Terms of Service
Please note: Section 11 of these Terms of Service contain an arbitration provision that applies to all Axial Users and all disputes with Axial. By accepting these Terms of Service, you agree to be bound by the arbitration clause. Please read it carefully.
Table of Contents:
1. GENERAL TERMS AND CONDITIONS
a) Axial may permit you to create a Member Account which may have one or more associated Users (as such terms are defined below). Except as authorized by Axial, each User must be associated with a Member Account. If you are using the platform in connection with a Member Account that is firm, business, entity or organization, you warrant and represent that you have the authority to enter into this Agreement and bind the Member Account to these Terms.
b) These Terms apply to each and every User’s use of the Platform, the Axial Services and any other products, features, contents, applications and services that are made available on or through the Platform. Your use of the Platform may also be governed by a Membership Agreement (as defined below). If you or a representative of your Member Account entered into, or will enter into, a Membership Agreement, the terms and conditions set forth in these Terms are hereby incorporated into the Membership Agreement by this reference. In the event of a conflict between these Terms and the Membership Agreement, the terms of the Membership Agreement shall control.
c) The Platform and Services are available only to, and may only be used by, firms, businesses, entities, organizations and individuals able to form legally binding contracts under applicable law. The Platform is not available to any User whose use thereof has been suspended or revoked. Axial reserves the right to permit or restrict any User’s access to the Platform and/or any Service in its sole and absolute discretion.
d) Your use of the Platform and Services shall be subject at all times to your continued acceptance of these Terms. Axial may terminate a Member Account or reduce membership benefits at any time without cause, notice or liability. Member Accounts are not transferable, and may not be assigned, transferred or delegated (directly or by operation of law) without the prior written consent of Axial.
e) Axial reserves the right to change these Terms, from time-to-time, upon written notice to Members via the email address on file with Axial or through Platform notifications. In the case of any changes to pricing, payments or billing, Axial will notify the User designated as the representative for your Member Account (the “Member Representative”) by email no fewer than thirty (30) days before any such change goes into effect. Use of the Platform thirty (30) days following an email notification or other notice posted on or through the Platform of any change to these Terms or any term of the Membership Agreement shall be deemed your acceptance thereof.
f) You agree to hold in the strictest confidence and take all reasonable precautions to prevent the unauthorized use or disclosure of Axial’s confidential business information and trade secrets, which includes without limitation (i) information that Axial has or will develop, acquire, create, compile, discover or own that has value to its business which is not generally known, (ii) terms and pricing set forth in your Membership Agreement or any other agreement between you and Axial, and (iii) User-specific terms and account information (collectively, “Confidential Information”), until such information becomes known to the public generally through no fault or action by you (or any of your affiliates), and except to the extent that disclosure may be required by law, regulation or legal process.
g) If you do not agree with any of the provisions contained in these Terms, your only remedy is to (i) cease all use of the Platform by your Member Account, and (ii) desist from submitting information to, accessing information from, or otherwise utilizing the Platform.
a) These Terms cover two (2) types of Users:
(i) “Member Accounts” includes businesses, entities, organizations and individuals using the Platform to market, offer, source or identify private capital market transaction opportunities. Member Accounts include both Provider Members and Recipient Members. Any party holding a Member Account may be referred to herein as a “Member.”
(ii) “Users” includes any individual who (A) uses the Platform by, for or on behalf of a Member Account or (B) is an authorized person or agent of a Member Account (for purposes of this Agreement, each Member Account may have multiple Users).
b) Additional Definitions:
(i) “Accredited Investor” has the meaning set forth in Rule 501 of Regulation D of the Securities Act as amended.
(ii) “Acquisition Transaction” means: (A) any transaction or series of related transactions in which more than twenty five percent (25%) of the selling company’s equity and/or 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; (B) any sale, lease, transfer, exclusive license or other disposition, in one or a series of related transactions, by the selling party, or any subsidiary of such party, of all or substantially all of a selling party’s assets or intellectual property; or (C) any of the foregoing that results in the sale, transfer or change in ownership or control of a division or business unit of a selling party.
(iii) “Affiliate” means any person or entity which, directly or indirectly, owns or controls, is owned or controlled by, or is under common ownership or control with the applicable User. “Control,” for purposes of this definition, means possessing, directly or indirectly, the power to direct or cause the direction of the management, policies, and operations of a person or entity, whether through ownership of equity, by contract, or otherwise.
(iv) “Content” means any content (whether created or posted by Axial, a User, a Member Account or any third party) provided on or through the Platform, as well as and any products or services provided or offered by Axial, including the Platform’s look and feel, text, graphics, logos, button icons, images, audio and video clips (if any), software, and compilations of data obtained by Axial through the Platform or the Services.
(v) “Consummated Transaction” means, with respect to a Shared Deal Opportunity, the earliest to occur of: (1) the mutual execution of transaction documents with respect to a Shared Deal Opportunity; (2) the closing of an Acquisition Transaction as contemplated in clause (A) of the Transaction Value definition; (3) the initial payment of consideration or purchase price for securities as contemplated in clause (B) of the Transaction Value definition; or (4) the initial funding or payment of cash or other consideration by the lender or acquirer, or the occurrence of any event upon which any amounts are made available to be deployed from a funding party or lender as contemplated in clause (C) of the Transaction Value definition. For purposes of (1)–(4) above, the foregoing occurrences qualify as the Consummated Transaction whether occurring during the membership period or the Tail Period (such date being the “Fee Trigger Date”).
(vi) “Deal Opportunity” means: (A) any Acquisition Transaction offered through the Platform; (B) any opportunity whereby a Provider Member or any of its affiliates proposes to issue any securities, including equity, debt and/or hybrid securities, warrants, debt offerings convertible to equity, or the right or option to purchase any of the foregoing, in each case whether in a private or public offering; (C) the opportunity to purchase all or part of a business or its assets, or to provide funding or capital through the purchase of stock or other equity for value, services, money or other property; (D) the opportunity to make loans or provide a credit or lending facility; or (E) any similar opportunity to invest in a business that is offered by a Provider Member.
(vii) “Definitive Agreements” means: (A) any letter of intent, memorandum of understanding, term sheet or any other similar document or offer with respect to any Shared Deal Opportunity; or (B) any closing documents or instruments executed in connection with a Consummated Transaction.
(viii) “Member Representative” means the User designated to serve as the Member Account representative in all communications with Axial. The Member Representative will be responsible for receiving communications from and communicating Deal Opportunity updates to Axial on behalf of the Member Account. The Member Account may replace the designated Member Representative at any time by providing written notice to Axial (which may be by email to [email protected]).
(ix) “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.
(x) “NDA” means any non-disclosure, confidentiality or other similar agreement, including any supplements and amendments thereto.
(xi) “Platform” means the products, features, contents, applications and services provided by Axial on its websites.
(xii) “Provider Member” means a Member Account that provides a Deal Opportunity on the Platform.
(xiii) “Pursue” or “Pursuit” means the act of expressing interest in a Shared Deal Opportunity, including without limitation by clicking the ‘Pursue’ button.
(xiv) “Recipient Member” means a Member Account that receives a Deal Opportunity on or through the Platform and/or invests in, acquires, or provides capital with respect to such Deal Opportunity, either directly or through any Affiliate.
(xv) “Securities Act” means the Securities Act of 1933, as amended, together with the rules and regulations promulgated thereunder.
(xvi) “Shared Deal Opportunity” means a Deal Opportunity that is presented to, accessed by or otherwise shared with a Member Account from, by or through the Platform.
(xvii) “Success Fee” means the fee payable by a Recipient Member Account to Axial in connection with a Consummated Transaction, payable in United States dollars, which is calculated by multiplying the Transaction Value by the percentage specified in the Membership Agreement of each participating Member Account (including each of their respective Affiliates).
(xviii) “Tail Period” means the eighteen (18) month period following the receipt by a Recipient Member of a Shared Deal Opportunity.
(xix) “Transaction Value” means:
(A) The total enterprise valuation (TEV) of the transaction including without limitation the value of the acquired equity (including securities convertible into equity), or assets, whether paid for in cash, stock or any other non-cash consideration, plus the value of any promissory notes, loans, investments, supply, license or royalty agreements, covenants not to compete, consulting agreements or employment agreements with owners (or their Affiliates) in excess of market, leases or rents payable to owners (or their Affiliates) in excess of market, and any other economic benefits, rights, property or interests, including payments contingent upon future events or conditions;
(B) In the case of the deployment or arrangement of debt financing, excluding convertible debt contemplated in clause (A) 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 any ownership interest); and
(C) Any earn-out or similar contingent payment (in cash, equity and other consideration) provided for in the Definitive Agreements (or any agreement associated with the Definitive Agreements, including without limitation consulting agreements and side letters) that are contingent on the performance of an acquired business or acquired assets, as the case may be, in any transaction contemplated by clauses (A)or (B), above, (collectively, “Contingent Payment(s)”).
3. USES OF THE PLATFORM AND KEY LIMITATIONS
a) The Platform is designed so that owners, officers and designated representatives of private companies, mergers and acquisitions advisors, private investors, and others corporate finance professionals can confidentially identify and connect with one another for the purposes of developing business opportunities, originating and managing investments, merger and acquisition opportunities, and identifying and engaging with potential capital partners. Any Member Account that wishes to confidentially share a Deal Opportunity shall be permitted to do so provided the Deal Opportunity complies with these Terms, and further provided that any User sharing a Deal Opportunity adheres to the Axial Code of Conduct. The Platform and the Services may include features such as document creation and hosting tools, communication and messaging features, and a variety of reporting, workflow and analytic tools for enabling interactions with other users and evaluation of Deal Opportunities. Axial is not involved in any way with the negotiation or consummation of any transaction sourced, circulated, evaluated or transacted through the Platform; Axial does not render investment or legal advice in connection with any transaction.
b) 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, 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. For these reasons, all Users agree to be responsible for conducting their own due diligence and their own legal and regulatory review of any Deal Opportunity which is sourced or otherwise identified through the Platform.
c) Axial is not responsible for the accuracy or completeness of any information or material made available through the Platform. Users are required to provide true and accurate information, and to update and maintain such information. However, Axial does not validate, endorse or have any control over information submitted by you or any User or Member Account and accepts no responsibility whatsoever in connection there with. Information submitted through the Platform is not necessarily reviewed by Axial prior to sharing, or at any time. If Axial elects, in its sole discretion, to monitor information posted by Users, Axial nonetheless (a) assumes no responsibility for its accuracy or completeness; (b) assumes no obligation to modify or remove any inappropriate or inaccurate Content; (c) exercises no direct control over the conduct of the User submitting such information; and (d) assumes no responsibility to monitor other information posted by any other User(s). Notwithstanding the foregoing, 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. If Axial makes such a request, you agree to respond promptly, accurately, and completely.
4. ELIGIBILITY TO USE AXIAL
a) 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 or certain Services to any person or entity and to change our eligibility criteria at any time. You are solely responsible for ensuring that your activities on the Platform comply with all applicable laws, statutes, ordinances, rules and regulations. Your right to access the Platform will be immediately revoked in the following circumstances: (i) these Terms, or your use of the Platform, is prohibited; (ii) you breach these Terms; (iii) to the extent a Deal Opportunity, or any transaction promoted through the platform, conflicts with any applicable law, statute, ordinance, rule or regulation; or (iv) as otherwise contemplated in these Terms. In addition to all other rights and remedies of Axial expressly set forth in these Terms, a Member Account determined to be in breach of these Terms shall be liable to Axial for all of Axial’s out-of-pocket costs and expenses related to any such breach.
c) In order to create a Member Account or become a User on the Platform, you represent and warrant that you are at least eighteen (18) years of age. If you are under eighteen (18) years of age, you are not permitted to use the Platform.
d) Accredited Investor Certification
(i) In order to use 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 of these Terms) to include the following categories of investors (among others):
(A) 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;
(B) an entity in which all the equity owners are Accredited Investors;
(C) 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;
(D) 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;
(E) 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);
(F) 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;
(G) 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
(H) 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).
e) Member Representative
(i) Each Member Representative shall be an individual authorized to enter into contracts on behalf of the associated Member Account. If you are the Member Representative for your Member Account, you warrant and represent that you are authorized to enter into this Agreement on behalf of such Member Account.
(ii) Axial reserves the right to terminate a Member Account (and to terminate access to all Users associated with the Member Account) if a Member Account fails to replace a Member Representative who ceases to be an authorized representative or appoints a Member Representative who at any time does not comply with these Terms or the Membership Agreement.
(iii) The assent of the Member Representative to the terms of this Agreement and the Membership Agreement shall be binding on all employees of the Member Account.
5. YOUR COMMITMENT TO OUR CODE OF CONDUCT
(i) When you sign up for the Platform by creating a Member Account or becoming a User, you must provide accurate and complete information, and you must keep your Member Account and/or User information updated. You shall not be permitted to:
(A) select or use as a username a name of another person with the intent of impersonating that person;
(B) use as a username a name subject to any rights of a person other than you without appropriate authorization; or
(C) create or use a username that in the reasonable judgment of Axial is misleading, offensive, vulgar or obscene.
(ii) You are solely responsible for the activity that occurs through your Member Account and for keeping your User credentials secure. You may never use another person’s User account or registration information to access 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 required by any regulatory authority or any corporate change), breach of security or unauthorized use of your Member Account or User account. You should never disclose login information for your Member Account or User account other than to authorized persons.
b) Acceptable Use
(i) By accepting these Terms and using the Platform, you agree not to:
(A) Knowingly provide false information about any User, company or person;
(B) Intentionally misrepresent your relationship with a Member Account, a Deal Opportunity or transaction;
(C) Knowingly provide any false or misleading information to Axial or any other User or Member Account;
(D) Engage in any fraudulent activity of any kind.
(ii) If Axial permits you to provide information on or through the Platform, you may not (and may not permit any third party) to input any information or Content that:
(A) you know is false, misleading, untruthful or inaccurate;
(B) is promotional in nature, including solicitations for funds or services, without the prior written authorization of Axial;
(C) constitutes junk mail, spam, chain letters, pyramid schemes or the like;
(D) 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;
(E) you do not have the right to make available under any law or pursuant to any contractual or fiduciary obligation (such as ‘inside information’, proprietary or confidential information learned or disclosed pursuant to an employment or consulting relationship, or subject to nondisclosure obligations);
(F) knowingly infringes any patent, trademark, trade secret, copyright, right of publicity or other proprietary rights of any party or violates any law or contractual duty;
(G) 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.
c) Prohibited Conduct. No User, directly or indirectly, shall be permitted to:
(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 implement 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;
(vi) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Platform, except to the limited extent applicable laws specifically prohibit such restriction;
(vii) modify, translate, or otherwise create derivative works of any part of the Platform;
(viii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder; or`
(ix) otherwise take any action in violation of these Terms.
d) Data Retention
We reserve the right to access, read, preserve, and disclose information to the extent necessary to:
(i) satisfy the requirements of any applicable law, regulation, legal process or governmental request;
(ii) enforce these Terms, including without limitation, investigating potential violations;
(iii) detect, prevent, or otherwise address fraud, security and technical issues;
(iv) respond to User support requests; or
(v) protect the rights, property or safety of Axial, our Member Accounts, Users and the public.
6. PRICING, PAYMENTS & BILLING
a) General. Specific pricing established between Axial and a Member Account as part of the Member Account acceptance process shall be set forth in the Membership Agreement. Axial does not charge Member Accounts for accessing research tools through the platform or for sharing Deal Opportunities. However, in certain cases, Axial may charge a Member Account if they originate Deal Opportunities through the Platform.
b) Incentives. Axial in its discretion may offer incentives such as credits, discounts, fee adjustments, rebate opportunities and other incentive rewards (collectively “Incentives”) to certain Member Accounts, or certain categories of Member Accounts, to incentivize use of the Platform, in exchange for feedback and reporting, to promote the use of certain features, or for other purposes. Incentives are non-transferrable and cannot be redeemed for cash or other value. Axial has no obligation to issue Incentives or pay any Member Account or any User for unredeemed Incentives.
c) Membership Fees & Services. Your start date for purposes of membership and service fees (and Premium Support fees, where applicable) shall be the date and time that the first Member Account User accepts these Terms by acknowledging his, her or its assent (the “Start Date”) and shall renew automatically for successive twelve (12) month periods unless earlier terminated. A Member Account may terminate any Premium Support services by sending an email at any time prior to the applicable renewal date to [email protected].
d) Success Fees
(i) Where Success Fees Apply: A Recipient Member Account shall be liable for the Success Fee in connection with each Consummated Transaction it sources through the Platform, whether such Consummated Transaction was completed through a Member Account or through any of its Affiliates, or through an entity created for the purpose of participating in investments. Unless expressly authorized by Axial, you may not provide information related to any Shared Deal Opportunity to any third party (other than to investors and service providers in connection with the Member’s evaluation and/or negotiation of a Shared Deal Opportunity). By accessing the Platform or reviewing Shared Deal Opportunities, you acknowledge and agree that your Member Account is liable to Axial for paying the Success Fee in connection with Shared Deal Opportunities that you share with third parties, whether or not the purchaser, lender or investor, as the case may be, in connection with a Consummated Transaction is an Axial Member.
(ii) Success Fee Rates and Payment Terms
(A) Simultaneously with the closing, sale, assignment or other consummation of a Shared Deal Opportunity by a Recipient Member, the Member Account shall be liable (jointly and severally with its Affiliates, successors and assigns) for the Success Fee in an amount equal to the Fee Rate specified in the applicable Membership Agreement multiplied by the Consummated Transaction Value.
(B) The Success Fee will be paid in full by wire transfer or other immediately available funds on the Fee Trigger Date. Notwithstanding the foregoing, if a Member Account has complied with the “Requirement to Disclose” section of these Terms (Section 7, below), the Success fee is due and payable within fifteen (15) days following the Fee Trigger Date.
(C) The portion of any Success Fee associated with Contingent Payment provisions shall be due and payable to Axial at the time such payment becomes due (whether such amount is payable in cash or in kind).
(D) For purposes of calculating the Success Fee, the Transaction Value shall not be contingent upon, or subject to, post-closing adjustment for Contingent Payments (or other performance-based consideration) or negative working capital adjustments. The Success Fee is calculated on the aggregate Transaction Value which shall become immediately due and payable on the Fee Trigger Date in accordance with Subsection (B) above.
(E) In the event Axial becomes aware of the closing, sale, assignment or other consummation of a Shared Deal Opportunity by a Recipient Member from a source other than the associated Member Account, following five (5) days’ written notice to the Member Representative (or to the most recent email address for such Member Account on file with Axial), Axial may use good faith estimates of the Transaction Value if actual data is not available in order to arrive at the Success Fee due to Axial (the “Estimated Success Fee“). Axial may invoice the Member Account for the Estimated Success Fee, plus any other amounts due and payable to Axial hereunder, which amounts shall be immediately due and payable to Axial upon receipt of Axial’s invoice by the Member Account. The Success Fee shall be adjusted and reconciled when Axial receives adequate, verifiable data related to the Consummated Transaction.
(F) If a Shared Deal Opportunity is consummated, or the parties thereto enter into Definitive Agreements, during the Tail Period, the Recipient Member, shall remain liable for the full amount of the Success Fee, including after the expiration of the Tail Period in accordance with the provisions of Section 6(d).
(G) A Member’s obligation to pay the Success Fee as and when due shall survive the expiration or termination of the Membership Agreement or these Terms.
(iii) Delay Liquidated Damages; Limitation on Liability
(A) In the event of any delay in payment of the Success Fee in accordance with Section 6(d)(ii)(B), calculated from the date on which the Success Fee (or Contingent Payment, as the case may be) first becomes due, the Member Account, jointly and severally with its Affiliates, successors and/or assigns (if they have participated in the consummation of any Shared Deal Opportunity), will be liable to Axial in an amount equal to the Delay Liquidated Damages multiple, as shown in the table below, multiplied by the applicable Success Fee, plus interest accruing thereon as set forth in Section 6(d)(vii), which amount shall be due and payable to Axial within five (5) days following written notice to the Member Account:
Time Period Past Due Delay Liquidated Damages
20 Days or More 1.15x the Success Fee
45 Days or More 1.25x the Success Fee
90 Days or More 1.5x the Success Fee
120 Days or more 2x the Success Fee
Notwithstanding the foregoing, subject to Subsection D, below, the Member’s total liability to Axial for Delay Liquidated Damages shall not exceed and is capped at two (2) times the Success Fee payable to Axial with respect to such Consummated Transaction.
(B) Neither Axial nor Member shall be liable to the other party for or in respect of any consequential loss or damage, special or punitive damages or loss of profits suffered or incurred by any other party arising out of, in connection with, or resulting from, these Terms or the Membership Agreement, whether any claim for such loss or damage is based on tort (including negligence), strict liability, contract (including breach of or failure to perform this Agreement or the breach of any representation or warranty hereunder, whether express or implied) or otherwise, except as provided in Section 6(d)(iv), below.
(C) Notwithstanding the foregoing subsection (B), because constantly shifting market conditions and the uniquely unquantifiable nature of the economic damages and losses to Axial caused by late or non-payment of Success Fees make determining precisely the amount of Axial’s compensatory damages difficult or impossible, and in light of the benefit to Axial and Member of the predictability and efficiency of liquidated damages in the event of late or non-payment of Success Fees, Member expressly acknowledges and agrees that in the event of late payment (or non-payment) of the Success Fee (1) any sums payable under such circumstances are stipulated by the parties to be in the nature of liquidated damages and not a penalty, and are acknowledged and agreed to be fair, reasonable and appropriate; (2) such payment represents a reasonable estimate of compensation for a portion of the losses that may reasonably be anticipated from such failure by Member and shall, without duplication, be the sole and exclusive measurement of monetary damages with respect to such circumstances (excluding any investigation fee (Section 7(d)) and interest on past due amounts along with reimbursement of Axial’s costs of collection (Section 6(d)(vi)); and (3) the Member and Axial are sophisticated parties and have agreed to these terms at arm’s length. Accordingly, Member acknowledges that the liquidated damages provision contained in this Section 6(d)(iii) are justified, enforceable and not contrary to public policy.
(D) In the event that a Member Account disputes whether a Success Fee is owed to Axial in connection with a Consummated Transaction, the Member Account is responsible for providing documentation reasonably acceptable to Axial that the Consummated Transaction did not originate through Axial in accordance with Subsection (v) below, subject to the timeline set forth therein.
(E) Axial reserves the right to access, read, and disclose Member Account information and communications to the extent necessary to collect the Success Fee, Delay Liquidated Damages and the Investigation Fee.
(iv) When Success Fees Do Not Apply
(A) Axial is not entitled to Success Fees with respect to a Shared Deal Opportunity only when a Member Account can demonstrate: (1) that, prior to a Deal Opportunity becoming a Shared Deal Opportunity, (aa) an investment banker or other third party furnished the Member with information about the seller and the Deal Opportunity, and (bb) the Member had been engaged in an active dialog with the seller (or seller’s advisor, as the case may be) with respect to such Deal Opportunity; and (2) that such member has provided Axial with documentation establishing (to Axial’s reasonable satisfaction) two-way communication with respect thereto. IT IS THE BURDEN OF THE MEMBER ACCOUNT TO PROVIDE EVIDENCE THAT THE DEAL OPPORTUNITY WAS RECEIVED PRIOR TO THE DATE AND TIME OF THE DEAL OPPORTUNITY BECOMING A SHARED DEAL OPPORTUNITY, IN ACCORDANCE WITH THESE TERMS. If you believe that no Success Fee is due or that the Success Fee should be reduced, it is your responsibility to provide written notice to Axial setting forth in detail the facts and circumstances giving rise to the dispute within thirty (30) days following your receipt of the Shared Deal Opportunity. Such notices shall be sent by email to [email protected]. Failure to provide written notice to Axial as and when required under this Section 6(d)(iv) shall be deemed a waiver of this exemption, and the Success Fee shall become due and payable in accordance with these Terms and the Membership Agreement.
(B) For the avoidance of doubt, if you become aware of a Deal Opportunity through the Platform (it thus becoming a Shared Deal Opportunity) and the Shared Deal Opportunity becomes a Consummated Transaction whether on or off the Platform, through the Member Account or any Member Affiliate, the Success Fee is due and payable to Axial in accordance with these Terms unless you provide the notice described in Subsection (A), above.
(v) Special Terms for Buy-Side M&A Advisors. Investment banks and M&A advisory firms may only use Axial to originate Deal Opportunities (i.e. receive teasers) on behalf of buy-side clients with whom they have a formal legally binding retainer arrangement. Deal Opportunities received on behalf of these retainer clients may not be shared with non-retainer companies under any circumstances.
(vi) Other Payment Provisions. Late payments will accrue interest at the rate of 1.5% per month or the highest rate of interest allowed by law (whichever is less), calculated from the date the amount became due until the date that payment is received. The Member Account will also be responsible for any reasonable attorneys’ fees, costs (including without limitation costs associated with arbitration), and expenses incurred by Axial to collect any amounts that are not paid when due. If Customer fails to timely pay any amounts due under these Terms and/or the Membership Agreement, then without limitation of any of its other rights or remedies, Axial may, upon prior written notice to the Member Representative (or such person indicated on the Membership Agreement), suspend access to the Services until Axial receives all past due amounts. All payment obligations hereunder are non-cancelable, and amounts paid to Axial are non-refundable.
e) Third-Party Beneficiary. For purposes of the requirements set forth in this Section 6, Axial shall be deemed a third-party beneficiary to any Consummated Transaction.
f) Suspension / Removal. Any Member Account which fails to adhere to the disclosure and payment requirements set forth herein will be deemed to have materially breached these Terms, and may be suspended, flagged, or removed from the Platform, in Axial’s sole discretion, provided however that the Member’s payment obligations shall survive removal from the Platform and termination of its Membership Agreement.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, AXIAL RESERVES THE RIGHT TO ADJUST MONTHLY PREMIUMS, TRANSACTION FEES, SUCCESS FEES AND COMMISSION RATES IN ITS SOLE DISCRETION UPON WRITTEN NOTICE TO THE MEMBER ACCOUNT.
7. REQUIREMENT TO DISCLOSE
a) Regular Status Updates. The Member Representative shall provide regular status updates and keep Axial reasonably informed of progress with respect to Shared Deal Opportunities.
b) Special Notices. In addition to regular updates, each Member Account shall notify Axial, either through the Platform or by email to [email protected] (or to the email address of the Axial Member Account Manager) within five (5) days following the occurrence of any of the following events, time being of the essence:
(i) Any Member has entered into a letter of intent, memorandum of understanding, term sheet or effective equivalent or has submitted an inquiry or indication of interest (whether written or oral) for a Shared Deal Opportunity that could reasonably be expected to result in a Consummated Transaction (each an “Indication of Interest”) which notice shall include (A) a description of the Shared Deal Opportunity and (B) the material terms of such Indication of Interest; and
(ii) Any Recipient Member has entered into, or assisted any third party entering into, a Consummated Transaction in connection with a Shared Deal Opportunity, which notice shall include the identity of the purchaser(s), a description of the Transaction Value, and payment terms, including the calculation and timing of any Contingent Payments.
d) Investigation Fee. In addition to all other rights and remedies available to Axial under applicable law and this Agreement, Axial shall have the right to levy an investigation fee of six thousand dollars ($6,000) on any Member Account which fails to disclose a Consummated Transaction in accordance with Section 7(b)(ii) (the “Investigation Fee”) in order to reimburse Axial for its costs and expenses related to investigating unreported Consummated Transactions, which amount is immediately due and payable to Axial following written notice to the Member Account (which may be by email to the Member Representative), provided that no Investigation Fee shall be due if the Member Account makes the required disclosure within seven (7) days following such written notice.
e) Survival of Disclosure Requirements. The disclosure requirements set forth in this Section 7 shall survive the expiration or termination of the Membership Agreement and these Terms.
8. INTELLECTUAL PROPERTY AND COPYRIGHT
The Contents of the Platform are owed or licensed by Axial 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.
a) User License. Subject to these Terms, Axial grants each User a worldwide, non-exclusive, non-sublicensable and non-transferable right and license to use (i.e., to download and display locally) Content solely for purposes of accessing and using the Platform and the Services. 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 provided by Axial through the Platform, is strictly prohibited. You may copy information from the Platform only as necessary to utilize the Platform. Except as set forth in the immediately preceding sentence or as expressly authorized by Axial, you may not reproduce, duplicate, copy, sell, license or otherwise exploit the Content for any commercial purpose. The commercial use or public dissemination of any information or data gathered from the Platform or the Services is strictly prohibited. Any breach or threatened breach of the foregoing shall entitle Axial to seek injunctive relief without having to post bond or prove actual damages and may subject you to compensatory and other damages.
b) User Content. All Content added, created, uploaded, submitted, distributed, or posted to the Platform by Users (“User Content”), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. Any User who provides User Content through the Platform represents and warrants that he, she or it (i) has the right to provide the User Content and (ii) is legally permitted to grant Axial a royalty-free, worldwide right to distribute and promote the User Content through the Platform, and that such use will not infringe the rights of any third-party, including without limitation, any privacy rights, publicity rights, copyrights, moral rights, trademark rights, contract rights, or any other intellectual property or proprietary rights.
d) Availability of Content. We do not guarantee that any Content will be made available through the Platform or 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 for no reason; and (ii) to remove or block any Content from the Platform.
e) 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 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.
g) 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 independent legal counsel or financial due diligence. You should independently evaluate and verify all Third-Party Content.
9. TERMINATION; SURVIVAL
The Member Representative may terminate your access to the Platform, and/or the associated Member Account, at any time by written notice to Axial at [email protected], and Axial may terminate your access to all or any part of the Platform, and/or your Member Account at any time. Upon termination: (a) this Agreement and the Membership Agreement will continue to apply and be binding upon you in respect of your prior use the Platform (and any unauthorized further use of the Platform), including payment of any Success Fees, Delay Liquidated Damages, Investigation Fees and any other charges accrued in connection therewith; (b) the provisions of these Terms regarding Disclaimer of Warranties, Limitations on Liability, Indemnification, Confidential Information, and Dispute Resolution, as well as its Miscellaneous Provisions, and all other provisions that, by their nature, should survive termination of this Agreement or the Membership Agreement, will survive such termination; and (c) any rights, remedies, or licenses granted to Axial hereunder will survive such termination.
For the avoidance of doubt, if your use of the Platform or the Services is terminated or suspended by Axial for any reason, any and all amounts owed to Axial by you shall remain due and payable, and shall accrue interest as set forth herein, and Delay Liquidated Damages shall continue to accrue, as though these
Terms remained in effect.
10. MISCELLANEOUS TERMS
a) 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 these Terms 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].
b) 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.
c) Disclaimer of Warranties. THE PLATFORM, SERVICES, FEATURES, PRODUCTS, MATERIALS, CONTENT AND WEBSITE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, WHICH ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW. THE COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE TO ANY USER FOR ANY ACTS OF FRAUD, THEFT, MISAPPROPRIATION, TAMPERING, HACKING, INTERCEPTION, PIRACY, MISUSE, MISREPRESENTATION, DISSEMINATION, OR OTHER ILLEGAL OR UNAUTHORIZED ACTIVITIES OF THIRD PARTIES. YOU UNDERSTAND AND EXPRESSLY AGREE THAT YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY HARM TO YOU, YOUR PROPERTY OR ANY PERSON OR PROPERTY THAT RESULTS FROM YOUR USE OF THE PLATFORM. TO THE EXTENT THAT THE LAW OF YOUR JURISDICTION DOES NOT PERMIT THE DISCLAIMER OF WARRANTIES, THE PLATFORM IS WARRANTED ONLY TO THE MINIMUM EXTENT LEGALLY REQUIRED.
d) Limitations of Liability
(i) Axial shall not be responsible for any damages that may arise in connection with your use of the Platform or these Terms. 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.
(ii) IN USING THE PLATFORM OR THE SERVICES, YOU SPECIFICALLY AGREE THAT YOU WILL NOT HOLD AXIAL, ITS PARENTS, CONTRACTORS, LICENSEES AND AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES OR EMPLOYEES LIABLE FOR ANY DAMAGES, INJURY OR LOSS, INCLUDING ANY DIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR LOST PROFITS, THAT MAY RESULT FROM THE USE OF, OR THE INABILITY TO USE THE SERVICES (OR ANY OTHER DATA, APPLICATION OR LINKED WEBSITE), OR OTHERWISE RELATING TO OR ARISING OUT OF THE WEBSITE OR THE CONTENT, WHETHER IN AN ACTION FOR BREACH OF CONTRACT, NEGLIGENCE, PERSONAL INJURY OR OTHERWISE. THE COMPANY SHALL NOT BE LIABLE EVEN IF IT, OR AN AUTHORIZED REPRESENTATIVE, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF AXIAL AND ITS AFFILIATES (AND THOSE THAT AXIAL WORKS WITH TO PROVIDE THE SERVICES) EXCEED, IN THE AGGREGATE FOR ALL CLAIMS THE AMOUNTS PAID BY YOU TO AXIAL OVER THE TWELVE (12) MONTHS PRECEDING YOUR CLAIM(S) OR ONE HUNDRED DOLLARS ($100), WHICHEVER IS GREATER.
e) Indemnity. Member agrees to indemnify, defend and hold harmless Axial along with its Affiliates, and each of their officers, directors, employees, consultants, advisors, agents and representatives from any and all claims, liability, damages, and costs (including, but not limited to, reasonable attorneys’ fees, costs and expenses) that result from, arise out of or are in any way connected with (i) the use of the Platform by such Member Account, any User associated with such Member Account and any of their successors or assigns, or any other person acting for or on behalf of such person (collectively the “Indemnifying Parties”), (ii) breach of these Terms by any Indemnifying Party, or (iii) infringement by any Indemnifying Party of any Axial intellectual property or (iv) other right of Axial or any person. These Terms will inure to the benefit of the parties and their successors, assigns, licensors and licensees. The Services and all related products and features are designed for personal and legal uses only. It is your responsibility to comply with all national, state and local laws, rules and ordinances when using the Services. You covenant to cooperate fully in the defense of any claim. This provision shall survive the termination of these Terms or your Membership Agreement.
f) Changes to these Terms of Service. We may revise and update these Terms from time to time in our sole
discretion after providing advance written notice to you as prescribed herein. All changes are effective immediately when we post them and apply to all access to and use of the Platform thereafter. Your continued use of the Platform following the posting of revised Terms means that you accept and agree to the changes.
g) Severability. Any finding of illegality, invalidity or unenforceability of any provision or term of these Terms shall not affect the legality, validity or enforceability of any other provision or term of these Terms.
h) Entire Understanding. These Terms set 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). Axial shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
i) Assignment . You may not assign or transfer this Agreement or the Membership Agreement, or assign, transfer, delegate or sublicense your rights, if any, in the Platform, by operation of law or otherwise, without Axial’s prior written consent, which will not be unreasonably withheld or delayed, provided however that a Member Account may be assigned to the purchaser or other transferee of ownership and/or control over the Member Account or all or substantially all of the assets held by such Member Account, subject to receipt by Axial of prior written notice of such assignment or transfer. This Agreement and the Membership Agreement shall be binding upon and shall inure to the benefit of the successors and/or assigns of your Member Account. For this purpose, any Member Account successor or assign (as well as any entity affiliated with a Member Account which consummates a transaction sourced through the Platform by a Member Account) is subject to these Terms and the applicable Membership Agreement. Your Member Account shall remain liable, jointly and severally with any successor or assign for any breach of these Terms or the Membership Agreement and any charges or obligation which accrued prior to the date of the assignment, notwithstanding the assumption by any successor or assign of such liabilities, charges or obligations. Any attempted assignment, delegation or transfer in violation of this Agreement shall be void unless expressly authorized by Axial.
Axial may assign, transfer or delegate any of its rights and obligations hereunder without consent.
j) Miscellaneous. A failure by Axial to act with respect to a breach by a Member Account or any User does not waive Axial’s right to act with respect to subsequent or similar breaches. In the event that any provision of these Terms or your Membership Agreement shall be held to be void or unenforceable, the remaining provisions of these Terms 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 portion of these terms and conditions, or you have a dispute or claim against Axial with respect to these Terms 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, liquidated damages, or interest to which Axial may be entitled. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms or your Membership Agreement and neither party has any authority of any kind to bind the other in any respect.
11. DISPUTE RESOLUTION
a) Choice of Law. This Agreement and all questions arising hereunder shall be determined in accordance with the internal laws of the State of New York, without regard to the choice of law provisions thereof. The parties to this Agreement: (i) agree that all actions or proceedings arising directly or indirectly from this Agreement shall be arbitrated (or litigated as the case may be) before arbitrators or in courts having a situs within the State of New York; (ii) hereby consent to the jurisdiction of any local, state or federal court in which such an action or proceeding is commenced that is located in the State of New York; (iii) agree not to disturb such choice of forum (including waiving any argument that venue in any such forum is not convenient); (iv) agree that any litigation initiated by any party hereto in connection with this Agreement may be venued in either the state or federal courts located in the State of New York; (v) agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law; and (vi) waive the personal service of any and all process upon them and consent that all such service of process may be made by certified or registered mail, return receipt requested, addressed to the respective parties at the address set forth above.
(i) Any controversy, claim, or dispute arising out of, relating to, or in connection with these Terms or this arbitration provision, including, without limitation, the interpretation, performance, formation, validity, construction, breach, termination, or enforcement of these Terms, your use of the Platform, fees owed, and further including any such controversy, claim, or dispute against or involving any of Axial’s officer, director, manager, agent, employee, affiliate, successor, predecessor, or assign (each, a “Dispute”), shall be fully and finally adjudicated by binding arbitration to the fullest extent permitted by law (the “Arbitration”). The seat of the Arbitration shall be New York County, New York. Except as provided herein or by written agreement of you and Axial, the Arbitration shall be administered in the English language by the Judicial Arbitration and Mediation Services, Inc. or its successor (“JAMS”) or, if no longer in existence, another nationally recognized administrator, and conducted in accordance with its Comprehensive Arbitration Rules and Procedures then in effect for Disputes with Member Accounts domiciled in the United States, for Member Accounts domiciled outside of the United States, the International Arbitration Rules and Procedures then in effect (together with the Comprehensive Arbitration Rules and Procedures, the “Rules”). The Arbitration shall be conducted as expeditiously and economically as reasonably practicable. YOU ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY (AND HANDLED INSTEAD BY BINDING ARBITRATION) IN RESPECT OF ANY DISPUTE DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(ii) The Arbitration shall be conducted by one commercial arbitrator with substantial experience in resolving commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators pursuant to the applicable Rules (the “Arbitrator”). Unless all parties to the Arbitration agree otherwise, the Arbitrator shall be an attorney in good standing admitted to practice law in at least one State of the United States.
(iii) Prior to commencing arbitration hereunder, a party shall provide written notice to the other party, which notice shall (A) describe the nature and basis of the claim or dispute, and (B) set forth the specific relief sought. If Axial and the Member Account do not reach an agreement to resolve the claim within fifteen (15) days after the notice is received, you or Axial may commence arbitration proceedings. During the arbitration, the amount of any settlement offer made by Axial or you shall not be disclosed to the Arbitrator.
(iv) The exchange of information in the Arbitration shall be governed by the Rules except as follows: (A) no side shall take the deposition of more than two (2) individuals (including the use of corporate, “persons most knowledgeable,” F.R.C.P. 30(b)(6), or similar deposition notices or devices) unless, upon a showing of extraordinary cause, the Arbitrator permits that side to take a limited number of additional depositions; (B) each side shall be entitled to the limited discovery of documents (including electronically stored information) which are directly relevant and material to the Dispute and are produced in response to a request that is narrowly tailored to minimize both the burden and expense of the responding person and the disclosure of confidential, sensitive, or financial information; (C) no party shall propound interrogatories or requests for admission unless permitted by the Arbitrator upon a showing of extraordinary cause; and (D) upon the request of any party, the Arbitrator shall weigh the anticipated burden or expense of any requested discovery against its likely benefit, and shall impose any reasonable conditions on that discovery, including, without limitation, allocation of the expense of the discovery to the party seeking it.
(v) The Arbitrator shall entertain any demurrer, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or other dispositive motion. The Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator’s complete determination of the Dispute and the factual findings and legal conclusions relevant to it (the “Award”). The Award shall be final, conclusive, and binding on the parties to the Arbitration and judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets. The Arbitrator will apply the governing law set forth in this Section 11 to the merits of any dispute or claim, without reference to rules of conflict of law.
(vi) The administrative costs of the Arbitration, including fees of the Arbitrator, initially shall be split equally between the sides; provided, however, that the Arbitrator may, in his or her discretion, allocate such costs in favor of any prevailing party. Should any party attempt to resolve any dispute arising out of, relating to, or in connection with these Terms by any method other than arbitration pursuant to this Section 11, the responding party shall be entitled to recover from the initiating party all damages, fees, costs and expenses (including attorneys’ fees) incurred as a result of that breach. Judgment upon the award so rendered may be entered in a court having jurisdiction thereof.
(vii) The existence and subject matter of the Dispute and the Arbitration shall be afforded the highest degree of confidentiality permitted by law and the Dispute and all facts and matters relating thereto shall constitute confidential information hereunder. Except only to the extent necessary for a judicial proceeding to enforce, confirm, modify, or vacate an Award, or any other judicial proceeding permitted herein, or as may otherwise be required by law, the Arbitration, the Award, and all related proceedings, evidence, rulings, and testimony, shall remain confidential and shall be used solely for purposes of the Arbitration and adjudication of the Dispute.
(viii) 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 these Terms must be filed within one (1) year after such claim of action accrues 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.
(ix) If the arbitration terms and conditions of this Section 11 are found to be unenforceable by a court of competent jurisdiction, then: (A) the entirety of this arbitration provision shall be null and void, but the remaining provisions of these Terms shall remain in full force and effect; and (B) exclusive jurisdiction and venue for any claims will in the state or federal courts located in and for New York County, New York.
(x) Should any party attempt to resolve any dispute arising out of, relating to, or in connection with this Agreement or the Membership Agreement by any method other than arbitration pursuant to this Section 11, the responding party shall be entitled to recover from the initiating party all damages, fees, costs and expenses (including attorneys’ fees) incurred as a result of that breach of this Agreement. Judgment upon the award so rendered may be entered in a court having jurisdiction thereof.
(xi) Notwithstanding the foregoing agreement to arbitrate, the parties intend that either of them, or both of them, may apply only to the Supreme Court of the State of New York (or, if the Supreme Court of the State of New York declines to accept jurisdiction over a particular matter, any state or federal court within the State of New York) for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, to ensure that any relief sought in the Arbitration is not rendered ineffectual through interim harm and as necessary to enforce the provisions of this Agreement, without breach of this arbitration agreement and without abridgment of the powers of the
c) In any dispute arising under these Terms or your Membership Agreement, the prevailing party will be entitled to reasonable attorneys’ fees and expenses.
12. Contact Information
You may contact us at [email protected] or by mail to:
443 Park Ave. South
New York, NY 10016
Attn: Legal Dept.
[End of Terms of Service]