Axya – Terms of Service

Last updated: June 15, 2020

BY USING THE AXYA PLATFORM (AS THE TERM IS DEFINED BELOW), YOU ACCEPT AND AGREE TO BE BOUND BY AND COMPLY WITH THESE TERMS OF SERVICE, AS UPDATED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 3 BELOW TITLED “CHANGES TO THESE TERMS OF SERVICE AND AXYA PLATFORM”. THE TERM “YOU” REFERS TO THE PERSON OR ENTITY VISITING THE WEBSITE (AS THE TERM IS DEFINED BELOW) OR ACCESSING OR OTHERWISE USING THE AXYA PLATFORM (“USE” OR “USING” IN THESE TERMS OF SERVICE WILL MEAN ANY OF THE FOREGOING). IF YOU DO NOT ACCEPT AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, YOU MUST NOT USE THE AXYA PLATFORM.

1. Acceptance of Terms of Service

(a) The following terms of service, including as applicable, all Appendices (the “Terms of Service”) govern your use of: (1) our website located at axya.co (the “Website”); (2) our solution made available through the Website that facilitates the end-to-end procurement process from a request for information or a quote (“RFQ”) to the receipt of parts, and includes the discovery of individuals or entities looking to procure or purchase parts, materials and equipment (“Parts and Materials”, and each such individual or entity, a “Buyer”) with individuals and entities who supply parts, equipment or materials(each, a “Supplier”); and (3) all other products or services provided by us, as described on the Website (collectively, the “Axya Platform”).

(b) These Terms of Service form an agreement between Axya Inc. (“Axya”, “us”, “we”, “our”) and you.

2. Terms Applicable to Buyers and Suppliers

In addition to the terms and conditions set out in the main body of these Terms of Service:

(a) if you are only a Buyer, the provisions set out in Appendix A (Terms Applicable to Buyers) will apply and the provisions set out in Appendix B (Terms Applicable to Suppliers) will not apply;

(b) if you are only a Supplier, the provisions set out in Appendix B (Terms Applicable to Suppliers) will apply and the provisions set out in Appendix A (Terms Applicable to Buyers) will not apply; and

(c) if you are only a Buyer and a Supplier, the provisions set out in Appendix A (Terms Applicable to Buyers) and the provisions set out in Appendix B (Terms Applicable to Suppliers) will apply;

3. Changes to these Terms of Service and Axya Platform

(a) Except where prohibited by applicable law, we reserve the right to change these Terms of Service at any time without notice. Your continued use of the Axya Platform after any changes to these Terms of Service indicates your acceptance of such changes. It is your responsibility to review these Terms of service regularly for any changes.

(b) We reserve the right to change any information, material or content contained on or provided through the Axya Platform at any time, and from time to time, without notice.

4. Usage the Axya platform

(a) We will make available the Axya Platform for your use in accordance with these Terms of Service and the Permitted Use only.

(b) We retain the right, at our sole discretion, to temporarily or permanently deny you access to the Axya Platform (or any part thereof) for violation of these Terms of Service.

(c) You grant to us a perpetual, irrevocable, royalty-free, fully paid-up and worldwide license to access, collect, store, disclose and use any data, information, records and files that you load, transmit to or enter into the Axya Platform for the purposes of: (i) making available the Axya Platform; (ii) developing and improving the Axya Platform; (iii) complying with applicable law; and (iv) complying with our reasonable audit and data retention policies.

5. Confidentiality of RFQs and Response Information

(a) We acknowledge that information you provide to us as part of your use of the Axya Platform, including with respect to any RFQ (“RFQ and Response Information”), may be sensitive.

(b) We will use commercially reasonable efforts to keep your RFQ and Response Information secure, including ensuring security practices and policies are in place that are consistent with industry standards.

(c) We will not disclose your RFQ and Response Information to any third parties, except: (i) to our personnel, affiliates or contractors, legal counsel, auditors or other professional advisors having a “need to know” and are under obligations of confidentiality to us or unless otherwise required by applicable law; (ii) as necessary for us to enforce our rights under these Terms of Service; as required by law or by the order of a court or similar judicial or administrative body; (iii) to potential assignees or successors of ours in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of ours and only under obligations of confidentiality to us. The foregoing does not apply to: (A) information already known or independently developed by us; (B) information that is publicly available through no wrongful act of ours; or (C) information received by us from a third party who was free to disclose it without confidentiality obligations.

6. Ownership

We expressly reserve all rights in and to the Axya Platform (and any part thereof) that are not specifically granted to you under these Terms of Service. You acknowledge and agree that all right, title and interest in the Axya Platform (and any part thereof), all information, material or content provided by us to you in connection with these Terms of Service, and any update, adaptation, translation, customization or derivative work to any of the foregoing, will remain with us (or our third party suppliers, if applicable). The Axya Platform and all materials provided by us hereunder are licensed or made available, but not “sold”, to you.

7. User Accounts

You will be required to sign up for a user account (the “User Account”) using the available interfaces on the Axya Platform and be issued with a username and password login credentials (“User ID”) in order to become a user (“User”) and use the Axya Platform to connect with other Buyers or Suppliers. You are responsible for keeping your User ID secure and will not share your User ID with anyone other than your employees and contractors. You are responsible for all acts or omissions carried out under your User ID. We reserve the right to disable any User Account issued to you at any time in the event that we believe or reasonably suspect that a User ID has been used contrary to these Terms of Service or otherwise misused.

8. Privacy Policy; Privacy Warranty

(a) Please click the following link to review our current Privacy Policy, which contains important information about our practices in collecting, storing, using and disclosing personal information, and which is hereby incorporated into and forms a part of these Terms of Service: https://axya.co/en/privacy-policy/

(b) You agree and warrant that: (i) you will, at all times, comply with all applicable laws (including all applicable privacy laws); and (ii) all information, material or content that you provide to us will contain no information about an identifiable individual or information that is otherwise subject to applicable privacy laws, including the Personal Information Protection and Electronic Documents Act (Canada) or equivalent provincial legislation (“Personal Information”), except for Personal Information in respect of which you have obtained all applicable third party consents, authority and permissions, and have made all applicable third party disclosures, in each case if and as required by applicable laws (including privacy laws), regarding all collection, storage, use, disclosure and transmission, including to us and to all applicable third parties.

9. No Unlawful or Prohibited Use

You will not, without our prior written permission, use the Axya Platform for purposes other than the Permitted Use. Without limiting the generality of the foregoing, You will not, and will not permit anyone else to: (a) “frame”, “mirror” or otherwise incorporate the Axya Platform or any part thereof on any commercial or non-commercial website; (b) access, monitor or copy any part of the Axya Platform using any robot, spider, scraper or other automated means or any manual process for any purpose without our express written permission; (c) violate the restrictions in any robot exclusion headers on the Axya Platform or bypass or circumvent other measures employed to prevent or limit access to the Axya Platform;(d) take any action that imposes, or may impose, in our discretion, an unreasonable or disproportionately large load on the Axya Platform; (e) deep-link to any portion of the Axya Platform for any purpose; (f) remove any watermarks, labels or other legal or proprietary notices included in the Axya Platform; (g) modify or attempt to modify the Axya Platform, including any modification for the purpose of disguising or changing any indications of the ownership or source of the Axya Platform; (h) use the Axya Platform as part of any service for sharing, lending or multi-person use; (i) attempt to assist, authorize or encourage others to circumvent, disable or defeat any of the security features or components, such as digital rights management software or encryption, that protect the Axya Platform; (j) copy, reproduce, modify, distribute, transfer, sell, publish, broadcast, perform, transmit, publish, license or circulate in any form any part of the Axya Platform; (k) create adaptations, translations or derivative works based on the Axya Platform, in whole or in part, or decompile, disassemble, reverse engineer or otherwise exploit any part of the Axya Platform; (l) use the Axya Platform in a manner that violates the rights (including, but not limited to intellectual property rights) of any third party; or (m) upload to or transmit through the Axya Platform any information, images, text, data, media or other content that is offensive, hateful, obscene, defamatory or violates any laws, in each case as determined by our sole discretion.

10. Third Party Websites

The Axya Platform may provide links to third party websites. We do not endorse the information contained on those websites or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability or fitness for any purpose. The content in any linked website is not under our control, and if you choose to access any such website, you do so entirely at its own risk.

11. General disclaimer

USE OF THE AXYA PLATFORM IS AT YOUR OWN RISK. THE AXYA PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE AXYA PLATFORM WHETHER EXPRESS, IMPLIED, STATUTORY OR COLLATERAL, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, QUALITY, ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY OR TIMELINESS OF THE AXYA PLATFORM, OR THAT THE AXYA PLATFORM IS OR WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION.

12. Limitation of Liability

(a) TYPE. IN NO EVENT WILL WE OR OUR OFFICERS, DIRECTORS, AFFILIATES, PARTNERS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUCCESSORS AND ASSIGNS BE LIABLE TO YOU, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, FOR ANY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOST PROFITS, LOSS OF USE OR LOSS OF DATA, PERSONAL INJURY, FINES, FEES, PENALTIES OR OTHER LIABILITIES), WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM OR RELATED TO THE USE OF, OR THE INABILITY TO MAKE USE OF, THE AXYA PLATFORM OR ANY SUPPLIER-BUYER AGREEMENT.

(b) AMOUNT. TO THE EXTENT THE LIMITATION OF LIABILITY IN SECTION 11(a) OF THESE TERMS OF SERVICE DOES NOT APPLY, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF US OR OUR OFFICERS, DIRECTORS, AFFILIATES, PARTNERS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUCCESSORS AND ASSIGNS IN CONNECTION WITH OR UNDER THESE TERMS OF SERVICE, ANY SUPPLIER-BUYER AGREEMENT, OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE AXYA PLATFORM, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO ANY SUPPLIER-BUYER AGREEMENT EXCEED$100 CDN. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE TERMS OF SERVICE WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT.

13. Indemnification

You will defend, indemnify and hold harmless us and all of our officers, directors, affiliates, partners, employees, agents, successors and assigns (collectively, the “Axya Indemnities”) from and against any liabilities, claims, demands, recoveries, losses, damages, fines, penalties or other costs or expenses, (including but not limited to reasonable legal and accounting fees), claimed against the Axya Indemnities by third parties relating to:

(a) your violation of any applicable law (including privacy laws) or the rights of a third party (including, without limitation, privacy or intellectual property rights);

(b) your breach of or failure to perform under any Supplier-Buyer Agreement; and

(c) any misrepresentations made to other Buyers or Suppliers on the Axya Platform.

14. Term and Termination

These Terms of Service will commence on the day you first use the Axya Platform and will continue in force until terminated by either party (the “Term”). Either party may terminate these Terms of Service as follows: (a) we may terminate these Terms of Service at any time and with immediate effect by giving 30 days prior written notice to you by email (at your current email address on file with us) or through the Axya Platform; and (b) you may terminate these Terms of Service upon 30 days prior written notice by requesting (by email or through any then-available interfaces on the Axya Platform) that these Terms of Service be terminated between the parties and all your User Accounts be deleted and by ceasing use of the Axya Platform.

15. Governing Law and Jurisdiction

These Terms of Service will be governed by the laws of the Province of Québec and the federal laws of Canada applicable therein. These laws apply to your use of the Axya Platform, notwithstanding your domicile, residency or physical location. The Axya Platform is intended for use only in jurisdictions where they may lawfully be offered for use.

Except as restricted by applicable law, you hereby consent to the exclusive jurisdiction and venue of courts in Montreal, Québec, Canadain all disputes arising out of or relating to the use of the Axya Platform.

16. General Provisions

(a) These Terms of Service constitute the entire agreement between you and us pertaining to the subject matter hereof and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and us with respect to the Axya Platform. A printed version of these Terms of Service and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

(b) Either party’s failure to insist upon or enforce strict performance of any provision of these Terms of Service will not be construed as a waiver of any provisions or right.

(c) If any of the provisions contained in these Terms of Service are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such provision will be severed from these Terms of Service and all other provisions of these Terms of Service will remain in full force and effect.

(d) It is the express wish of the parties that these Terms of Service and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.

(e) The following Sections, together with any other provision of these Terms of Service which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of these Terms of Service, will survive expiration or termination of these Terms of Service for any reason: Sections 4(c) (License Grant), 4(d) (Ownership), 7 (Privacy Policy; Privacy Warranty), 9 (Third Party Websites), 10 (Disclaimer), 11 (Limitation of Liability), 12 (Indemnification), 15 (Governing Law and Jurisdiction), 16 (General Provisions), 2 to 5 of Appendix A, and 2 to 0 of Appendix B.

Appendix A – Terms Applicable to Buyers

1. Permitted Use

The Axya Platform is provided solely (the “Permitted Use”) to: (a) issue a request for a quote, information, tender or proposal (“RFQ”) for Parts and Materials that you are seeking; (b) review quotes and responses to your RFQ made available by Suppliers with the objective of entering into a Supplier-Buyer Agreement (defined below); (c) connect with matched Suppliers; (d) upload and centralize the documents you require for subcontracting; and (e) follow the progress of the production of your requested Parts and Materials.

2. Supplier-Buyer Agreements with Suppliers

(a) The Axya Platform may present you with responses to your RFQ for Parts and Materials, along with the quotes from Suppliers that you may choose to contact.

(b) At your request, Axya may, at its discretion, facilitate any and all steps of the bid issuance and Supplier matching process, provided you agree to cooperate with us and provide all necessary assistance to complete the steps required to issue a bid and be matched with Suppliers.

(c) If you would like to engage a Supplier through the Axya Platform, you may enter into an agreement with that Supplier by contacting the Supplier directly (such agreement, the “Supplier-Buyer Agreement”).

3. Relationship with Supplier and Payments to Suppliers are Buyer’s Responsibility

(a) Relationship with Suppliers. You acknowledge that you are engaging directly with the Supplier and not us, and that we are not a party to and will be in no way responsible for the payment to, or the performance of, any Supplier under any Supplier-Buyer Agreement. We do not make any representations or warranties of any kind with respect to a Supplier or a Supplier-Buyer Agreement and you acknowledge and agree that we are not an agent or representative of you or any Supplier.

(b) Facilitation of Supplier-Buyer Agreement Fee Payments. We do not facilitate any payments between you and Suppliers under each Supplier-Buyer Agreement (each such payment, the “Supplier-Buyer Agreement Fee”). All Supplier-Buyer Agreement Fee payment arrangements are to be made directly between you and each Supplier.

(c) Supplier-Buyer Agreement Fee Dispute. You will notify Suppliers (and not us) directly of any disagreement with any Supplier-Buyer Agreement Fee and resolve such disputes directly with such Supplier. You acknowledge and agree that we are not responsible for any delayed or incorrect Supplier-Buyer Agreement Fee payments.

4. Supplier Disclaimer

SUPPLIERS ARE INDEPENDENT PERSONS AND NOT PARTNERS, AGENTS OR EMPLOYEES OF OURS. YOU ACKNOWLEDGE AND AGREE THAT WE ONLY PROVIDE QUOTES FROM SUPPLIERS AND HAVE NO CONTROL OVER THE QUALITY, PUNCTUALITY, KNOWLEDGE, TRAINING OR LEGALITY OF THE SERVICES THAT SUPPLIERS DELIVER. WE ARE NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, CONDITIONS, BREACHES OR NEGLIGENCE OF ANY SUPPLIER OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM AND TAKE NO RESPONSIBILITY WHATSOEVER RELATED TO ANY SUPPLIER-BUYER AGREEMENTS ENTERED INTO BY YOU AND ANY SUPPLIERS (INCLUDING ANY DELAYED OR INCORRECT PAYMENTS OR NON-PAYMENTS UNDER SUCH SUPPLIER-BUYER AGREEMENTS).WE DO NOT RECOMMEND OR ENDORSE ANY SUPPLIERS AND RECOMMEND THAT YOU PERFORM YOUR OWN DUE DILIGENCE BEFORE CONTACTING ANY SUPPLIER OR ENTERING INTO ANY SUPPLIER-BUYER AGREEMENT. WE DO NOT TAKE ANY RESPONSIBILITY FOR, AND HAVE NO INVOLVEMENT IN, DISPUTES PERTAINING TO ANY SUPPLIER-BUYER AGREEMENT FEE.

Appendix B – Terms Applicable to Suppliers

1. Permitted Use by Suppliers

The Axya Platform is provided solely (the “Permitted Use”) to: (a) develop a profile that describes the Parts and Materials that you offer, including publishing your rates and timelines for fulfilling a request for a quote, information, tender or proposal (“RFQ”), and your experience and capabilities (each, a “Supplier Profile”); (b) bid on RFQs from Buyers seeking Parts and Materials that you offer, with the objective of being matched by us to Buyers that are interested in entering into a Supplier-Buyer Agreement (defined below) with you; (c) connect with matched Buyers; (d) upload and centralize the documents you require for bidding; and (e) provide progress updates on the provision of your Parts and Materials.

2. Axya Platform Subscription

(a) Subscription. In order to access the Axya Platform features to bid on RFQs for Parts and Materials, you must purchase a subscription to the Axya Platform (the “Subscription”) which will be associated with your User Account.

(b) Subscription Term and Renewal. The Subscription will commence on the Subscription Start Date, and will remain in effect for one year.At the end of the Subscription Term, the Subscription will automatically renew on an annual basis at the fees and terms stated in the then-current Fee Schedule.

(c) Subscription Cancellation. A Subscription may be cancelled by us or by you at any time, effective 30 days after written notice from one party to the other (“Subscription Cancellation Date”). Upon cancellation of a Subscription, you agree to pay us all amounts due to us up through the Subscription Cancellation Date, including without limitation any Subscription Fees and any fees incurred by us on your behalf prior to the Subscription Cancellation Date.

3. Supplier-buyer Agreements with Buyers

(a) The Axya Platform may present you with RFQs from Buyers for Parts and Materials that you may bid on to offer your Parts and Materials.

(b) At your request, Axya may, at its discretion, facilitate any and all steps of the bid issuance and Buyer matching process, provided you agree to cooperate with us and provide all necessary assistance to complete the steps required to issue a bid and be matched with Buyers.

(c) If a Buyer selects your bid and would like to engage you through the Axya Platform, they may enter into an agreement with you by contacting you directly (such agreement, the “Supplier-Buyer Agreement”).

4. Relationship with Buyers and Payments from Buyers are Supplier’s Responsibility

(a) Relationship with Buyer. You acknowledge that you are engaging directly with the Buyer that receives your services and not us, and that we are not a party to and will be in no way responsible for the payment from, or the performance of, any Buyer under any Supplier-Buyer Agreement. We do not make any representations or warranties of any kind with respect to a Supplier or a Supplier-Buyer Agreement and you acknowledge that we are not an agent or representative of you or any Buyer.

(b) Facilitation of Supplier-Buyer Agreement Fee Payments. We do not facilitate any payments between you and Buyers under each Supplier-Buyer Agreement (each such payment, the “Supplier-Buyer Agreement Fee”). All Supplier-Buyer Agreement Fee payment arrangements are to be made directly between you and each Buyer.

c) Supplier-Buyer Agreement Fee Dispute. You will notify Buyers (and not us) directly of any disagreement with any Supplier-Buyer Agreement Fee and resolve such fee disputes directly with such Buyer. You acknowledge and agree that we are not responsible for any delayed or incorrect Supplier-Buyer Agreement Fee payments.

5. Buyer Disclaimer

BUYERS ARE INDEPENDENT PERSONS AND NOT PARTNERS, AGENTS OR EMPLOYEES OF OURS. YOU ACKNOWLEDGE AND AGREE THAT WE ONLY PROVIDE REQUESTS FOR QUOTES FROM BUYERS AND HAVE NO CONTROL OVER THE QUALITY AND PUNCTUALITY OF ANY BUYERS. WE ARE NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, CONDITIONS, BREACHES OR NEGLIGENCE OF ANY BUYER OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM AND TAKE NO RESPONSIBILITY WHATSOEVER RELATED TO ANY SUPPLIER-BUYER AGREEMENTS ENTERED INTO BY YOU OR ANY BUYER. WE DO NOT RECOMMEND OR ENDORSE ANY BUYERS AND RECOMMEND THAT YOU PERFORM YOUR OWN DUE DILIGENCE BEFORE SUBMITTING A BID OR ENTERING INTO ANY SUPPLIER-BUYER AGREEMENT. WE DO NOT TAKE ANY RESPONSIBILITY FOR, AND HAVE NO INVOLVEMENT IN, DISPUTES PERTAINING TO ANY SUPPLIER-BUYER AGREEMENT FEE.