OF LIABILITY

   1. General. The limitations and exclusions in this Section are a fundamental basis of the parties’ bargain and apply to all theories of liability, whether in contract, tort (including negligence), strict liability, or otherwise.

   2. Exclusion of Certain Damages.  TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY OR PROCUREMENT OF SUBSTITUTE SERVICES, ANY BUSINESS INTERRUPTION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THIS LIMITATION IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.  

   3. General Liability Caps. EXCEPT IN THE EVENT OF (i) GROSS NEGLIGENCE OR WILFUL MISCONDUCT, (ii) DAMAGES RESULTING FROM COMPLIANCE WITH APPLICABLE LAWS, OR (iii)  DAMAGES ARISING FROM A BREACH OF AXION’S SECURITY OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE TOTAL FEES PAID OR DUE BY CUSTOMER TO AXION DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY (THE “LIABILITY CAP”). 

   4. Super-Cap for Specific Claims. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT IN THE EVENT OF GROSS NEGLIGENCE OR WILFUL MISCONDUCT, FOR DAMAGES ARISING FROM (I) COMPLIANCE WITH APPLICABLE LAWS, OR (II) A BREACH OF AXION’S SECURITY OBLIGATIONS UNDER THIS AGREEMENT, AXION’S AGGREGATE LIABILITY SHALL NOT EXCEED TWO (2) TIMES THE LIABILITY CAP. 

   
   

9. INDEMNIFICATION.

   1. By Axion. Axion will defend indemnify, and hold harmless Customer for any claim, action or suit brought against Customer (including reimbursement of Customer’s reasonable legal or expert fees or related litigation costs), and will pay any settlement, or any damages finally awarded in such suit, insofar as such suit is based on a claim, action or suit by any third party alleging (i) that the Services infringe or misappropriate a third party’s patent, copyright or trade secret rights, (ii) that the Services violate applicable law or other third-party rights (including personal information rights), or (iii) a breach of Axion’s confidentiality or security obligations hereunder. Notwithstanding the foregoing, Axion will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the Service not in accordance with this Agreement (ii) any use of the Service in combination with other products, services, software or data not supplied by Axion to the extent that such combination causes the infringement; (iii) Customer Data for which Customer has not obtained all rights, consents, and permissions necessary for Axion to process or otherwise use such Customer Data in order to provide the Services and comply with applicable laws. 

   2. By Customer. Customer will defend at its expense any claim, action or suit brought against Axion (including reimbursement of Axion’s reasonable legal or expert fees or related litigation costs), and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim, action or suit arising out of or relating to any (i) Customer Data, or Customer’s use of the Platform Outputs without sufficient human-in-the-loop verifications; or (ii) any improper or unauthorized use of the Services.

   3. Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit (provided any settlement unconditionally releases the indemnified party and does not impose non-monetary obligations without consent); and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
      
      

10. MISCELLANEOUS.

    1. Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The Parties hereby expressly consent to the exclusive personal jurisdiction and venue in the state and federal courts for New York, New York for any lawsuit arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The Parties expressly waive any right to a jury trial. 

    2. Compliance with Export Laws. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Axion, or any products utilizing such data, in violation of the United States export laws or regulations.

    3. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

    4. Order Changes. Any addition, removal, or modification of Services, pricing, or subscription quantities must be set out in a new or amended Order Form agreed by both Parties, which will, depending on the context, complement or supersede the prior Order Form for the affected Services.

    5. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

    6. Publicity. Except as provided in any applicable Order Form, Customer agrees that Axion may use Customer’s name and logo solely to identify Customer as a user of the Services in general marketing materials, presentations, and website listings, in a manner consistent with Customer’s brand guidelines and without suggesting endorsement. Customer may withdraw this permission at any time by written notice, after which Axion will cease further use within a reasonable period.

    7. No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party, but only if the continuity of the Services is guaranteed. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.

    8. Force Majeure. Any delay in the performance of any duties or obligations of either party  will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, telecommunication or internet delays or failures, fire, earthquake, flood, pandemic or epidemic, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible. Without limiting the foregoing, Axion may, acting reasonably, suspend the Services without any compensation when it deems required to do so by law or to address security or legal risk related to the Services, provided it will promptly reinstate Services once the issue is resolved.

    9. Independent Contractors. Customer’s relationship to Axion is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Axion.

    10. Notices. All notices required or permitted under this agreement must be delivered in writing by emailing the point of contact email address listed on the Order Form, provided, however, that with respect to any notices relating to breaches of this Agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice to the other party.

    11. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.

    12. Entire Agreement. This Agreement, along with the Order Form and any annexes incorporated by reference therein, is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and Axion.

        
        

Appendix B

Service-Level Agreement

This Service Level Agreement ("SLA") forms part of the Terms of Service entered into by and between Axion Ray Inc. (“Axion”), and the customer (“Customer”) identified in the applicable Order Form (the “Agreement”), and is incorporated by reference therein. Any terms capitalized and not defined herein will have the meaning given to them in the Agreement.

1. Introduction

Axion is committed to your success. This SLA details the performance standards and service levels applicable to the Platform, as well as the remedies available for breach of the SLA.

2. Support

Support shall be provided 24 hours per day, Monday to Friday, servicing tickets with appropriate SLAs as outlined below:

a.  Critical Error: - 1 hour acknowledgement; status reports hourly until resolved

b.  Major Error: - 2 hour acknowledgement; status reports every 8 hours until resolved

c.  General Error: - 1 business day acknowledgement; status reports daily until resolved

d.  Minor Error: - 1 business day acknowledgement; status reports as applicable 

3. Uptime Guarantee 

The Platform shall have at least 99% uptime, as measured monthly based on time that the Platform is Inaccessible as a percentage of total time in the month, excluding Scheduled Downtime or Permitted Downtime (the “Uptime Guarantee”). The Platform will be deemed “Inaccessible” if a user is unable to access the Platform for at least five minutes. The Uptime Guarantee shall not apply during any implementation or testing phases.

4. Scheduled Downtime 

Customer agrees that from time to time, the Platform may be inaccessible due to periodic maintenance procedures or repairs which Company may undertake, provided that such scheduled downtime shall not exceed 5 hours per month (“Scheduled Downtime”).  Company shall provide forty-eight (48) hours advance written notice to Client in the event of any such Scheduled Downtime. Company shall make reasonable efforts to schedule Scheduled Downtime outside of core business hours.

5. Permitted Downtime

“Permitted Downtime” means any period of unavailability primarily attributable to conditions beyond the sole control of Axion, including (i) acts or omissions of Customer or its users; (ii) issues associated with Customer’s computing devices, local area networks, or internet service provider connections; (iii) Delays due to Customer end user network failures, general internet traffic delays unrelated to the Application, and other delays caused by systems within Customer’s control; (iv) compliance with applicable law, government order, or regulatory mandate; and (v) any Force Majeure Event.

6. Service Credits.

Except as provided in Section 7, Customer’s sole remedy for SLA failures shall be the Service credits below:

7. Other Remedies

If Axion fails to achieve the Uptime Guarantee three months in a row, Customer may, within thirty days of such failure, terminate the Agreement upon simple written notice.

8. Contact Information 

Includes support contact details for inquiries or issues reporting. 

Support Email: contact@axionray.com

Phone Number: +1 (646) 637-6017

Mailing Address: 10 Grand St, Brooklyn, NY 11211