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Terms of Service

(Revised September 10, 2019)

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Welcome to Axial. We appreciate your interest in the service. It is important that you read, understand and adhere to the following Terms of Service.

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General Terms and Conditions

The following Terms of Service (collectively with our Privacy Policy, the “ToS”) govern your use of the Platform. The ToS applies to all users of the Platform.

All use of the Platform is subject to the ToS and, in some cases, a Membership Agreement (as defined below) that you may have executed with us. By accessing and using the Platform, you acknowledge, accept, and agree to the ToS and all other terms, conditions, procedures and policies that may be published from time to time on the Platform by us, each of which is incorporated by reference, including providing truthful and accurate responses to inquiries by Axial from time to time.

The ToS represents a binding contract between you and Axial, and together with any other agreements between you and Axial, including without limitation, a Membership Agreement, that govern your use of products, features, contents, applications and services available on the Platform. Specifically, if you or the company that you represent entered into or will enter into a Membership Agreement, the terms and conditions of the ToS are hereby incorporated into the Membership Agreement by this reference as if fully stated therein. In the event of a conflict between the ToS and the Membership Agreement, the terms of the Membership Agreement shall control. Each User represents and warrants that you have the authority to adhere to the ToS on behalf of the Member Account. If you do not agree with anything contained in the ToS, you are prohibited from submitting information to, accessing information from, or otherwise utilizing the Platform.Axial reserves the right to change the ToS, from time to time, upon notice to Members and Users, who will be notified by the email address registered with Axial or via the Axial platform. In the case of any changes to Pricing, Payments and Billing, Axial will notify the primary user of your Member Account by email 30 days before any change goes into effect. Use of the Platform 30 day following an email notification or an electronic posting announcement of any changes to the ToS shall be deemed to be acceptance thereof by you. In the ToS, we may refer to a User / Member Account /customer /reader / entity as “you”. You agree to keep business information and trade secrets of Axial, including, but not limited to the terms and pricing set forth herein, and any user account information confidential until such information becomes known to the public generally without your fault and except to the extent that disclosure may be required by law, regulation or legal process.

Definitions

The following Terms of Service cover two (2) types of entities:

  • A “Member Account” is defined as companies, entities or individuals using Axial to market or source private capital market transaction opportunities;
  • A “User” is defined as an individual who uses the Platform as part of a Member Account and is an authorized person or agent of the Member Account;

A Member Account may have one or more Users.

Additional Definitions

“Accredited Investor” within the meaning of Rule 501 of Regulation D under the Securities Act.

“Acquisition Transaction” shall mean, in connection with any transaction or series of related transactions in which (i) in excess of fifty percent (50%) of the selling company’s voting power is transferred, or the sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, by the selling party or any subsidiary of such party, of all or substantially all the assets, or intellectual property of the selling party and its subsidiaries taken as a whole (whether by merger, consolidation or otherwise), of one or more subsidiaries of such party if substantially all of the assets of the selling party and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, or (ii) the sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, by the selling party or any subsidiary of such party, of all or substantially all the assets, or intellectual property of a division or business unit of a selling party.

“Axial”, “we”, “us” or “our” means Axial Group LLC, its subsidiaries, affiliates, assignees and its and their officers, directors, employees and agents.

“Content” means the contents of the Platform and any products or services provided or sold by Axial, including the Platform’s look and feel, text, graphics, logos, button icons, images, audio and video clips (if any) and software, as well as the compilation of businesses, advisors, investors and lenders on the Platform.

“Consummated Transaction” means, with respect to a Shared Deal Opportunity, the earlier of, (i) the closing of an Acquisition Transaction as contemplated in clause (A) of the definition of Transaction Consideration, (ii) the initial payment of consideration or purchase for the securities as contemplated in clause (B) of the definition of Transaction Consideration, and (iii) the initial payment of cash or other consideration by the acquirer or lender or the event upon which any amounts are made available to be deployed from lender as contemplated in clause (C) of the definition of Transaction Consideration (such date being the “Transaction Close Date”). In the event of an earn-out, the part of the Transaction Consideration allocated to the earn-out provision shall be deemed “Completed”.

“Deal Opportunity” means an opportunity to either sell a business or seek capital (equity and/or debt) that is offered on the Platform by a Member Account.

“Membership Agreement” means any membership agreement or other signed agreement (including, without limitation, an order form) that a Member Account has entered into with Axial.

“NDA” means any non-disclosure, confidentiality or other similar agreement, including any supplements or amendments thereto.

“Per Deal Fee” means a fee charged to a Member Account for each Shared Deal Opportunity as may be set forth in the Membership Agreement of the Member Account.

“Platform” means the products, features, contents, applications and services provided by Axial on its websites.

“Securities Act” means the Securities Act of 1933, as amended, together with the rules and regulations promulgated thereunder.

“Shared Deal Opportunity” is a Deal Opportunity that is shared with a Member Account.

“Success Fee” means a “success fee” as contemplated in the Membership Agreement that is paid to Axial in connection with a Consummated Transaction.

“Tail” means the eighteen (18) month period following the receipt of a “Shared Deal Opportunity.”

“Transaction Consideration” shall mean as follows:

(A) in the case of an Acquisition Transaction, the total enterprise valuation of the transaction, including without limitation, the value of the acquired securities, assets or license, whether paid for in cash, stock or any other non-cash consideration, plus any debt (whether directly or arranged for through a third party, seller debt, and/or assumed debt in such transaction) and any earn-out or similar contingent payment provided for in the definitive documents.

(B) in the case of any equity investment (that provides for the acquisition of at least twenty-five percent (25%) of the voting control) or acquisition of assets, license or other disposition of property that is not an Acquisition Transaction, including without limitation, any acquisition of equity securities or securities that are convertible into equity securities (e.g., preferred stock or convertible debt and upon the conversion of such securities the holder(s) acquire at least twenty-five percent (25%) (in the aggregate) of the voting control of the issuer; convertible debt shall be deemed an equity investment for purposes of the ToS) or joint venture, the total value of any acquired securities, assets, license or other disposition or property or joint venture whether paid for in cash or stock or any other non-cash consideration, plus any third party debt arranged for in connection with the securities acquisition.

(C) In the case of the deployment or arrangement of debt, excluding convertible debt contemplated in clause (B) above, (whether directly or indirectly through a third party), the total maximum amount of capital contractually agreed to be deployed at the time of the closing of the applicable debt transaction, regardless of the timing of actual cash distributions (including capital deployed after termination of your membership).

(D) In the event of an earn-out or similar contingent payment with respect to any transaction contemplated by clauses (A), (B) and (C), the part of the Transaction Consideration allocated to the earn-out provision or similar contingent payment shall be deemed “Completed”, at the time the earn-out or similar contingent payment is funded or paid (whether in cash or other assets).

Uses of the Platform and Key Limitations

The Platform is designed so that officers and owners of private companies, duly authorized mergers and acquisition professionals, private investors, and corporate development professionals can confidentially identify, connect, and be found by one another for the purposes of business development, originating and managing investment or merger and acquisition opportunities, and identifying and engaging with relevant capital partners. Any Member Account that wishes to confidentially share a Deal Opportunity shall be permitted to do so as long as the Deal Opportunity complies with the ToS and the User adheres to the Axial Code of Conduct. Member Accounts and Users of the Platform use a variety of tools to initiate such processes, including document creation and hosting tools, deal communication and messaging tools, and a variety of reporting, workflow and analytic tools. Axial is not involved in any way with the actual transaction between buyers and sellers, and does not render any investment or legal advice in connection therewith.

None of the information submitted on the Platform with respect to any Deal Opportunity constitutes a solicitation, offer, opinion, or recommendation by Axial to buy or sell any assets or securities or other financial instruments or to provide legal, tax, accounting, or investment advice or services regarding the suitability or profitability of any security of any kind, investment or transaction. Axial makes no recommendations and offers no opinion in connection with the merit of any Deal Opportunity or the recommendation of any Deal Opportunity to any Member Account. For these reasons, all Users of the Platform agree to be responsible for their own due diligence and the legal and regulatory compliance of any Deal Opportunity, and Axial makes no representation or assurance about such compliance. Axial is not responsible for information or material made available through the Platform that contain typographical errors or inaccuracies. In addition, Axial does not control the information or material provided by other users that is made available through the Platform.

Users are required to provide true and accurate information, and to update and maintain such information, but Axial cannot and does not confirm the accuracy of information provided. In addition, Users and Member Accounts may be asked, from time to time, to certify certain information regarding their Member Accounts, including User information, information on transactions they are currently working on and information relating to Consummated Transactions.

Eligibility to Use Axial

The Platform is offered only for your use, and not for the use or benefit of any third party. We may, in our sole discretion, refuse to offer the Platform to any person or entity and change our eligibility criteria at any time. You are solely responsible for ensuring that as applicable to you, the ToS is in compliance with all applicable laws, statutes, ordinances, rules and regulations. Any breach of the ToS shall cause the Member Account and each User that caused any such breach to be liable to Axial for any and all damages suffered by Axial. Your right to access the Platform will be immediately revoked where (i) the ToS or use of the Platform is prohibited, (ii) you materially breach the ToS, (iii) to the extent the offering, sale or provision of the Platform conflicts with any applicable law, statute, ordinance, rule or regulation, or (iv) as otherwise contemplated in the ToS.

Axial reserves the right to refuse service, terminate relationships, and/or cancel membership in its sole discretion.

If you do not agree to the ToS, the Membership Agreement, the Privacy Policy, or any other subsequently referenced agreements or documentation, you must not access the Platform.

Age Requirement

In order to create a Member Account or be a User of the Platform, you represent and warrant that you are at least 18 years of age. If you are under age 18, you may not, under any circumstances or for any reason, use the Platform.

Accredited Investor Certification

In order to participate in the Platform as an investor or lender, you must be an “Accredited Investor” and you hereby represent and warrant that you are an Accredited Investor. Accredited Investor is defined (as of the date referenced above) to include the following categories of investors (among others):

  • a corporation, partnership, or charitable organization (within the meaning of section 501(c)(3) of the Internal Revenue Code), not formed for the specific purpose of acquiring the securities offered, with total assets exceeding $5 million;
  • an entity in which all the equity owners are Accredited Investors;
  • a natural person who has individual net worth, or joint net worth with the person’s spouse, that exceeds $1 million at the time of such person’s purchase of the securities, excluding the value of the primary residence of such person;
  • a natural person with individual income exceeding $200,000 in each of the two most recent years or joint income with a spouse exceeding $300,000 for each of those years and a reasonable expectation of reaching the same income level in the current year;
  • a bank, savings and loan association, insurance company, registered investment company, registered broker or dealer, business development company, or a licensed Small Business Investment Company (as such terms are described in Rule 501);
  • an employee benefit plan, within the meaning of the Employee Retirement Income Security Act of 1974, if a bank, savings and loan association, insurance company, or registered investment adviser makes the investment decisions, or if the plan has total assets in excess of $5 million or if such plan is a self-directed plan, with investment decisions made solely by persons that are accredited investors;
  • a director, executive officer, or general partner of the issuer of the securities being offered or sold or any director, executive officer or general partner of a general partner of that issuer; or
  • a trust with total assets in excess of $5 million, not specifically formed to acquire the securities offered, whose purchases are directed by a sophisticated person (as such term is described in Rule 501).

Your Promises of Conduct

Registration

When signing up for the Platform and creating a Member Account or User account on the Platform, you must provide accurate and complete information and keep your Member Account or User information updated. You shall not:

  • select or use as a username a name of another person with the intent to impersonate that person;
  • use as a username a name subject to any rights of a person other than you without appropriate authorization;
  • use, as a username, a name that is otherwise offensive, vulgar or obscene.

You are solely responsible for the activity that occurs on your Member Account, and for keeping your User password secure. You may never use another person’s User account or registration information for the Platform without authorization from the Member Account associated with such User. You must notify us of any change in your eligibility to use the Platform (including any changes to or revocation of any licenses from state authorities), breach of security or unauthorized use of your Member Account or User account. You should never disseminate or disclose login information for your Member Account or User account other than to authorized persons. Only Users shall have the ability to delete a Member Account or their own account.

Acceptable Use

By accepting the ToS and using the Platform, you agree not to:

  • Knowingly enter any false information about a company or person;
  • Intentionally misrepresent your relationship to a deal or transaction;
  • Provide any false or misleading information to Axial or any other User or Member Account; or
  • Engage in any fraudulent activity of any kind.

If Axial permits you to input information into the Platform, you may not (and may not permit any third party to) input any information or content that:

  • you know is false, misleading, untruthful or inaccurate;
  • is promotional in nature, including solicitations for funds or businesses, without the prior written authorization of Axial;
  • constitutes junk mail, spam, chain letters, pyramid schemes or the like;
  • is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, deceptive, fraudulent, invasive of another’s privacy, offensive, profane, hateful or is racially, ethnically or otherwise objectionable as determined by us in our sole discretion, or otherwise violates the legal rights of others;
  • you do not have the right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
  • infringes any patent, trademark, trade secret, copyright, right of publicity or other proprietary rights of any party or violates any law or contractual duty;
  • impersonates any person or entity, including any of our employees or representatives; or contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, gain access to or limit the functionality of any computer software or hardware, or telecommunications equipment.

You shall not: (i) take any action that imposes or may impose (as determined by us in our reasonable discretion) an unreasonable or disproportionately large load or burden on our (or our third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Platform or any activities conducted on the Platform; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Platform (or other accounts, computer systems or networks connected to the Services); (iv) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the website; (v) harvest or scrape any Content from the Platform; or (vi) otherwise take any action in violation of the ToS.

You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Platform (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction; (ii) modify, translate, or otherwise create derivative works of any part of the Platform; or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder.

We reserve the right to access, read, preserve, and disclose information (other than any information that you designate as confidential) to the extent necessary to (i) satisfy any applicable law, regulation, legal process or governmental request; (ii) enforce the ToS, including without limitation, investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to user support requests; or (v) protect the rights, property or safety of us, our Members, Users and the public.

Pricing, Payments & Billing

Specific pricing shall be established between Axial and the Member Account as part of the Member Account acceptance process and set forth in the Membership Agreement.

Axial does not charge Member Accounts for use of the tools necessary to research and privately share Deal Opportunities with other Member Accounts for the purposes of seeking an acquirer, investor, or lender.

In certain cases, Axial may charge Member Accounts to originate Shared Deal Opportunities. If you reasonably believe that you should not have received a Shared Deal Opportunity, you can notify us by email at [email protected]. Axial will review the materials and determine whether any refunds are appropriate.

Membership Fees & Services

Member Accounts will only be charged Per Deal Fees or other monthly Premium Support services if the Member Account elects to procure them as set forth in their Membership Agreement. Unless otherwise indicated via their Membership Agreement, the term of the Membership begins with the recorded time of the online acceptance of the ToS by the first User of a Member Account (the “Start Date”) and renews for successive twelve (12) month periods. A Member Account may terminate any Premium Support services by sending an email at any time prior to the applicable renewal date (email: [email protected]).

Per Deal Fees

Member Accounts that have elected to procure Per Deal Fees will be billed as set forth in their Membership Agreement.

Unless otherwise specified, Axial will bill your Member Account monthly for Per Deal Fees for any Shared Deal Opportunities occurring in the previous calendar month.

If Member Accounts pay up-front for a set number of Shared Deal Opportunities, Axial will thereafter bill the Member Account monthly for additional Shared Deal Opportunities received on a Per Deal Fee basis. Axial will notify your Member Account in advance when you have used up your Pre-Paid Shared Deal Opportunities. Member Accounts have the ability in the Platform to turn off Shared Deal Opportunities at any time in addition to being able to set a limit on the number of Shared Deal Opportunities received each month.

Success Fees

Where Success Fees Apply

When set forth in a membership agreement, Member Accounts shall pay to Axial a Success Fee in connection with a Consummated Transaction whether the Member Account closes the Shared Deal Opportunity itself or through a newly created entity formed for the purposes of closing such transaction.

Requirement to Disclose

You agree to notify Axial within five (5) business days, via the Platform or via email (email: [email protected] or via your Axial Account Manager) when any of the following events have occurred:

  • You or your firm / company have submitted or entered into any agreement, memorandum (for example, a written IOI, written term sheet, written LOI, or similar equivalent), or other understanding with respect to a Shared Deal Opportunity.
  • The occurrence of a Consummated Transaction.

You also agree to keep Axial informed from time to time of the estimated closing timeline for a Shared Deal Opportunity and the Transaction Consideration (as defined above), including the timing of any future contingent or deferred payments related to an earnout.

Each Member Account agrees and acknowledges to furnish updates and information required to be disclosed (see section – Requirement to Disclose) pursuant to the ToS regarding the applicable Shared Deal Opportunity, and that for these purposes, Axial shall be treated, if necessary, as a representative of each Member Account or any affiliate of the Member Account.

To the extent a Member Account elects to terminate Membership at any time, the Member Account remains contractually obligated to the above disclosure requirements with respect to any still active Shared Deal Opportunities for the entirety of the Tail Period.

Member Accounts who fail to adhere to the above disclosure requirements may be in “material breach” of the ToS as contemplated and may be suspended, flagged, or removed from the Axial platform at Axial’s sole discretion.

Success Fee Rates and Payment Terms

The Success Fee payable to Axial is equal to the Fee Rate (specified in the Membership Agreement) multiplied by the Transaction Consideration in connection with any Consummated Transaction consummated during the Tail. For the avoidance of doubt, the Tail is eighteen (18) months from the date that the Shared Deal Opportunity was first shared via the Platform. If the definitive documentation is signed during the Tail period and the transaction is consummated after the Tail period, the Success Fee shall still be owed.

Any Success Fees due shall be paid in full by wire transfer or other immediately available funds and are due at closing. Provided that the Member Account has adhered to the “Requirement to Disclose” section, a grace period of five (5) business days shall not be unreasonably withheld. The portion of a Success Fee associated with any earn-out provision shall become payable at the time the earn-out is funded or paid (whether in cash or other assets).

Past due amounts shall bear a late payment charge, until paid, at the rate of 24% per annum or the maximum amount permitted by law, whichever is less. All payment obligations are non-cancelable and fees paid are non-refundable. In addition, any and all fees and expenses incurred in connection with Axial’s collection of any fees owed hereunder, including without limitation the Success Fee, shall be paid by the person investing, acquiring or lending with respect to a Shared Deal Opportunity. Such fees and expenses shall include Axial’s reasonable costs and disbursement and attorneys’ fees incurred in enforcing its rights hereunder. Costs shall include, and not be limited to, losses, damages, costs and expenses, including, without limitation, reasonable attorneys’, accountants’, investigators’, and experts’ fees and expenses, sustained or incurred in connection with the collection of any such amounts.

Remedies for Failure to Disclose and Pay Success Fees on Consummated Transactions

In the event that a Member Account fails to notify Axial of a successfully Consummated Transaction originated through the Platform and Axial separately, and through its own means, discovers the Consummated Transaction, the Member Account shall owe Axial two (2x) times the Fee Rate percentage (specified in the Membership Agreement).

We reserve the right to access, read, and disclose information (other than any information that you designate as confidential) to the extent necessary to enforce the payment of Success Fees.

Where Per Deal Fees and Success Fees Do Not Apply

Axial is not entitled to Per Deal Fees or Success Fees only when a Member Account can demonstrate two-way communication regarding a Deal Opportunity prior to such Deal Opportunity becoming an Axial Shared Deal Opportunity. It is the burden of the Member Account to provide proof that the Deal Opportunity was received prior to the date and time of the Deal Opportunity being deemed a Shared Deal Opportunity. In the event that you believe that a Per Deal Fee or Success Fee is not owed to Axial, you are required to notify Axial via email ([email protected] or [email protected]) within five (5) business days of receipt of the Shared Deal Opportunity from Axial. In the event that such notice is not made within such five (5) days, the Member Account consents to pay the appropriate fees as contemplated in the ToS.

For the avoidance of doubt, if you discover or otherwise learn of a Deal Opportunity through the Axial Platform, proceed to interact entirely outside of the platform with the counterparty, and the Deal Opportunity becomes a Consummated Transaction subject to the Tail in the ToS, the Success Fee is still owed to Axial.

Special Terms only for Buy-side M&A Advisors

Investment banks and M&A advisory firms may only use Axial to originate Deal Opportunities (i.e. receive teasers) on behalf of buy-side clients with whom they have a formal legally binding retainer arrangement. Deal Opportunities received on behalf of these retainer clients may not be shared with non-retainer companies under any circumstances.

Intellectual Property and Copyright.

The Contents of the Platform are the property of Axial or its content suppliers, and are subject to the copyright or other intellectual property rights of Axial and to the terms of licenses held by Axial. Such intellectual property is protected by federal and state law.

User License

Subject to the ToS, we grant each user of the Platform a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of accessing and using the Platform. Any unauthorized use, reproduction, modification, distribution, transmission, republication, display or performance of the Content and software on this Platform, or of any products or services sold by Axial, is strictly prohibited. You may copy information from the Platform only as strictly necessary for your own use of the Platform. Otherwise, no portion of the Platform may be reproduced, duplicated, copied, sold, resold, licensed, rented or otherwise exploited for any commercial purpose that is not expressly permitted by Axial. The commercial use or public dissemination of any information and data gathered from Axial is strictly prohibited, unless specifically authorized in writing. Any violation of the foregoing may subject you to compensatory and punitive damages, and shall specifically also entitle Axial to equitable relief, in addition to any other available remedies.

User Content

All Content added, created, uploaded, submitted, distributed, or posted to the Platform by Users (collectively, “User Content”), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent and warrant that you have all rights to provide the User Content and grant the licenses set forth below to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, droit moral rights, trademarks, contract rights, or any other intellectual property or proprietary rights.

License to Axial

You grant to Axial a limited, non-exclusive, non-sublicensable and non-transferable license to use any information disclosed to Axial, whether it is deemed User Content or information disclosed pursuant to the section “Requirement to Disclose,” solely for purposes of marketing the Platform, provided that in no event shall Axial use the actual names of the parties. In addition, Axial shall be permitted to aggregate all such information for internal or commercial purposes, provided that in no event shall any such information sold include the actual names of the parties unless that information is already in the public domain.

Availability of Content

We do not guarantee that any Content will be made available on the Platform or through the Services. Axial reserves the right, in its sole discretion, to (i) remove, edit or modify any Content, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities that such Content infringes or appears to infringe on intellectual property rights owned by others or if we are concerned that you may have violated the ToS), or for no reason at all; and (ii) to remove or block any Content from the Platform.

Copyright Infringement

If you believe that any material contained in the Platform infringes your intellectual property, you should notify Axial of the alleged infringement in accordance with the following procedure: Send any notification of claimed copyright infringement to [email protected]. To be effective, the notification must be in writing and include the following information: (i) physical or electronic signature of the owner or authorized agent of the owner of the allegedly infringed work; (ii) identification of the allegedly infringed work; identification of the material that is claimed to be infringing and reasonably sufficient information for Axial to locate the material; (iii) contact information of the notifying party, such as address, telephone number and email; (iv) a statement that the notifying party has a good faith belief that the use of the material in the manner complained of is not authorized by the owner of the allegedly infringed work, its agent or the law; and (v) a statement, under penalty of perjury that the information in the notification is accurate and the notifying party is the owner or authorized agent of the allegedly infringed work.

Hyperlinks

The Platform may contain links to third party websites, and other websites may contain links to the Platform. Any such link is provided only as a convenience. The inclusion of any link does not imply an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by Axial of any information contained in any third party website. In no event shall Axial be responsible or liable for the information contained on that third party website, your use of or inability to use such website and any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such information, products or services available on or through any such website. You should also be aware that the terms and conditions of such website and the website’s privacy policy may be different from those applicable to your use of the Platform.

Third Party Content

Certain portions of the Platform, including, without limitation, information on certain private companies, may contain unedited or third party content. All postings, messages, text, images, links to third-party websites or other materials published or otherwise made available through this section (the “Third Party Content”) are the sole responsibility of the person(s) who originated such Third Party Content. Axial has no obligation to monitor, does not control and does not investigate or validate such Third Party Content; provided that Axial reserves the right at all times (but will not have an obligation) to remove any Third Party Content. By using this Third Party Content, you agree to not rely on the Third Party Content in connection with your use of the Platform and understand that you may be exposed to Third Party Content that is, without limitation, inaccurate, inappropriate, misleading, unlawful, offensive or otherwise objectionable, and that Axial makes no representations or warranties regarding the Third Party Content and is not responsible or liable in any manner for the Third Party Content or the conduct, whether online or offline, of any User. The Third Party Content does not constitute legal or financial advice and must not be used in the place of legal counsel or financial due diligence. You should independently evaluate and verify all Third Party Content.

Key Legal Points

Termination

We may terminate your access to all or any part of the Platform at any time. All provisions of the ToS which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, all applicable fees owed to Axial, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

If service is terminated or suspended by Axial due to breach by you or any User of a Member Account, including for non-payment, then you still owe, and must pay to Axial, the entire amount payable for such term, and any past due amounts will accrue interest.

Limitations of Liability

Any material downloaded, accessed or otherwise obtained through the Platform is obtained at your own discretion and risk, and you will be solely responsible for any damage to your computer system or loss of data that results therefrom. EXCEPT AS EXPRESSLY SET FORTH HEREIN, AXIAL AND ALL OF ITS THIRD-PARTY LICENSORS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY (I) WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE AS TO THE PLATFORM, INCLUDING THE CONTENT, INFORMATION, DATA, SOFTWARE, OR PRODUCTS CONTAINED THEREIN, OR THE RESULTS OBTAINED BY THEIR USE OR AS TO THE PERFORMANCE THEREOF; (II) WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; AND (III) WARRANTIES OR CONDITIONS OF UNINTERRUPTED OR ERROR-FREE ACCESS TO OR USE OF THE PLATFORM. AXIAL PROVIDES THE PLATFORM AND ALL COMPONENTS THEREOF ARE PROVIDED ON AN “AS IS” BASIS AND YOUR USE OF THE PLATFORM IS AT YOUR OWN RISK. AXIAL MAKES NO GUARANTEES OR WARRANTIES OF ANY KIND AS TO THE SECURITY, ADEQUACY, COMPLETENESS, SUFFICIENCY, TIMELINESS OR ACCURACY OF ANY CONTENT OR MATERIAL AVAILABLE IN OR THROUGH THE PLATFORM, THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

YOU HEREBY AGREE THAT ANY MONETARY CLAIMS OF ANY KIND ASSESSED AGAINST AXIAL OR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS ARISING OUT OF OR RELATING TO THE USE OF THE PLATFORM SHALL NOT EXCEED (IN AGGREGATE) OF THE GREATER OF (I) THE TOTAL AMOUNT YOU (OR ANY OTHER USER) PAID TO AXIAL FOR THE PLATFORM; OR (II) $500. IN NO EVENT SHALL AXIAL OR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS BE LIABLE TO YOU, OR TO ANY THIRD PARTY, FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, COMPENSATORY OR INDIRECT DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING), EVEN IF ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE. THIS LIMITATION ON LIABILITY INCLUDES, BUT IS NOT LIMITED TO, THE TRANSMISSION OF ANY VIRUSES WHICH MAY INFECT YOUR EQUIPMENT, FAILURE OF MECHANICAL OR ELECTRONIC EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS (E.G., YOU CANNOT ACCESS YOUR INTERNET PROVIDER), UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, STRIKES OR OTHER LABOR PROBLEMS OR ANY FORCE MAJEURE. AXIAL CANNOT AND DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE PLATFORM.

Indemnity

You agree to indemnify and hold harmless Axial, our affiliates and each of our and their respective officers, directors, agents, and employees, from and against any suit, action, claim, demand, penalty or loss, including reasonable attorneys’ fees, made by or resulting from any third party due to or arising out of your (or any third party using your Account or identity in the Platform) use or misuse of the Platform, breach of the ToS or the materials it incorporates by reference, or violation of any law, regulation, order or other legal mandate or the rights of a third party. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.

Choice of Law

You will resolve any claim, cause of action or dispute (together a “claim”) you have with Axial arising out of or relating to the Platform or the ToS or your Membership Agreement exclusively in New York County, New York. The laws of the State of New York will govern the ToS and your Membership Agreement, as well as any claim that may arise between you and Axial, without regard to conflict of law principles. In any dispute arising under the ToS or your Membership Agreement, the prevailing party will be entitled to reasonable attorneys’ fees and expenses.

Arbitration and Class Action Waiver

YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THE TOS, YOUR USE OF THE PLATFORM, FEES OWED, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION IN NEW YORK, NEW YORK UNDER THE STREAMLINED ARBITRATION RULES AND PROCEDURES (“RULES”) OF JAMS THEN IN EFFECT, BY ONE COMMERCIAL ARBITRATOR WITH SUBSTANTIAL EXPERIENCE IN RESOLVING INTELLECTUAL PROPERTY AND COMMERCIAL CONTRACT DISPUTES, WHO SHALL BE SELECTED FROM THE APPROPRIATE LIST OF JAMS ARBITRATORS IN ACCORDANCE WITH SUCH RULES, AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.

As an alternative, you may bring your claim in your local “small claims” court, if permitted by that small claims court’s rules and if within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring claims only on your own behalf. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s Account, if we are a party to the proceeding.

This section will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with the ToS.

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of Platform or the ToS must be filed within one (1) year after such claim of action arose or be forever banned, provided that with respect to the payment of the Success Fee, the one (1) year period shall begin upon Axial’s actual knowledge of a Consummated Transaction.

If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this section will be null and void. This section will survive the termination of your relationship with Axial.

Miscellaneous

Email Communication

Axial uses email to communicate with Users. You hereby authorize and agree that Axial may communicate with you via email and you consent to receiving and giving any notice required under the ToS or any other agreement with Axial via email. Axial will use reasonable efforts to honor any request you may have to opt out from receiving emails, but under no circumstance will Axial have any liability for sending any email to any Member Account or User. Electronic notices should be sent to [email protected].

Use of Member Names

With your consent, either in writing or via electronic mail, Axial may share on its websites the existence of a Consummated Transaction to which the Member Account is affiliated.

Severability

Any finding of illegality, invalidity or unenforceability of any provision or term of the ToS shall not affect the legality, validity or enforceability of any other provision or term of the ToS.

Entire Understanding

The ToS sets forth the entire understanding and agreement between the parties with respect to the subject matter herein (excluding the terms and conditions of any Membership Agreement). We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation. You may not assign the ToS or Membership Agreement, or assign, transfer or sublicense your rights, if any, in the Platform without our prior written consent, which will not be unreasonably withheld or delayed. We may assign, transfer or delegate any of our rights and obligations hereunder without consent. A failure to act with respect to a breach by you or others does not waive Axial’s right to act with respect to subsequent or similar breaches. In the event that any provision or any portion of any provision of the ToS or your Membership Agreement shall be held to be void or unenforceable, the remaining provisions of the ToS and your Membership Agreement (and the balance of any provisions held void or unenforceable in part only) shall continue in full force and effect. If you do not agree with any part of these terms and conditions, or you have a dispute or claim against Axial or its supplier or affiliates with respect to the ToS or your Membership Agreement you should immediately refrain from using the Platform. Any non-use of the Platform shall not act as a waiver of fees, penalties, or interest to which Axial may be entitled pursuant to the ToS. No agency, partnership, joint venture, or employment relationship is created as a result of the ToS or your Membership Agreement and neither party has any authority of any kind to bind the other in any respect.

Contact Info

You may contact us at [email protected] or at the following address:

Axial I Attn: Axial Legal
443 Park Avenue South, 8th Floor, New York, New York 10016

Effective Date of ToS: September 10, 2019

Axial

443 Park Avenue S, 8th Floor
New York, NY 10016
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