HomeMy WebLinkAboutContract 58143 CSC No. 58143
AXIOS HO .
Write less. Say more.
Letter of Agreement
Prepared for City of Fort Worth
September 2, 2022
Reyne,
Thank you for taking the time to evaluate working with Axios HQ®. We are excited to help
transform the City of Fort Worth's communications with the power of Smart BrevityTM. We are
submitting this document to you for signature to indicate your agreement to the terms outlined
below.
This Letter of Agreement ("LOA") is a binding legal contract between Axios Media Inc. ("Axios")
and the City of Fort Worth (the "Customer').
1. Scope of Services
• SaaS Subscription
Customer will have access to the web-based Axios HQ editor platform to write, edit, and
send communications. The initial subscription term will begin on Monday October 3,
2022 and run through October 2, 2023.
This pre-approved discounted one-year pilot requires that access is limited to authorized
Users within the Communications department, and shall not exceed 10 authorized
Users.
111. Pricing
Axios is pleased to provide the following pricing to the City of Fort Worth:
Subscription or Service Start Date End Date Pricing
Axios HQ Software Subscription Oct. 3,2022 Oct. 2, 2023 �49,009 $20,000
TOTAL: $20,000*
*Price is based on access only by authorized Users as specified in Section 1 above(Scope of
Services). Axios reserves the right to monitor Customer's usage. If actual usage exceeds the
authorized User parameters,Axios may suspend Customer's access to the Software until such
time as pricing has been renegotiated,the subscription term shall remain the same, and Customer
shall remain responsible for the full subscription fee during such suspension period.
Payment is due in full within 30 days receipt of invoice,to be issued upon singing of the LOA.
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
III. Terms and Conditions
Axios will provide Customer the services identified in this LOA under the terms herein and
subject to the Axios HQ Terms and Conditions ("HQ Terms") available at
https://editor.axioshcl.com/terms and incorporated herein by reference,subject to the following
mutually agreed modifications:
In the event of a conflict between the terms of this LOA and the HQ Terms,the terms of this LOA
will control solely regards to the Subscription and/or Services outlined herein.
IV. Acceptance
To preserve the pricing outlined herein, please return a signed copy of this LOA no later than
Friday, September 30,2022 to Michael Haggart at michael.haggart(o-)axios_com
Accepted and agreed to as of the date of last signature by the authorized representative of each
party:
Axios Media Inc.: City of Fort Worth
Mid LWArt
By:Michael Haggart(Sep tM02213:32 EDT) By:Rey Telles(Sep 29,2022 09:55 CDT)
Name: Michael Haggart Name:Reyne CTelles
Title: Team Lead Title: Chief Communications
Date: 09/21/22 Date: 09/29/22
Email:reyne.telles@fortworthtexas.gov
Billing Contact, if different from above:
Name:
Email:
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
ADDENDUM TO AGREEMENT
BETWEEN
THE CITY OF FORT WORTH
AND
AXIOS MEDIA, INC.
This Addendum to the Letter of Agreement("Addendum")is entered into by and between
Axios Media, Inc. ("Vendor") and the City of Fort Worth("City"), collectively the "parties."
The Contract documents shall include the following:
1. The Letter of Agreement,
2. This Addendum, and
3. Axios HQ Terms and Conditions
Notwithstanding any language to the contrary in the attached Letter of Agreement and
Axios HQ Terms and Conditions(the"Agreement"),the parties stipulate by evidence of execution
of this Addendum below by a representative of each party duly authorized to bind the parties
hereto,that the parties hereby agree that the provisions in this Addendum below shall be applicable
to the Agreement, and control in case of any conflict, as follows:
1. Term. The Agreement shall commence upon the date signed by the Assistant City
Manager below ("Effective Date") and shall expire no later than October 1, 2023 ("Expiration
Date"),unless terminated earlier in accordance with the provisions of this Agreement or otherwise
extended by the parties. This Agreement may be renewed for 1 year renewal periods at the City's
option, each a"Renewal Term." The City shall provide Vendor with written notice of its intent to
renew at least thirty (30) days prior to the end of each term.
2. Termination.
a. Convenience. Either City or Vendor may terminate the Agreement at any
time and for any reason by providing the other party with 30 days written notice of
termination.
b. Breach.If either party commits a material breach of the Agreement,the non-
breaching Party must give written notice to the breaching party that describes the breach
in reasonable detail. The breaching party must cure the breach thirty(30) days after receipt
of notice from the non-breaching party, or other time frame as agreed to by the parties. If
the breaching party fails to cure the breach within the stated period of time, the non-
breaching party may, in its sole discretion, and without prejudice to any other right under
the Agreement, law, or equity, immediately terminate the Agreement by giving written
notice to the breaching party.
C.
Addendum Page 1 of 10
d. Duties and Oblations of the Parties. In the event that the Agreement is
terminated prior to the Expiration Date, City shall pay Vendor for services actually
rendered up to the effective date of termination and Vendor shall continue to provide City
with services requested by City and in accordance with the Agreement up to the effective
date of termination. Upon termination of the Agreement for any reason, Vendor shall
provide City with copies of all completed or partially completed documents prepared under
the Agreement. In the event Vendor has received access to City information or data as a
requirement to perform services hereunder, Vendor shall return all City provided data to
City in a machine readable format or other format deemed acceptable to City.
3. Attorneys' Fees, Penalties, and Liquidated Damages. To the extent the attached
Agreement requires City to pay attorneys' fees for any action contemplated or taken, or penalties
or liquidated damages in any amount, City objects to these terms and any such terms are hereby
deleted from the Agreement and shall have no force or effect.
4. Law and Venue. The Agreement and the rights and obligations of the parties hereto
shall be governed by, and construed in accordance with the laws of the United States and state of
Texas, exclusive of conflicts of laws provisions. Venue for any suit brought under the Agreement
shall be in a court of competent jurisdiction in Tarrant County,Texas. To the extent the Agreement
is required to be governed by any state law other than Texas or venue in Tarrant County, City
objects to such terms and any such terms are hereby deleted from the Agreement and shall have
no force or effect.
5. Linked Terms and Conditions. If the Agreement contains a website link to terms
and conditions,the linked terms and conditions located at that website link as of the effective date
of the Agreement shall be the linked terms and conditions referred to in the Agreement. To the
extent that the linked terms and conditions conflict with any provision of either this Addendum or
the Agreement, the provisions contained within this Addendum and the Agreement shall control.
If any changes are made to the linked terms and conditions after the date of the Agreement, such
changes are hereby deleted and void. Further, if Vendor cannot clearly and sufficiently
demonstrate the exact terms and conditions as of the effective date of the Agreement, all of the
linked terms and conditions are hereby deleted and void.
6. Insurance. The City is a governmental entity under the laws of the state of Texas
and pursuant to Chapter 2259 of the Texas Government Code, entitled "Self-Insurance by
Governmental Units," is self-insured and therefore is not required to purchase insurance. To the
extent the Agreement requires City to purchase insurance, City objects to any such provision, the
parties agree that any such requirement shall be null and void and is hereby deleted from the
Agreement and shall have no force or effect. City will provide a letter of self-insured status as
requested by Vendor.
7. Sovereign Immunity. Nothing herein constitutes a waiver of City's sovereign
immunity. To the extent the Agreement requires City to waive its rights or immunities as a
government entity; such provisions are hereby deleted and shall have no force or effect.
Addendum Page 2 of 10
8. Limitation of Liability and Indemnity. To the extent the Agreement, in any way,
requires City to indemnify or hold Vendor or any third parry harmless from damages of any kind
or character, City objects to these terms and any such terms are hereby deleted from the Agreement
and shall have no force or effect.
9. IP Indemnification. Vendor agrees to indemnify, defend, settle, or pay, at its
own cost and expense, including the payment of attorney's fees, any third party claim or
action against the City for infringement of any patent, copyright, trade mark, service mark,
trade secret, or other intellectual property right arising from City's use of the Deliverable(s),
or any part thereof, in accordance with the Agreement, it being understood that the
agreement to indemnify, defend, settle or pay shall not apply if City modifies or misuses the
Deliverable(s). So long as Vendor bears the cost and expense of payment for claims or actions
against the City pursuant to this section 8,Vendor shall have the right to conduct the defense
of any such claim or action and all negotiations for its settlement or compromise and to settle
or compromise any such claim; however, City shall have the right to fully participate in any
and all such settlement, negotiations, or lawsuit, at City's expense, as necessary to protect
the City's interest, and City agrees to cooperate with Vendor in doing so. In the event City,
for whatever reason, assumes the responsibility for payment of costs and expenses for any
claim or action brought against the City for infringement arising under the Agreement, the
City shall have the sole right to conduct the defense of any such claim or action and all
negotiations for its settlement or compromise and to settle or compromise any such claim;
however,Vendor shall fully participate and cooperate with the City in defense of such claim
or action. City agrees to give Vendor timely written notice of any such claim or action,with
copies of all papers City may receive relating thereto. Notwithstanding the foregoing, the
City's assumption of payment of costs or expenses shall not eliminate Vendor's duty to
indemnify the City under the Agreement. If the Deliverable(s), or any part thereof, is held to
infringe and the use thereof is enjoined or restrained or, if as a result of a settlement or
compromise,such use is materially adversely restricted,Vendor shall,at its own expense and
as City's sole remedy, either: (a) procure for City the right to continue to use the
Deliverable(s); or (b) modify the Deliverable(s) to make them/it non-infringing, provided
that such modification does not materially adversely affect City's authorized use of the
Deliverable(s); or (c) replace the Deliverable(s) with equally suitable, compatible, and
functionally equivalent non-infringing Deliverable(s) at no additional charge to City; or (d)
if none of the foregoing alternatives is reasonably available to Vendor, terminate the
Agreement, and refund all amounts paid to Vendor by the City, subsequent to which
termination City may seek any and all remedies available to City under law. VENDOR'S
OBLIGATIONS HEREUNDER SHALL BE SECURED BY THE REQUISITE INSURANCE
COVERAGE REQUIRED BY CITY.
10. Data Breach. Vendor further agrees that it will monitor and test its data
safeguards from time to time, and further agrees to adjust its data safeguards from time to
time in light of relevant circumstances or the results of any relevant testing or monitoring. If
Vendor reasonably suspects or becomes aware of any unauthorized access to any financial
or personal identifiable information ("Personal Data") by any unauthorized person or third
party,or becomes aware of any other security breach relating to Personal Data held or stored
by Vendor under the Agreement or in connection with the performance of any services
Addendum Page 3 of 10
performed under the Agreement or any Statement(s)of Work("Data Breach"),Vendor shall
promptly notify City in writing and shall fully cooperate with City at Vendor's expense to
prevent or stop such Data Breach. In the event of such Data Breach, Vendor shall fully and
immediately comply with applicable laws, and shall take the appropriate steps to remedy
such Data Breach. Vendor will defend, indemnify and hold City, its Affiliates, and their
respective officers, directors, employees and agents, harmless from and against any and all
claims, suits, causes of action, liability, loss, costs and damages, including reasonable
attorney fees, arising out of or relating to any third party claim arising from breach by
Vendor of its obligations contained in this Section, except to the extent resulting from the
acts or omissions of City. All Personal Data to which Vendor has access under the
Agreement, as between Vendor and City, will remain the property of City. City hereby
consents to the use, processing and/or disclosure of Personal Data only for the purposes
described herein and to the extent such use or processing is necessary for Vendor to carry
out its duties and responsibilities under the Agreement,any applicable Statement(s)of Work,
or as required by law. Vendor will not transfer Personal Data to third parties other than
through its underlying network provider to perform its obligations under the Agreement,
unless authorized in writing by City. Vendor's obligation to defend, hold harmless and
indemnify City shall remain in full effect if the Data Breach is the result of the actions of a
third party. All Personal Data delivered to Vendor shall be stored in the United States or
other jurisdictions approved by City in writing and shall not be transferred to any other
countries or jurisdictions without the prior written consent of City.
11. No Mandatory Arbitration. To the extent the Agreement requires mandatory
arbitration to resolve conflicts, City objects to these terms and any such terms are hereby deleted
from the Agreement and shall have no force or effect.
12. Insurance. Vendor agrees that insurance coverage provided to City by Vendor is
sufficient for purposes of the Agreement only.
13. No Debt. In compliance with Article 11 § 5 of the Texas Constitution, it is
understood and agreed that all obligations of City hereunder are subject to the availability of funds.
If such funds are not appropriated or become unavailable, City shall have the right to terminate the
Agreement except for those portions of funds which have been appropriated prior to termination.
14. Public Information. City is a government entity under the laws of the State of Texas
and all documents held or maintained by City are subject to disclosure under the Texas Public
Information Act. To the extent the Agreement requires that City maintain records in violation of
the Act, City hereby objects to such provisions and such provisions are hereby deleted from the
Agreement and shall have no force or effect. In the event there is a request for information marked
Confidential or Proprietary, City shall promptly notify Vendor. It will be the responsibility of
Vendor to submit reasons objecting to disclosure. A determination on whether such reasons are
sufficient will not be decided by City, but by the Office of the Attorney General of the State of
Texas or by a court of competent jurisdiction.
Addendum Page 4 of 10
15. Addendum Controlling. If any provisions of the attached Agreement, conflict with
the terms herein, are prohibited by applicable law, conflict with any applicable rule, regulation or
ordinance of City,the terms in this Addendum shall control.
16. Network Access.
a. City Network Access. If Vendor, and/or any of its employees, officers,
agents, servants or subcontractors (for purposes of this section "Vendor Personnel"),
requires access to the City's computer network in order to provide the services herein,
Vendor shall execute and comply with the Network Access Agreement which is attached
hereto as Exhibit"A"and incorporated herein for all purposes.
b. Federal Law Enforcement Database Access. If Vendor, or any Vendor
Personnel,requires access to any federal law enforcement database or any federal criminal
history record information system, including but not limited to Fingerprint Identification
Records System("FIRS"), Interstate Identification Index System ("III System"),National
Crime Information Center ("NCIC") or National Fingerprint File ("NFF"), or Texas Law
Enforcement Telecommunications Systems("TLETS"),that is governed by and/or defined
in Title 28, Code of Federal Regulations Part 20 ("CFR Part 20"), for the purpose of
providing services for the administration of criminal justice as defined therein on behalf of
the City or the Fort Worth Police Department,under the Agreement,Vendor shall comply
with the Criminal Justice Information Services Security Policy and CFR Part 20, as
amended,and shall separately execute the Federal Bureau of Investigation Criminal Justice
Information Services Security Addendum. No changes, modifications, alterations, or
amendments shall be made to the Security Addendum. The document must be executed as
is, and as approved by the Texas Department of Public Safety and the United States
Attorney General.
17. Immigration Nationality Act. Vendor shall verify the identity and employment
eligibility of its employees who perform work under the Agreement, including completing the
Employment Eligibility Verification Form(I-9). Upon request by City,Vendor shall provide City
with copies of all I-9 forms and supporting eligibility documentation for each employee who
performs work under the Agreement. Vendor shall adhere to all Federal and State laws as well as
establish appropriate procedures and controls so that no services will be performed by any Vendor
employee who is not legally eligible to perform such services. VENDOR SHALL INDEMNIFY
CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR
LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY VENDOR, VENDOR'S
EMPLOYEES,SUBCONTRACTORS,AGENTS,OR LICENSEES.City,upon written notice
to Vendor, shall have the right to immediately terminate the Agreement for violations of this
provision by Vendor.
18. No Boycott of Israel. If Vendor has fewer than 10 employees or the Agreement is
for less than$100,000,this section does not apply. Vendor acknowledges that in accordance with
Chapter 2270 of the Texas Government Code,City is prohibited from entering into a contract with
a company for goods or services unless the contract contains a written verification from the
company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the
Addendum Page 5 of 10
contract. The terms "boycott Israel" and "company" shall have the meanings ascribed to those
terms in Section 808.001 of the Texas Government Code. By signing this Addendum, Vendor
certifies that Vendor's signature provides written verification to City that Vendor: (1) does not
boycott Israel; and(2) will not boycott Israel during the term of the Agreement.
19. Right to Audit. Vendor agrees that City shall,until the expiration of three(3)years
after final payment under the Agreement and at City's sole expense, have access to and the right
to examine any directly pertinent books, documents, papers and records of Vendor involving
transactions relating to the Agreement. Vendor agrees that City shall have access during normal
working hours to all necessary Vendor facilities and shall be provided adequate and appropriate
workspace in order to conduct audits in compliance with the provisions of this section. City shall
give Vendor reasonable advance notice of intended audits.
20. Prohibition on Boycotting Energy Companies. Vendor acknowledges that in
accordance with Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg.,
R.S., S.B. 13, § 2, the City is prohibited from entering into a contract for goods or services that
has a value of$100,000 or more that is to be paid wholly or partly from public funds of the City
with a company with 10 or more full-time employees unless the contract contains a written
verification from the company that it: (1) does not boycott energy companies; and (2) will not
boycott energy companies during the term of the contract. The terms "boycott energy company"
and "company" have the meaning ascribed to those terms by Chapter 2274 of the Texas
Government Code,as added by Acts 2021, 87th Leg.,R.S., S.B. 13, §2. To the extent that Chapter
2274 of the Government Code is applicable to this Agreement,by signing this Agreement,Vendor
certifies that Contractor's signature provides written verification to the City that Contractor: (1)
does not boycott energy companies; and(2)will not boycott energy companies during the term of
this Agreement.
21. Prohibition on Discrimination Against Firearm and Ammunition Industries.
Vendor acknowledges that except as otherwise provided by Chapter 2274 of the Texas
Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1, the City is prohibited
from entering into a contract for goods or services that has a value of$100,000 or more that is to
be paid wholly or partly from public funds of the City with a company with 10 or more full-time
employees unless the contract contains a written verification from the company that it: (1) does
not have a practice, policy, guidance, or directive that discriminates against a firearm entity or
firearm trade association; and (2) will not discriminate during the term of the contract against a
firearm entity or firearm trade association. The terms"discriminate,""firearm entity"and"firearm
trade association" have the meaning ascribed to those terms by Chapter 2274 of the Texas
Government Code,as added by Acts 2021,87th Leg.,R.S., S.B. 19, § 1. To the extent that Chapter
2274 of the Government Code is applicable to this Agreement,by signing this Agreement,Vendor
certifies that Contractor's signature provides written verification to the City that Contractor: (1)
does not have a practice, policy, guidance, or directive that discriminates against a firearm entity
or firearm trade association; and (2)will not discriminate against a firearm entity or firearm trade
association during the term of this Agreement.
22. Insurance.
Addendum Paae 6 of 10
1.1. The Vendor shall carry the following insurance coverage with a company that is
licensed to do business in Texas or otherwise approved by the City:
1.1.1. Commercial General Liability:
1.1.1.1. Combined limit of not less than $2,000,000 per occurrence;
$4,000,000 aggregate; or
1.1.1.2. Combined limit of not less than $1,000,000 per occurrence;
$2,000,000 aggregate and Umbrella Coverage in the amount of $4,000,000.
Umbrella policy shall contain a follow-form provision and shall include coverage
for personal and advertising injury.
1.1.1.3.Defense costs shall be outside the limits of liability.
1.1.2. Statutory Workers' Compensation and Employers' Liability Insurance
requirements per the amount required by statute.
1.1.3. Technology Liability(Errors&Omissions)
1.1.3.1. Combined limit of not less than $2,000,000 per occurrence;
$4million aggregate or
1.1.3.2. Combined limit of not less than $1,000,000 per occurrence;
$2,000,000 aggregate and Umbrella Coverage in the amount of $4,000,000.
Umbrella policy shall contain a follow-form provision and shall include coverage
for personal and advertising injury. The umbrella policy shall cover amounts for
any claims not covered by the primary Technology Liability policy.Defense costs
shall be outside the limits of liability.
1.1.3.3. Coverage shall include,but not be limited to,the following:
1.1.3.3.1. Failure to prevent unauthorized access;
1.1.3.3.2. Unauthorized disclosure of information;
1.1.3.3.3. Implantation of malicious code or computer
virus;
1.1.3.3.4. Fraud, Dishonest or Intentional Acts with final
adjudication language;
1.1.3.3.5. Intellectual Property Infringement coverage,
specifically including coverage for intellectual property infringement
claims and for indemnification and legal defense of any claims of
intellectual property infringement, including infringement of patent,
copyright, trade mark or trade secret, brought against the City for use of
Deliverables, Software or Services provided by Vendor under this
Agreement;
1.1.3.3.6. Technology coverage may be provided through
Addendum Page 7 of 10
an endorsement to the Commercial General Liability (CGL) policy, a
separate policy specific to Technology E&O, or an umbrella policy that
picks up coverage after primary coverage is exhausted.Either is
acceptable if coverage meets all other requirements. Technology coverage
shall be written to indicate that legal costs and fees are considered outside
of the policy limits and shall not erode limits of liability. Any deductible
will be the sole responsibility of the Vendor and may not exceed$50,000
without the written approval of the City. Coverage shall be claims-made,
with a retroactive or prior acts date that is on or before the effective date
of this Agreement. Coverage shall be maintained for the duration of the
contractual agreement and for two (2) years following completion of
services provided. An annual certificate of insurance,or a full copy of the
policy if requested, shall be submitted to the City to evidence coverage;
and
1.1.3.3.7. Any other insurance as reasonably requested by
City.
1.2. General Insurance Requirements:
1.2.1. All applicable policies, except for workers compensation, shall name the
City as an additional insured thereon, as its interests may appear. The term City shall
include its employees,officers,officials,agents,and volunteers in respect to the contracted
services.
1.2.2. The workers' compensation policy shall include a Waiver of Subrogation
(Right of Recovery)in favor of the City of Fort Worth.
1.2.3. A minimum of Thirty (30) days' notice of cancellation or reduction in
limits of coverage shall be provided to the City. Ten(10)days' notice shall be acceptable
in the event of non-payment of premium. Notice shall be sent to the Risk Manager, City
of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City
Attorney at the same address.
1.2.4. The insurers for all policies must be licensed and/or approved to do
business in the State of Texas. All insurers must have a minimum rating of A-VII in the
current A.M.Best Key Rating Guide,or have reasonably equivalent financial strength and
solvency to the satisfaction of Risk Management. If the rating is below that required,
written approval of Risk Management is required.
1.2.5. Any failure on the part of the City to request required insurance
documentation shall not constitute a waiver of the insurance requirement.
1.2.6. Certificates of Insurance evidencing that the Vendor has obtained all
required insurance shall be delivered to and approved by the City's Risk Management
Division prior to execution of this Agreement.
(signature page follows)
Addendum Page 8 of 10
[Executed effective as of the date signed by the Assistant City Manager below.] / [ACCEPTED
AND AGREED:]
City: Vendor:
M'� art
By. i1—t-'.o,y z„4f By: Michael Haggart(Sep U: 2:32 EDT
Name: Reyne Telles Name: Michael Haggart
Title: Chief Communication Officer Title: Team Lead
Date: 09/29/2022
Date: 09/21/2022
CITY OF FORT WORTH INTERNAL ROUTING PROCESS:
Approval Recommended: Contract Compliance Manager:
By signing I acknowledge that I am the
person responsible for the monitoring and
'� administration of this contract, including
By: Rey Teller(Sep 29,2U22 U9:55 CDT) ensuring all performance and reporting
Name: Reyne CTelles requirements.
Title: Chief Communications
Approved as to Form and Legality By: mei, on
Name: Evonia Daniels
Title: Sr. Administrative Assistant o zt FORp00
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By: P�o o�-��
Name: _Taylor C. Paris City Secretary: Pv o o0=�
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Title: Assistant City Attorney O�a��OOOOOOO0000
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Contract Authorization: By: r Ronald P.Gonzales(Sep 29,2U2215: DT)
M&C: Name: Jannette S. Goodall
Title: City Secretary
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Addendum Page 9 of 10
Addendum Page 10 of 10
M10S HO.
Axios HQ@ Terms and Conditions
Axios HQ@ is a proprietary subscription software and suite of professional services by Axios Media Inc. ("Axios") that helps
organizations harness the power of Axios'signature Smart Brevity@ writing style. By executing any letter of agreement,
statement of work, order form,purchase order,or other contractual instrument for access to and use of the Axios HQ
Software or related Professional Services (any"Order Schedule"),the Customer agrees to be bound by these Axios HQ
Terms and Conditions (together with the Order Schedules,the"Agreement").
1. DEFINITIONS
Customer means the organization or entity identified in the Order Schedule and all its Users.
Customer Content means any editorial content and materials that Customer inputs into the Software or provides to Axios in
connection with the Professional Services, including (without limitation) any text, images, photos, audiovisual components,
Customer Data,and other files,whether or not ultimately used in Customer's Newsletters.
Customer Data means any data or information that Customer inputs into the Software or provides to Axios in connection with
the Software or Professional Services,including (without limitation) User and Recipient information (such as name and emails).
Customer Data is a subset of Customer Content.
Documentation means any technical manuals,functional manuals,operator and user guides,training materials,instructions,
and other documentation and information regarding the Software and Professional Services provided by Axios to Customer
in any format or medium (as updated by Axios from time-to-time).
Newsletters means the Smart Brevity@ enabled electronic newsletters created by or on behalf of Customer using the Software
or Professional Services,whether or not ultimately distributed to Recipients.
Professional Services means the training, editorial,consulting, and other professional services provided by Axios pursuant to
an Order Schedule and all methods, processes,know-how,and information embodied therein.
Recipients means the individuals to whom the Newsletters are sent.
Software means the Axios HQ@ software application subscription service and all ideas, concepts, inventions, systems,
platforms, code, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, trade
secrets,technologies,implementations,and information embodied therein (excluding Customer Content).
Software Data means (i) any data input into the Software by or on behalf of Axios or else used by Axios in connection with
the Professional Services (excluding Customer Data); and (ii) any aggregated and anonymized data extracted or derived
from the Software,including usage data,statistical data,transactional data,metadata,market data,and account data.
Users means the employees, agents, and contractors of Customer and its affiliates who have access to the Software or
Professional Service by virtue of their relationship to the Customer.
2. SOFTWARE AND PROFESSIONAL SERVICES
2.1 Software and Professional Services. Subject to the terms of this Agreement,including Customer's timely payment of
all fees,Axios shall make the Software and Professional Services available to Customer during the Term (defined in
Section 7.1 below)in accordance with the applicable Order Schedule.Customer is permitted to access and use the
Software and Professional Services solely to create and distribute Newsletters to its Recipients for its own business
purposes.
2.2 Software License. If the applicable Order Schedule includes a Software subscription,Axios hereby grants to Customer
a limited, nonexclusive, non-transferable license to access and use the Software and Documentation solely during
the Subscription Term (defined in Section 7.1 below) and solely by the business units or number of Users specified in
the Order Schedule.
2.3 Professional Services. If the applicable Order Schedule includes Professional Services, such Professional Services are
subject to the Professional Services Terms found in Exhibit A in addition to the terms found in the body of this
Agreement.
3. CUSTOMER RESPONSIBILITIES
3.1 Compliance with Laws.Customer shall at all times comply with all laws,rules and regulations applicable to its use of
the Software and Professional Services,including any applicable marketing communications laws, rules, regulations
and guidelines such as the CAN SPAM Act, Section 5(a) of the FTC Act, and state-level unfair and deceptive acts
and practices laws. Customer shall also comply with any applicable industry self-regulatoryguidelines,standards and
best practices. Customer is solely responsible for its compliance with applicable laws,rules,regulations or self-
regulatory guidelines in connection with this Agreement,and Axios disclaims all liability for Customer's violation of the
same.
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3.2 Customer Content. Customer is solely responsible and liable for its Customer Content (including Customer Data).
Customer warrants that it has all rights,titles, licenses, consents, and permissions necessary for use of the Customer
Content in connection with the Software and Professional Services,and that such use will not infringe upon any third
party's rights of intellectual property, publicity or privacy. Customer additionally warrants and covenants that the
Customer Content shall not (a) violate any applicable law,rule or regulation to which Customer or Axios is subject;
(b) violate any contractual obligation to which Customer is bound; (c) contain materials that are obscene,
inappropriate,offensive,harmful or defamatory,or which encourage or incite violence,illegal activity,discrimination
or hate; or (d) contain any personally identifiable information or personal data which may be categorized as
"sensitive" or "special" under any applicable data protection or privacy law or regulation; or (f) violate any
"community guidelines", "acceptable use policies", or similar policy documents as may be provided by Axios from
time-to-time.
3.3 Regulated Industries and Topics.If the Customer Content relates to any regulated industry or topic (such as medical,
legal,tax or financial advice, or the sale or distribution of regulated products and services),Customer warrants and
covenants that it is, and will remain throughout the Term, in possession of all licenses, certifications, credentialing,
expertise and permits necessary and appropriate to the provision of such advice, products and services. Customer
is solely responsible for including in its Newsletters any appropriate disclaimers as required by applicable law or
industry guidelines.
3.4 No Misrepresentation. Customer shall not use its Newsletters to misrepresent itself, to commit fraud, to impersonate
Axios or any third party,or to claim any false endorsement by Axios or any third party.Customer shall make it clear to
Recipients that Customer is the source of the Newsletter and exclusively responsible for all of the Customer Content
therein.AAos does not endorse the newsletters of any of its customers,nor any opinion,recommendation,or advice
expressed therein.
3.5 Axios Disclaimers. Axios expressly disclaims any and all responsibility and liability for the Customer Content.Customer
agrees to indemnify Axios in accordance with Section 11 (Indemnification) from and against any third-party claim
arising in connection with the Customer Content.
4. PROPRIETARY RIGHTS
4.1 Axios Intellectual Property. Axios owns and shall at all times retain all rights in and to the Software,Software Data,
Professional Services,Documentation, Feedback,and all materials embodied in or incorporated therein (including
but not limited to images.text,software,scripts,graphics,photos,sounds,music,video files,interactive features
and other materials, but excluding Customer Content),as well as any extensions, derivatives,translations,
reformulations or developments derived therefrom ("Axios Intellectual Property"). Customer receives only such
limited licenses to Axios Intellectual Property as are expressly provided in this Agreement.All other rights are
reserved by Axios.
4.2 Customer Content.Customer retains all rights,title and interest in and to the Customer Content(including Customer
Data). Customer Content shall be treated as Customer's Confidential Information, as defined in Section 9 below
(Confidentiality). Customer grants Axios a limited, non-exclusive, royalty free license to reproduce, display, modify,
distribute,transmit and otherwise use the Customer Content during the Term on an 'as needed' basis in connection
With the provision of the Software and Professional Services,and as otherwise specified in this Agreement.
4.3 Newsletters. Customer owns the Newsletters created using the Software or Professional Services during the Term;
provided that Axios retains all rights in and to any underlying Axios Intellectual Property embedded therein (including
underlying code and images from the Software's image library),and Customer receives only a limited,non-exclusive,
perpetual license to use the same solely as a component of the Customer's Newsletters.
4.4 Newsletter Analytics.Subject to Axios'rights in and to the Software Data,Customer owns the analytics data regarding
Customer's Newsletter sends and Recipient engagement, such as opens and click rates ("Newsletter Analytics").
Customer may extract its Newsletter Analytics data from its Accounts at any time during the Term.AAos is not required
to maintain Newsletter Analytics data beyond the Term.
4.5 Third Party Materials. Customer acknowledges that the Software may integrate and/or interact with materials
obtained through a third-party provider, such as third-party APIs, single sign-on or social login features, browser
extensions,text,images (including those in the Software's image library), and audiovisual components (collectively
"Third-Party Materials"). All Third-Party Materials are provided as-is, and Axios makes no claim, representation or
warranty of any kind, type or nature concerning the same. Axios may remove any Third-Party Materials from the
Software at any time and for any reason without prior notice to Customer. Customer is solely responsible and liable
for its use of any Third-Party Materials and agrees to read and comply with any applicable terms and conditions,use
restrictions or other requirements imposed by the owner of such Third-Party Materials ("Third-Party Terms"). Customer
hereby waives any and all claims that it may have against Axios arising in connection with its use of Third-Party
Materials and further agrees to indemnify Axios in accordance with Section 11 (Indemnification) from and against
any claim arising in connection with Customer's violation of applicable Third-Party Terms.
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4.6 Software Data.Customer acknowledges and accepts that the Software may aggregate metadata and usage data
from across multiple customer accounts in a mannerthat renders such data non-identifiable with respect to Customer
or its Users. Customer agrees that such aggregated data will be deemed Software Data. Axios may use Software
Data both during and after the Term in any manner it chooses, including for improvements to the Software and
Professional Services and the creation of new features,or new products and services.
4.7 Customer Feedback. Customer may volunteer or be asked to offer comments, input or other feedback
regarding the Software and/or Professional Services ("Feedback"), but Customer has no obligation to provide
Feedback. Customer agrees that if Customer provides any Feedback, Axios is free to use such Feedback in
perpetuity, in any manner it chooses, including the improvement of the Software or Professional Services or the
development of new products and services,without payment of compensation or any other obligation to Customer.
5. SOFTWARE-SPECIFIC TERMS
5.1 Access of Software. In order to access the Software, Customer must register and create one or more accounts
("Accounts"). Customer represents and warrants that all information provided in connection with its Accounts will
be accurate,complete and current.Customer is solely responsible and liable for the activity of its Users within its
Accounts, for keeping its Accounts' login information and passwords secure,and for immediately notifying Axios of
any breach of security or unauthorized use of its Accounts.
5.2 Use of Software. Customer's use of the Software shall at all times be (i) in its original form, without alteration or
combination with other products, services, or software except as expressly authorized in any applicable
Documentation; (ii) in accordance with the terms of this Agreement and the Documentation;and (iii) in compliance
With all applicable laws,rules,regulations and industry standards.
5.3 Restrictions. Customer shall not attempt to (and shall not authorize or allow any third party to attempt to): (a)
download or otherwise obtain a copy of the Software or any component thereof in any form; (b) reverse engineer,
reverse compile, disassemble, or otherwise derive the source code of the Software; (c) circumvent, disable or
otherwise interfere with security-related features of the Software, or features that enforce limitations on use of the
Software; (d) sell, lease, license, sublicense, or distribute the Software, use the Software as a service bureau, or
otherwise transfer the Software,in whole or in part; (e) use the Software to post,send, process or store material that
is infringing, obscene,threatening, libelous, or otherwise unlawful or tortious, or material containing software viruses,
worms,Trojan horses or other harmful or malicious computer code,files,scripts,agents or programs; (f) remove,alter
or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other
indications of intellectual property rights that may be found within or affixed to the Software or any content therein;
or(g) use any of the information or]earnings obtained through the Software to create any service,software,product,
documentation or data that is similar to any aspect of the Software or which otherwise competes with Axios.Axios
reserves the right to immediately terminate this Agreement without prior notice to Customer if Axios reasonably
suspects that Customer has violated any of the restrictions of this provision.
5.4 High-Risk Use Cases.THE SOFTWARE IS NOT INTENDED FOR USE IN HIGH-RISK USE CASES (AS DEFINED BELOW) AND ANY
USE OF THE SOFTWARE BY CUSTOMER IN ANY HIGH-RISK USE CASE IS DONE AT CUSTOMER'S OWN RISK. AXIOS
DISCLAIMS ALL LIABILITY FOR ANY USE OF THE SOFTWARE IN CONNECTION WITH HIGH-RISK USE CASES.As used herein,
a "High-Risk Use Case"is any use case where the failure of the Software could cause serious risk of harm to persons
or property,such as use of the Software for communications related to medical emergencies,national emergencies,
weather alerts,and military applications.
5.5 Availability Limitations. The Software may be temporarily unavailable due to scheduled or emergency maintenance.
Axios is not responsible or liable for any failure or unavailability of the Software resulting from factors beyond Axios'
reasonable control,including (i) failures in any telecommunications, network or other service or equipment outside
Axios'direct control (including Customer's systems),and (ii)a Force Majeure Event(as defined in Section 12.5 below).
5.6 Monitoring and Response. Axios has the right, but not the obligation, to monitor Customer's use of the Software
(including the Customer Content therein) in order to (i) ensure proper functioning of the Software, (ii) detect abuse,
and (iii) to enforce its rights under this Agreement. If Axios reasonably believes that Customer has materially violated
any provision of Sections 3.1, 3.2, 3.5, or 5.3 of this Agreement, Axios may immediately and without prior notice to
Customer(a) remove the offending Customer Content from the Software; (b) suspend Customer's Accounts;and/or
(c) terminate this Agreement for cause. Axios will use commercially reasonable efforts to provide prompt notice to
Customer after taking such steps.
5.7 Software Modifications. AAos reserves the right to modify or discontinue any features, functionality, services, or
products associated with the Software at any time,with or without notice to Customer(a "Software Modification").
Customer shall have thirty (30) days following the release of any material Software Modification to assess its impact.
If Customer reasonably determines that a Software Modification materially and adversely impacts Customer's use of
the Software, Customer may (as Customer's sole remedy) terminate their Software subscription and receive a pro-
rata refund of pre-paid Software subscription fees. Customer's continued use of the Software beyond the thirty (30)
days following a Software Modification release will indicate Customer's acceptance of the Software Modification.
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6. DATA PROCESSING&SECURITY
6.1 Data Processing by Axios.If Axios processes any personally identifiable information or personal data of any individual
pursuant to this Agreement (such as the names and email addresses of Customer's Users or Recipients), such
processing is done in the capacity of a processor or service provider to Customer.Axios shall process such data solely
in accordance with this Agreement,Customer's lawful instructions,and any applicable data privacy and protection
laws. For the purposes of this provision,the terms"personal data", "personally identifiable information", "processor",
and "service provider"shall have the meanings set forth in applicable data privacy and protection laws.
6.2 Security. Axios shall maintain, throughout the Term, technical and organizational security measures appropriate to
the scope and nature of the data and information processed in connection with the Software and Professional
Services.Additional information about Axios HQO security measures may be provided upon request. While Axios will
maintain reasonable,industry standard security controls, Customer acknowledges and accepts that transmission of
data over the Internet is never completely secure from interception or interference,and Axios cannot guarantee the
security of data transmitted to or from the Software or Axios.
6.3 No Sensitive Personal Data. CUSTOMER SHALL NOT, UNDER ANY CIRCUMSTANCES, INPUT INTO THE SOFTWARE OR
OTHERWISE PROVIDE AXIOS WITH PERSONAL DATA OR PERSONAL INFORMATION WHICH COULD BE DEEMED
"SENSITIVE" OR "SPECIAL" UNDER ANY APPLICABLE DATA PROTECTION AND PRIVACY LAWS, INCLUDING (WITHOUT
LIMITATION) FINANCIAL ACCOUNT INFORMATION, GOVERNMENT-ISSUED IDENTIFIERS, AND PROTECTED HEALTH
INFORMATION.CUSTOMER'S VIOLATION OF THE FOREGOING IS GROUNDS FOR AMOS TO IMMEDIATELY TERMINATE THIS
AGREEMENT FOR CAUSE WITHOUT PRIOR NOTICE TO CUSTOMER.
7. TERM AND TERMINATION
7.1 Term.For Professional Services-the term of performance will be as specified in the Order Schedule or,if not specified,
six (6) months from the Order Schedule effective date (the "Performance Term"). For Software-the subscription will
have an initial term as specified in the Order Schedule or,if not specified, one (1) year(the "Initial Term").Software
subscriptions will automatically renew after the Initial Term for successive one-year periods(each,a "Renewal Term")
unless either party provides written notice to the other of its intent not to renew the Agreement at least thirty(30) days
prior to the start of the next Renewal Term. The Initial Term and any Renewal Terms may collectively be called the
"Subscription Term." The Subscription Term together with any Performance Term may collectively be called the
"Term."
7.2 Termination. Either party may terminate this Agreement(a) for cause if the other party has materially breached this
Agreement and has not cured the breach within thirty (30) days of receiving written notice thereof from the non-
breaching party, or (b) immediately upon written notice in the event of the filing of a petition for bankruptcy or
reorganization by or against the other party or the dissolution or liquidation of the other party.Axios further reserves
the right to terminate this Agreement or any Order Schedule immediately and without prior notice as expressly
provided in this Agreement or in the event of a material breach by Customer which Axios determines, in its sole
discretion, cannot be adequately cured or else would expose Axios,its customers,or any third party to a significant
risk of harm during the cure period.
7.3 Effect of Termination. Upon expiration or termination of this Agreement for any reason, all corresponding rights,
obligations,and licenses of the parties shall cease,except that (a) all obligations that accrued prior to the effective
date of termination (including all payment obligations of Customer) shall survive and (b) any provisions of this
Agreement which by its nature is intended to survive termination, including (without limitation) those of Section 4
(Proprietary Rights) and Sections 9 through 12,shall survive.
8. FEES&PAYMENT TERMS
8.1 Fees.Customer shall pay Axios the Software subscription fees and Professional Services fees in accordance with the
applicable Order Schedule. If no payment schedule is specified in the Order Schedule, then all fees are due and
payable in full upon Customer's execution of the Order Schedule.Axios will not raise fees for the Software subscription
license during the Initial Term except as mutually agreed by the parties. Axios reserves the right to increase the
Software subscription fees at each Renewal Term, provided that Axios shall give Customer at least thirty (30) days'
advance written notice of such fee increase (email accepted).
8.2 Payment Terms. Unless otherwise stated in the Order Schedule,invoices will be in United States dollars.All undisputed
amounts are due and payable by Customer within thirty (30) days of the invoice issuance date. Late payments on
undisputed amounts will be subject to a service charge equal to the lesser of 1.5%per month or the maximum amount
allowed by law. If any undisputed amount owed by Customer under this Agreement is more than fifteen (15) days
overdue, Axios may (without limiting its other rights or remedies) suspend Customer's access to the Software or
Professional Services until payment is made in full.
8.3 Taxes. Fees are exclusive of taxes (including withholding taxes,sales taxes, and value added taxes), fees, duties, or
governmental charges imposed by any taxing jurisdiction ("Taxes"). Taxes are the sole responsibility of Customer. If
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any Taxes must be deducted from any amounts payable or paid by Customer, Customer shall pay such additional
amounts necessary to ensure that Axios receives a net amount equal to the full amount specified in the Order
Schedule.
9. CONFIDENTIALITY
9.1 Confidentiality. The parties acknowledge that, by virtue of this Agreement, each party may receive certain
proprietary or non-public information regarding the other party or its business which derives value from not being
generally known and which the receiving party knows (or reasonably should know based on the contents and
circumstances of the disclosure)was disclosed under an expectation of confidentiality("Confidential Information").
Each party shall: (1) protect the Confidential Information of the other party using a reasonable standard of care; (2)
use the other party's Confidential Information solely to perform its obligations and exercise its rights under this
Agreement; (3) not disclose the other party's Confidential Information to any third party except as provided herein;
and (4) promptly notify the other party upon becoming aware of any unauthorized access or use of its Confidential
Information.Notwithstanding the foregoing,a party may disclose the other party's Confidential Information (a) if the
other party has given its written consent; (b) if and to the extent such Confidential information is required to be
disclosed by law,any regulatory authority,or a court of competent jurisdiction,provided that such party shall,unless
prohibited by law, notify the disclosing party of the requirement of disclosure so that the disclosing party may seek a
protective order or other limitation on disclosure before making such disclosure and shall comply with any protective
order or other limitation on disclosure obtained by the disclosing party; (c) to its professional advisors, attorneys,
auditors,accountants and other agents who are bound by a duty of confidentiality;and(d)to its respective directors,
employees, agents, subcontractors and personnel to the extent necessary to perform its obligations hereunder
(provided that all such persons or entities are bound by obligations of confidentiality similar to those found herein).
The terms of this Agreement will be considered Confidential Information of both parties. Upon termination of this
Agreement for any reason, each party shall promptly destroy or return to the other party all of the other party's
Confidential Information(provided that a party may retain limited copies of the other party's Confidential Information
as may be required by law or its bonafide document retention policy, and further provided that the obligations of
this provision will continue to apply for so long as such Confidential Information is retained).
10. WARRANTIES&DISCLAIMERS
10.1 Software Warranties.Axios warrants that,during the Term,the Software will operate in substantial conformity with the
Documentation. Axios' sole liability, and Customer's sole and exclusive remedy, for any breach of the foregoing
warranty shall be for Axios, in its sole discretion, to (i) use commercially reasonable efforts to provide an error-
correction or work-around for the reported non-conformity,or(ii) terminate this Agreement and provide Customer a
pro-rata refund of any prepaid Software subscription fees. Axios shall have no obligation with respect to a Software
warranty claim unless notified of such claim promptly and within the Subscription Term. The foregoing Software
warranty will not apply if the non-conformity results from factors beyond Axios' reasonable control,including failures
of,or incompatibility with, Customer Systems.
10.2 Professional Services Warranties. Axios warrants that the Professional Services will be performed by reasonably
qualified personnel and in a professional and workmanlike manner. Axios' sole liability, and Customer's sole and
exclusive remedy, for any breach of the foregoing Professional Services warranty shall be reperformance of the
Professional Services.
10.3 Disclaimers. EXCEPT AS PROVIDED UNDER THIS AGREEMENT AND THE DOCUMENTATION, THE SOFTWARE AND
PROFESSIONAL SERVICES ARE PROVIDED"AS IS"AND"AS AVAILABLE"WITH ALL FAULTS,WHETHER OR NOT IMMEDIATELY
APPARENT.TO THE FULLEST EXTENT PERMITTED BY LAW,AND EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 10,AXIOS
HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SOFTWARE AND THE PROFESSIONAL
SERVICES,INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY,TITLE, NON-INFRINGEMENT,FITNESS FOR
A PARTICULAR PURPOSE, OR WARRANTIES IMPLIED BY USAGEOF TRADE OR CUSTOM OF DEALING. WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING,AXIOS DOES NOT WARRANT THAT: (i)THE USE OF THE SOFTWARE WILL BE SECURE,
TIMELY, UNINTERRUPTED, ERROR-FREE OR VIRUS FREE; (ii) THE SOFTWARE WILL OPERATE IN COMBINATION WITH ANY
OTHER HARDWARE,SOFTWARE,SYSTEM OR DATA; (III) DATA OBTAINED BY CUSTOMER THROUGH THE SOFTWARE WILL BE
ACCURATE AND COMPLETE; (iv) ALL REPORTED DEFECTS WILL BE CORRECTED; (v) THE SOFTWARE OR PROFESSIONAL
SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS; OR (vi) USE OF THE PROFESSIONAL SERVICES OR
SOFTWARE WILL DELIVER ANY SPECIFIC RESULTS, INCLUDING IMPROVED NEWSLETTER ENGAGEMENT, IMPROVED
SUBSCRIBER RETENTION,OR INCREASED PROFITS.
11. INDEMNIFICATION&LIMITATION OF LIABILITY
11.1 By Customer. Customer shall indemnify, defend and hold harmless Axios and its parent company, subsidiaries,
affiliates, officers, employees, agents, partners, suppliers, and licensors from and against any liabilities,judgments,
damages, losses, fees, fines, and costs (including court costs and reasonable attorneys' fees) ("Losses") arising in
connection with any third-party claim, demand, suit, or action ("Claim") alleging Customer's breach of any
representation,warranty or covenant of this Agreement.
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11.2 By Axios. Axios shall defend Customer and its parent company, subsidiaries, affiliates, officers, employees, agents,
and partners from and against any third-party Claim alleging that the Software infringes on a third party's United
States patent, copyright, trademark, or trade secret (an "Infringement Claim") and shall indemnify and hold
Customer harmless against any Losses in connection therewith which are finally awarded against Customer by a
court of competent jurisdiction or arise from a court-approved settlement or binding mediation or arbitration. If
Customer's use of the Software is, or in Axios' opinion is likely to become,the subject of an Infringement Claim, or if
Axios otherwise determines it to be commercially advisable,Axios may: (a)substitute the allegedly infringing element
of the Software with functionally similar software; (b) procure for Customer the right to continue using the Software;
or(c)terminate this Agreement and provide Customer a pro-rata refund of prepaid Software subscription fees.Axios
shall have no duty to indemnify or defend an Infringement Claim to the extent the alleged infringement arises from
Customer's: (i) alteration or modification of the Software; (ii) use of the Software in combination with other non-Axios
products, services, hardware, software or processes except as permitted in the Documentation; (iii) use of the
Software in violation of this Agreement;or(iv) failure to implement a patch or fix provided by Axios that would have
render the Software non-infringing. THIS SECTION 11 SETS FORTH AXIOS' SOLE LIABILITY AND CUSTOMER'S SOLE AND
EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM.
11.3 Indemnification Process. A party seeking indemnification under this Agreement (the "Indemnified Party") must
provide the party from whom indemnification is sought (the "Indemnifying Party") with: (a) prompt notice of any
Claim (and in any event notice in sufficient time for the Indemnifying Party to respond without prejudice); (b) the
exclusive right to control the defense and settlement of such Claim;and (c) such assistance as may be reasonably
requested by the Indemnifying Party,at the Indemnifying Party's expense.The Indemnified Party reserves the right to
participate in the defense of any Claim with counsel of its choosing at its own expense.The Indemnifying Party may
not settle a Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld or
delayed) unless such settlement(i) involves only the payment of monetary damages by the Indemnifying Party;and
(ii) includes a full release of responsibility and liability for the Indemnified Party.
11.4 Limitations of Liability. EXCEPT WITH REGARDS TO (1) CLAIMS FOR INDEMNIFICATION, (11) CUSTOMER'S INFRINGEMENT
OF AXIOS INTELLECTUAL PROPERTY, OR (III) THE WILLFUL MISCONDUCT OF THE PARTY SEEKING TO LIMIT ITS DAMAGES
HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY,BASED ON ANY THEORY OF LAW,EQUITY,
TORT,CONTRACT OR OTHERWISE,FOR: (A)SPECIAL,INDIRECT,INCIDENTAL, PUNITIVE,OR CONSEQUENTIAL DAMAGES,
INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF DATA, OR COSTS OF
COVER, IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE;OR (B) DAMAGES EXCEEDING THE TOTAL AMOUNT OF THE FEES PAYABLE TO AXIOS BY CUSTOMER DURING
THE TERM. AXIOS' MAXIMUM AGGREGATE LIABILITY FOR INDEMNIFICATION CLAIMS SHALL NOT EXCEED TWO (2)TIMES
THE FEES PAYABLE UNDER THE ORDER SCHEDULE GIVING RISE TO THE CLAIM.
12. GENERAL TERMS
12.1 Interpretation. As used herein: (a) the terms "including" and "includes" mean "including, but not limited to" and
"includes without limitation"; (b) the phrases "such as" or"for example" are followed by non-inclusive lists and shall
be read as"such as(or for example),but not limited to";(c)the term"herein"or"hereunder"refers to the Agreement
as a whole and not a specific provision; and (d) terms appearing in the singular include the plural, and terms
appearing in the plural include the singular.The section headings and subheadings used herein are intended solely
for convenience of reference and are not to be used in the interpretation of any provision.
12.2 Notices. All notices under this Agreement shall be in writing and will be deemed duly given: (i) when received, if
personally delivered;(ii)the day after being sent,if sent for next day delivery by recognized overnight delivery service;
(iii) upon reply by phone or non-automated email confirming receipt,if sent by email;or(iv)three(3) days after being
sent by certified or registered mail,return receipt requested. Notices to Customer will be sent to the address on the
Order Schedule.Notices to AAos will be sent to Axios Media Inc.,Attn:Legal Department,3100 Clarendon Blvd#1300,
Arlington,VA 22201 with a copy to legal@axios.com.The parties may designate other addresses for notice from time
to time by written notice to the other.
12.3 Assignment. Customer may not assign this Agreement or any of its licenses, rights or duties under this Agreement
Without the prior written consent of Axios. Subject to the previous sentence, the rights and liabilities of the parties
hereto will bind and inure to the benefit of their respective successors and assignees.
12.4 Publici .Axios may reference Customer in lists of Axios HQ@ customers published on the Axios HQ website and in
Axios HQ promotional materials. Customer consents to its inclusion in such lists and grants Axios a limited license to
use Customer's tradename,trademark and logo for such purposes.
12.5 Force Maieure. Except with regards to Customer's payment obligations, neither party will be liable for any failure or
delay in its performance under this Agreement resulting from causes beyond its reasonable control,including(without
limitation) fire, epidemic, flood, earthquake, riot,war, terrorism, labor issues, infrastructure failure, sabotage, acts of
God, or governmental, civil or military action ("Force Majeure Event"). During a Force Majeure Event,the affected
party's performance shall be extended for the duration of the delay or failure,provided that the affected party must
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(i) give the other party prompt written notice of the Force Majeure Event;and (ii)use reasonable efforts to mitigate
or correct its failure or delay in performance. If a Force Majeure Event prevents Axios' performance under this
Agreement for more than thirty(30) days,Customer may terminate the Agreement and receive a pro-rata refund of
fees paid in advance.
12.6 Independent Contractors.The parties to this Agreement are independent contractors,and nothing contained in the
Agreement will be construed as creating a partnership,joint venture,co-ownership,or other joint undertaking.
12.7 Non-Solicitation. During the Term of this Agreement and for one (1) year thereafter, Customer shall not directly or
indirectly solicit for employment, employ, or engage for services any person who was employed by Axios during or
after the Term. The term"solicit"does not include general job postings not targeted at Axios'employees.In the event
of a breach of this non-solicitation provision, Customer agrees to pay Axios liquidated damages equal to the
applicable Axios'employee's annual salary.
12.8 Governing Law and Jurisdiction.This Agreement shall be governed by the laws of the State of Virginia without regard
to conflict of law principles.Any dispute arising out of this Agreement shall be brought before the federal and state
courts sitting in Alexandria,Virginia,and each party expressly consents to the personal jurisdiction of such courts and
waives any objection to venue.The United Nations Convention on Contracts for the International Sale of Goods shall
not apply to this Agreement.
12.9 Dispute Resolution.The parties agree to negotiate any dispute in good faith for at least thirty(30) days prior to filing a
claim in court. Each party agrees to use commercially reasonable efforts to minimize any damages that may be
incurred as a result of the other party's breach of this Agreement. To the fullest extent permitted by applicable law,
Customer hereby irrevocably waives any and all right to a trial by jury in any legal proceeding arising out of or in
connection with this Agreement. The prevailing party in any action to enforce this Agreement will be entitled to
recover its attorneys' fees and court costs in addition to any damages awarded. Except as otherwise expressly
provided in the Agreement,each right and remedy in this Agreement is in addition to any other right or remedy, at
law or in equity. Any claim by Customer against Axios shall be brought within twelve (12) months of the events giving
rise to the some.
12.10 Eauitable Remedies. Notwithstanding Section12.9 above, either party may seek equitable relief from any court of
competent jurisdiction,without the necessity of notifying the other party or posting any bond,to restrain or prevent a
breach or threatened breach of confidentiality or an infringement of their intellectual property rights.
12.11 Waiver.The failure of either party to enforce its rights under this Agreement at any time or for any period will not be
construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any
other right or remedy.
12.12 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable,the
unenforceable provision shall be modified to reflect its original intent and economic effect.If such modification is not
possible,the provision will be struck.In either instance,the remainder of the Agreement shall remain unmodified and
in full force and effect.
12.13 Entire Agreement.This Agreement,including the Exhibit and Order Schedule(s),constitutes the entire understanding
between the parties,and supersedes all prior discussions, representations, understandings, or agreements between
the parties with respect to the subject matter herein. In the event of a conflict between the terms of this Agreement
and the terms of an Order Schedule,the terms of this Agreement shall prevail unless the Order Schedule specifically
references the provision of this Agreement to be superseded, in which case the revised terms shall apply only with
regards to the Software and Professional Services provided under such Order Schedule. ANY ADDITIONAL OR
INCONSISTENT TERMS INCLUDED IN ANY RELATED PURCHASE ORDER,CONFIRMATION FORM,STATEMENT OF WORK,OR
SIMILAR CUSTOMER-SUPPLIED DOCUMENT SHALL HAVE NO EFFECT UNDER THIS AGREEMENT, EVEN IF SIGNED BY THE
PARTIES HEREAFTER.Axios reserves the right to change the terms of this Agreement from time to time by updating the
HQ Terms and Conditions and posting the revised terms online and/or in the Software's interface.Any such change
will become effective when so posted. If Customer objects to any such change,Customer's sole recourse will be to
terminate the Agreement within thirty(30) days of the change's effective date and receive a pro-rata refund of fees
paid in advance. Continued use of the Software and Professional Services beyond thirty (30) days of a change
becoming effective indicates Customer's acknowledgement of and agreement to be bound by such change.
Confidential V20210801
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EXHIBIT A
PROFESSIONAL SERVICES TERMS
To the extent the Order Schedule includes Professional Services, the terms of this Exhibit shall apply. These terms are in
addition to (and not in lieu of) the terms in the body of the Agreement; provided that Software-specific provisions of the
Agreement will not apply to the Order Schedule if Customer does not receive access to or use of the Software. Capitalized
terms used herein and not defined will have the meaning set forth in the body of the Agreement.
1. ASSIGNMENT OF AXIOS PERSONNEL. Axios will assign one or more qualified individuals to provide the Professional
Services specified in the Order Schedule (the"Axios Personnel"). Axios reserves the right,in its discretion,to substitute
any Axios Personnel with another, similarly qualified member of Axios' staff without prior notice to or consent from
Customer. If Customer,acting reasonably and in good faith,becomes dissatisfied with any assigned Axios Personnel,
Customer must notify Axios of its complaint in writing (email accepted).Axios and Customer shall work together in
good faith to resolve the complaint within thirty (30) days of such notice,which resolution may include assigning a
different Axios staff member as Axios Personnel.
2. CUSTOMER COOPERATION.Customer must cooperate with Axios in its performance of the Professional Services. Such
cooperation shall include: (a) providing Axios such access to Customer's premises, employees, contractors, and
equipment as reasonably required to provide the Professional Services; and (b) responding promptly to any
reasonable requests from Axios for instructions,information,materials,or approvals in connection with its provision of
the Professional Services.Axios is not responsible for any delay in performance of the Professional Services resulting
from Customer's failure to cooperate with Axios.
3. IN-PERSON PROFESSIONAL SERVICES. Where requested by Customer, Axios may agree to provide the Professional
Services in person at Customer's facilities, rather than remotely. If Axios provides any in-person Professional Services,
Customer shall reimburse Axios for all actual and reasonable travel expenses incurred in addition to the Professional
Services fees set forth in the Order Schedule.Customer shall undertake all reasonable efforts to protect the health and
safety of Axios Personnel while performing any in-person Professional Services, and Customer agrees to defend,
indemnify, and hold Axios harmless from and against any claims for personal injury or death brought by any Axios
Personnel to the extent caused by Customer's breach of the foregoing covenant.
4. CANCELATION. If Customer cancels any Professional Service, Customer shall remain liable for all associated fees, plus
any costs and expenses actually incurred by Axios in association therewith. Professional Services not scheduled by
Customer during the performance period specified in the Order Schedule are considered cancelled by Customer.
5. PROFESSIONAL SERVICE-TRAINING.
5.1. Training.Axios will provide remote or in-person training to Customer on how to create Smart Brevity@ enabled
Newsletters,with or without use of the Software,if and as specified in the applicable Order Schedule (each,a
"Training"). Each Training will be scheduled as mutually agreed by the parties. A Training may not be
rescheduled during the two (2) week window prior to the agreed Training date except where Axios deems it
necessary due to circumstances beyond Axios' reasonable control.
5.2. Training Materials. If Axios provides Customer with guidance documents,instructions, and training materials in
connection with the Training("Training Materials"),such Training Materials may only be used by the business units
or number of individuals specified in the Order Schedule. Customer may not make the Training Materials
available to any other business units,internal groups,teams or employees without Axios'express written consent.
Under no circumstances shall Customer make the Training Materials available to third parties.
5.3. Recordings.Axios does not allow Trainings to be recorded. If Axios consents in writing to allow a Training to be
recorded,such recording will be considered part of the Training Materials.
5.4. Rights and Licenses. The Training, Training Materials, and all intellectual property, knowledge, know-how,
methods and information contained therein are considered Axios Intellectual Property.Customer receives only
a limited, non-transferable license to use the contents of the Training and the Training Materials in accordance
With this Agreement.
6. PROFESSIONAL SERVICE-EDITORIAL CONSULTING.
6.1. Editorial Consulting. Axios will provide editorial support services to Customer's editorial writers to assist the
Customer in the application of Smart Brevity@ to its Newsletters if and as specified in the Order Schedule
(collectively, "Editorial Consulting").
6.2. Scope of Support.Editorial Consulting is purchased in multi-hour blocks,as specified in the OrderSchedule. Axios
HQ@ editors will provide up to the number of Editorial Consulting hours set forth in the Order Schedule or,if not
specified, no more than two (2) hours of review per Newsletter. Editorial Consulting services will be performed
only on weekdays,excluding Axios company holidays.
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6.3. Software Access. To the extent that Customer accesses or uses the Software in connection with the Editorial
Consulting services, all terms of the Agreement specific to the Software shall apply to Customer's access and
use thereof.
6.4. Ownership and Responsibility for Content All Newsletter content will be authored by Customer's own editorial
writers and the Axios HQ@ editors will merely provide editorial support to improve adherence to Smart Brevity@
best practices.All Newsletter content is considered Customer Content under the Agreement, and Axios is not
responsible or liable for the Customer Content by virtue of providing Editorial Consulting.
7. PROFESSIONAL SERVICE- HIRING CONSULTING.
7.1. Hiring Consulting.Axios will provide Customer with certain consulting assistance regarding sourcing, evaluating
and hiring one or more persons to internally perform editorial services related to creation of Customer's
Newsletters,if and as specified in the Order Schedule ("Hiring Consulting").
7.2. Scope of Services. Hiring Consulting may consist of the following services(as mutually agreed by Customer and
Axios and captured on the Order Schedule): (i) help crafting a job description for a Newsletter author,and/or
(ii) assistance in evaluating candidates for the Newsletter author role. As part of the candidate evaluation
process, Axios may review writing samples and resumes, interview candidates, and/or provide test writing
assignments for candidates to perform, each to the extent specified in the Order Schedule. Any test writing
assignments are Axios Intellectual Property.
7.3. Disclaimers. Notwithstanding anything to the contrary in the Agreement,all Hiring Consulting is provided on an
"as-is"basis,without any warranty whatsoever,express or implied.Customer is solely responsible for any decisions
pertaining to the employment of any potential candidate (whether or not recommended by Axios), and such
decisions will be at Customer's sole risk.Axios disclaims all liability whatsoever in connection with the employment
decisions of Customer,whether or not informed by the Hiring Consulting service.
8. PROFESSIONAL SERVICES-OTHER.
8.1. Other Services. Axios may agree to provide additional services if and as specified in the applicable Order
Schedule ("Other Services").
8.2. Additional Terms. Axios reserves the right to impose additional terms and conditions on such Other Services as it
may make available to Customer from time to time. Such terms may be incorporated into the applicable Order
Schedule or added to the Agreement via an amendment.
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