AxisCare Terms of Service

These AxisCare Terms of Service (the “Terms”) apply to all ordering or sales documents (“Order Form(s)”) that incorporate these Terms (collectively, the “Agreement”) as between Centex AxisCare, LLC, a Texas limited liability company (“AxisCare”) and the entity accepting these Terms and identified in the applicable Order Form(s) (“Customer”). AxisCare and Customer are referred to individually as a “Party” and collectively as the “Parties”. Please read the following carefully as the Agreement forms a binding contract between AxisCare and the Customer accepting these Terms. 

1. Fee for Platform Service
   1.1 Onboarding Fee: Customer will pay AxisCare a one-time “Onboarding Fee” as set forth in the Order Form that is due at signing.  This fee will cover the Onboarding Activities described in each Order Form.
   1.2 Platform Fee: Customer will pay AxisCare the amount set forth in the Order Form for use of the Platform including fees for any additional “Add-Ons” fees (“Platform Fees”) as frequently as described therein. Customer’s Platform Fees include all AxisCare associated fees for the AxisCare Platform core functionality and any Add-Ons described in the Order Form.  The AxisCare Platform together with any Add-Ons are considered the “Platform” for purposes of this Agreement. AxisCare reserves the right to increase the Platform Fees by up to five percent (5%) in each Renewal Term (as defined in Section 2 below). Customer shall also be responsible for any applicable sales or use taxes, if applicable, with respect to Customer’s purchase and use of the Platform. 
   1.3 Payment Terms: Unless otherwise set forth in an Order Form, Customer agrees to pay the Platform Fees by the end of the following month for the prior month’s service (the “Due Date”). Payments received more than fifteen (15) days after the Due Date shall bear the maximum interest allowed by law or eighteen percent (18%) per annum, whichever is less. If Customer provides bank account and routing numbers and elects to auto-draft (ACH), AxisCare will auto-draft (ACH) the account at no additional fee. If Customer chooses to pay by credit card, if allowable by law, a convenience fee of three percent (3%) will be added.  A $25 ACH Return Fee will be applied to any ACH payment returned for any reason, including but not limited to insufficient funds, closed or invalid account, incorrect account information, or account blocks or authorization issues. Customer shall neither make nor assert any right of deduction or set-off from amounts invoiced for the Platform Fees or any ACH Return Fees. AxisCare reserves the right to deactivate Customer’s AxisCare site if any undisputed balance is not received within thirty (30) days following the Due Date. 
2. Term, Renewal Term(s) and Termination
   2.1 Term: The Agreement is effective as of the date noted on the Order Form (“Effective Date”) for a period set forth in the Order Form (the “Initial Term”) and if set forth on the Order Form, shall automatically renew at the end of the Initial Term for additional “Renewal Terms” for the duration as set forth on the Order Form.  The Initial Term and any Renewal Terms are referred to as the “Term”. 
   2.2 Termination at End of Initial Term or Renewal Term.  Either Party may terminate the Agreement, effective at the end of the Initial Term or any Renewal Term, by providing notice to the other Party (“Notice of Termination”) in the manner set forth in these Terms, at least thirty (30) days prior to the commencement of the next Renewal Term.   
   2.3 Early Termination: Customer is responsible for all Platform Fees during the Term of the Agreement even if Customer provides notice of their intention to terminate pursuant to Section 2.2 above. Customer’s AxisCare site(s) will be deactivated upon the date that is thirty (30) days after their Notice of Termination, or as otherwise agreed by both Parties in writing. 
   2.4 Termination: This Agreement may also be terminated by AxisCare on (i) written notice of termination following Customer’s failure to pay amounts due by the Due Date; (ii) for breach of a material provision of this Agreement, after thirty (30) days’ written notice and Customer’s failure to cure; or (iii) upon written notice, if Customer files for bankruptcy or reorganization or fails to discharge an involuntary petition therefore within sixty (60) days after filing. All outstanding and remaining Platform Fees under the Agreement will be accelerated and due immediately upon termination. 
   2.5 Data Retention and Post-Termination Access
           2.5.1 Data Retention and Decommissioning: Customer acknowledges and agrees that, upon termination or expiration of this Agreement, AxisCare shall have no obligation to retain any Customer data beyond a reasonable period and may, in accordance with its privacy policy and data retention policies, decommission and permanently delete such data from its systems. AxisCare does not guarantee the recoverability of any data once it has been decommissioned. Any request for the restoration or reconstruction of decommissioned data shall be subject to (i) AxisCare's sole discretion; (ii) technical feasibility, and (iii) additional fees, as determined by AxisCare. 
             2.5.2 Limited Post-Termination Access: Upon Customer's written request and provided the Platform for a reasonable period of time, not to exceed thirty (30) days. Such access shall be granted solely for the purpose of enabling Customer to access and retrieve Customer data. Access under this provision shall be subject to the payment of a reasonable fee, the terms of which shall be documented in writing, which may be via email, and paid in advance of such access. Customer data shall be made available in AxisCare's standard format. Requests for Customer data in an alternative format shall be subject to AxisCare's technical capabilities and shall incur an additional fee. 
                  
3. Services, Data and Access
   AxisCare will provide Customer access to the Platform for Customer’s use only. AxisCare will register Customer’s Platform website domain and share user identification and passwords to Customer allowing Customer access to the Platform. AxisCare will provide Customer ongoing support for its use of the Platform. Customer Support is available 7:00 AM to 7:00 PM Central Standard Time (CST). Customer is responsible for maintaining the security of the user identification and passwords provided by AxisCare. The ownership of the data in Customer’s AxisCare site shall remain the property of Customer. AxisCare may aggregate, de- identify, or anonymize Customer Personal Data so that it no longer meets the Customer Personal Data definition. AxisCare may use such aggregated, de-identified, or anonymized data for its own research and development purposes and is permitted to share such aggregated, de-identified or anonymized information with third parties for those purposes. AxisCare will not attempt to or actually re-identify any previously aggregated, de-identified, or anonymized data. 
   
   
4. Use of Intellectual Property
   4.1 Use of Platform/AxisCare’s Intellectual Property
             4.1.1 In consideration of the Platform Fees set forth herein, AxisCare hereby grants Customer a non-exclusive, non-transferable license to access and use the Platform for the Term only for Customer’s internal business purposes during the Term in accordance with the terms of this Agreement. 
            4.1.2 Customer shall only use the Platform in accordance with this Agreement and/or as specified in writing by AxisCare from time to time. By way of example and not limitation, Customer shall not, and shall not permit others to: (i) reverse engineer, decompile, or disassemble the Platform; (ii) modify or configure the Platform other than as expressly authorized by AxisCare; (iii) remove or modify copyright notices, digital watermarks, or other notices of AxisCare or its licensors that are included in the Platform; (iv) seek to circumvent or otherwise work-around technical limitations in the Platform; (v) publish the Platform, including any of its features or components, for others to use or copy; (vi) transfer, sublicense, lease, lend, or otherwise provide the benefit of the Platform to any person or entity other than Customer’s authorized Customers; (vii) use or access the Platform to monitor Platform performance or functionality, for competitive or other benchmarking purposes; or (viii) use information received via the Platform for purposes other than in connection with use of the Platform for the benefit of Customer clients to whom such information relates. 
          4.1.3 Except for the license to use the Platform as set forth in this Section 4.1, Customer acknowledges that this Agreement does not, and will not, operate to vest in Customer any right, title or interest in all or part of the Platform. Customer acknowledges and agrees that the Platform is and shall remain the exclusive property of AxisCare. 
          4.1.4 AxisCare makes no representation or warranty as to the validity or enforceability of any of its intellectual property nor as to whether the use of any of the Platform infringes the rights of any third party. 
          4.1.5 Customer shall notify AxisCare within twenty-four (24) hours of any known or suspected improper or wrongful use of any of the Platform which comes to its notice; and use a commercially reasonable degree of care to safeguard the Platform and, at the request of AxisCare, assist in defending and enforcing such rights, but the Customer shall not be obliged to commence legal proceedings on behalf of AxisCare for infringement of the Platform. 
         4.1.6 Any goodwill generated by Customer’s use of any of AxisCare’s trademarks shall inure to the benefit of AxisCare and Customer shall assign the same to AxisCare upon request or, if earlier, the termination of this Agreement, and pending such agreement Customer shall hold such goodwill on trust for AxisCare. 
   
   
5. Use of AI Technologies
   AxisCare affirms that in connection with any use of AI Technologies (defined below) in the provision of its services, it shall implement and maintain appropriate safeguards to ensure that confidentiality, integrity, and security of all Customer data. AxisCare shall not disclose, share, or incorporate Customer data into publicly accessible datasets or shall AxisCare use such data to train public AI models. AxisCare's use of AI Technologies shall comply with all applicable data protection and privacy laws and regulations. "AI Technologies" means any and all machine learning, deep learning, and other artificial intelligence ("AI") technologies, including statistical learning algorithms, models (including large language models), neural networks, and other AI tools or methodologies, all software implementations of any of the foregoing, and related hardware or equipment.
   
   
6.  Confidential Information
   6.1 Confidential Information
   “Confidential Information” means all non-public, confidential or proprietary information of a party, including, but not limited to Platform data, design, layout, software, code, plans, drawings, user names, passwords, documents, business operations, customer lists, pricing, disclosed by one party (“Discloser”) to the other party (“Recipient”), whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement. Each Party shall use the Confidential Information of the other party solely for purposes of performing its obligations and exercising its rights under this Agreement and Recipient shall not disclose or copy the Confidential Information of Discloser unless authorized by Discloser in writing. For the avoidance of doubt, the Platform and all Platform data, design, layout, software, code, plans, drawings and related information are the Confidential Information of AxisCare. Without limiting the foregoing, Recipient will not conduct screen-shares with or provide screen shots to any third parties (including without limitation, competitors), or post Confidential Information to any location allowing public consumption, without the written permission of Discloser. Upon Discloser’s request, Recipient shall promptly return all documents and other materials received from Discloser. Recipient hereby acknowledges and agrees that Recipient’s breach of this Agreement will cause Discloser irreparable damage for which recovery of damages would be inadequate, and that Discloser shall therefore be entitled to obtain timely injunctive relief under this Agreement, as well as such further relief as may be granted by a court of competent jurisdiction, without the necessity of providing a bond. This remedy is separate and apart from any other remedy to which Discloser may be entitled. This Section shall not apply to information that is: 
   

                       (i) in the public domain; 
                       (ii) known to Recipient without obligation of confidentiality at the time of disclosure; or
                       (iii) rightfully obtained by Recipient on a non-confidential basis from a third party.

In addition, the Recipient may disclose Confidential Information to the limited extent required (x) to comply with the order of a court or other governmental body, or with applicable law, provided that, to the extent permitted by law, the Recipient will first give written notice to the Discloser and reasonably cooperate with the Discloser’s efforts to obtain a protective order; or (y) to establish its rights under this Agreement. 

All Customer Confidential Information will be kept private in accordance with AxisCare’s Privacy Policy. 

         7. Non-Solicitation
              7.1 Except as may be provided in a written agreement between the Parties entered into after the date hereof, each Party agrees that during the Term and for a period of two (2) years after the expiration of early termination of the Term, without obtaining the prior written consent of the other Party, neither Party nor any of its Affiliates or Representatives (each, a "Restricted Person") shall directly or indirectly, for itself or on behalf of another person or entity, solicit for employment or otherwise induce, influence, or encourage to terminate employment with the other Party or any of its Affiliates, or employ or engage as an independent contractor, employee of the other Party with whom the Restricted Person had contact or who became known to the Restricted Person in connection with this Agreement (each, a "Covered Employee"), except (i) pursuant to a general solicitation through the media that is not directed specifically to any employees of the other Party unless the solicitation is undertaken as a means to circumvent the restrictions contained in or conceal a violation of this section 7.1 or (ii) if the other Party terminated the employment of such Covered Employee before the Restricted Person having solicited or otherwise contacted such Covered Employee or discussed the employment or other engagements of the Covered Employee.
           7.2 The Parties agree that the duration, scope, and geographical area of the restrictions contained in Section 7.1 are reasonable. On a determination that any term or provision of Section 7.1 is invalid, illegal, or unenforceable, the court may modify Section 7.1 to substitute the maximum duration, scope, or geographical area legally permissible under such circumstances to the greatest extent possible to effect the restrictions originally contemplated by the Parties hereto.

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOSS OF GOODWILL, OR FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR TORT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH CLAIM ARISES IN TORT, CONTRACT, OR OTHERWISE. EXCEPT FOR CLAIMS RELATED TO CONFIDENTIALITY, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, CUSTOMER’S INDEMNIFICATION OBLIGATIONS OR PAYMENT OBLIGATIONS, NEITHER PARTY MAY ASSERT ANY CLAIM AGAINST THE OTHER RELATED TO THIS AGREEMENT MORE THAN TWO (2) YEARS AFTER SUCH CLAIM ACCRUED. EITHER PARTIES’ AGGREGATE LIABILITY TO THE OTHER PARTY AND ANY THIRD PARTY FOR ANY AND ALL CLAIMS OR OBLIGATIONS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL PLATFORM FEES PAID BY CUSTOMER TO AXISCARE UNDER THE SCHEDULE RESULTING IN SUCH LIABILITY IN THE TWO (2) MONTH PERIOD PRECEDING THE DATE THE CLAIM ACCRUED. 

Customer shall indemnify, hold harmless, and defend AxisCare, its officers, directors, employees, and affiliates against any and all claims or actions arising out of or related to (a) the use by Customer of the AxisCare website application and Platform in a manner other than that provided in the Agreement; (b) Customer data uploaded to the Platform or otherwise provided by Customer; and/or (c) any and all claims by third parties arising out of the performance and non-performance of services by AxisCare. Said indemnification shall include all of AxisCare’s losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees, and the costs of enforcing any right to indemnification under this Agreement. 

Subject to the provisions regarding assignment, this Agreement is binding on and inures to the benefit of the Parties and their respective heirs, executors, administrators, legal representatives, and permitted successors and assigns. 

If any action at law or in equity is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to receive, in addition to such other relief as the court may award, its reasonable costs and expenses, including without limitation all attorneys’ fees, expert witness fees, litigation-related expenses court or other costs incurred in such proceeding or otherwise in connection with bringing such suit or action. For purposes of this Agreement, a party is “prevailing” if that party prevails on the central issue raised in the action or claim, regardless of the amount of damages awarded or otherwise owed, if any. A party may prevail by judgment or decision in that party’s favor, consent decree, settlement agreement or voluntary dismissal with or without prejudice. 

Customer and AxisCare expressly agree they are acting as independent contractors and under no circumstances shall any of the employees of one party be deemed the employees of the other for any purpose. Except as expressly authorized herein or in the Order Form, this Agreement shall not be construed as authority for either party to act for the other party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other. 

All notices, requests, consents, claims, demands, waivers and other communications under this Agreement must be in writing and addressed to the other Party at its address set forth on the Order Form (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Except as otherwise provided in this Agreement, a notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the notice has complied with the requirements of this Section. 

This Agreement constitutes the sole and only agreement of the Parties and supersedes any prior understandings or written or oral agreements between the Parties respecting this subject matter. 

The rights and obligations of the Parties set forth Sections 2 (to the extent unpaid Platform Fees are owed), 4.1.4-4.1.6, 6, 7, 8, 9, 10, and 11 and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement. 

Neither this Agreement nor any duties or obligations may be assigned or otherwise transferred by Customer without the prior written consent of AxisCare. For purposes of this Agreement, a merger, consolidation, or sale of all or substantially all of the assets or interests, or other change of control of Customer shall constitute an assignment requiring the consent of AxisCare. This requirement pertains solely to the assignment of this Agreement, not the sale, merger, or consolidation itself. AxisCare shall be entitled to assign this Agreement in the event of a merger, consolidation, or sale of all or substantially all of the assets or interests, or other change of control of AxisCare without consent from Customer. 

This Agreement may be amended only by the mutual written agreement of the Parties to it, in a writing to be attached to and incorporated in this Agreement.  

This Agreement and all related documents including all exhibit attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort or statute are governed by, and construed in accordance with, the laws of the State of Texas, United States of America including its statutes of limitations without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas.  Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall exclusively be instituted in any United States federal court or state court located in the State of Texas in the County of McLennan and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.  

EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES AND APPENDICES ATTACHED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HERE. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF THE OTHER PARTY HAS REPRESENTED, EXPRESLLY OR OTHERWISE, THAT THE OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION (B) IT HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) IT MAKES THIS WAIVER KNOWINGLY AND VOLUNTARILY, AND (D) IT HAS DECIDED TO ENTER INTO THIS AGREEMENT IN CONSIDERATION OF, AMONG OTHER THINGS, THE MTUTAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.  

In the event that any one or more of the provisions contained in this Agreement is for any reason be held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions, and the Agreement will be construed as if the invalid, illegal, or unenforceable provision had never been contained in it. 

Before initiating legal action against the other party relating to a dispute herein, the Parties agree to work in good faith to resolve disputes and claims arising out of this Agreement. To this end, either party may request that each party designate an officer or other management employee with authority to bind such party to meet to resolve the dispute or claim. If the dispute is not resolved within thirty (30) days of the commencement of informal efforts under this paragraph, either Party may pursue formal legal action. This paragraph will not apply if expiration of the applicable time for bringing an action is imminent and will not prohibit a party from pursuing injunctive or other equitable relief to which it may be entitled. 

In no event will AxisCare be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond AxisCare’s reasonable control (a "Force Majeure Event"), including (i) acts of God; (ii) flood, fire, earthquake, other potential disasters or catastrophes, such as epidemics or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; and (vi) national or regional emergency. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of thirty (30) days or more. 

In the event of any failure or delay caused by a Force Majeure Event, AxisCare shall give prompt written notice to Customer stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.