Platform Services Agreement
Last modified: September 1, 2021
Please thoroughly review this Platform Services Agreement (referred to as, this “Agreement”). This Agreement is a legal agreement between you and Aion Financial Technologies, Inc., a Delaware corporation (“Aion,” “we,” “our” or “us”), and governs your use of the Services (as defined below) made available to you on our website. References to “Customer” or “you” mean the legal entity that is applying for or that has opened an account to use the Services and the individual applying for the Account and using the Services.
When you apply for a bank account through our website or our mobile application, you are required to accept this Agreement and agree to its terms and conditions, by clicking “Sign Up.”
By accessing or using the Services, you agree to this Agreement, and the terms and conditions of this Agreement become binding. If you do not agree to this Agreement, then you may not use the Services.
Aion reserves the right, from time to time, in its sole discretion, to revise, modify, or update this Agreement. When changes are made, Aion will provide you with notice either by email or through the website. Aion will also update the “Last Modified” date at the top of this Agreement. Aion may require you to provide consent to the updated Agreements in a specified manner before further use of the Services. If you do not agree to any change(s) after receiving notice of such change(s), you agree to stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such changes. PLEASE REGULARLY CHECK THE SERVICES TO VIEW THE CURRENT TERMS.
1. Definitions. The following terms shall have the meanings ascribed to them below.
“Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
investigation of any nature, civil, criminal, administrative, regulatory, or other, whetherat law, in equity, or otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person.
“Agreement” has the meaning set forth in the preamble.
“Aion” has the meaning set forth in the preamble.
“Aion Disabling Device” means any software, hardware, or other technology, device, ormeans (including any back door, time bomb, time out, drop dead device, softwareroutine, or other disabling device) used by Aion or its designee to disable Customer’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of Aion or its designee.
“Aion Essentials” is a finance software and services bundle that comprises banking Services, receivables, payables, standard user management and other features orfunctionalities.
“Aion Emerging” is a finance software and services bundle that comprises banking Services, receivables, payables, standard and custom user management, API, workflow approvals and other features or functionalities.
“Aion Enterprise” is a finance software and services bundle that comprises banking Services, receivables, payables, standard and custom user management, API, workflow approvals, lockbox services, and other features or functionalities.
“Aion Indemnitee” has the meaning set forth in Section 10.1.
“Aion Launch” is a finance software and services bundle that provides Banking Services for businesses.
“Aion Materials” means the Services, Specifications, Documentation, and Aion Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Aion or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Aion Systems. For the avoidance of doubt, Aion Materials include Resultant Data and any information, data, or other content derived from Aion’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.
“Aion Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of Aion or any Subcontractor.
“Aion Systems” means the information technology infrastructure used by or on behalf of Aion in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Aion or through the use of third-party services.
“Authorized Users” means Customer’s employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder. Authorized Users include both standard roles (for example, Company Admin, Banking Admin, Revenue and Expenses Admin, and Bookkeeper) and customized roles, with unique access and usage privileges established by Customer.
“Beta Features” means new or updated features or functionality that, from time to time, Aion may, in its sole discretion, include as part of the Services. Customer’s adoption of any Beta Feature will be voluntary. Customer acknowledges that after Customer adopts use of any Beta Features, Customer may be unable to use any prior non-beta versions of the Services. Additionally, even if Customer can use prior non-beta versions, Customer may not be able to return or restore data created within the Beta Feature. All Beta Features are provided on an “as is” basis and may contain errors or inaccuracies that could cause failures, corruption or loss of data and information from any connected device. Customer acknowledges and agrees that all use of any Beta Features is at Customer’s sole risk.
“Customer” has the meaning set forth in the preamble.
“Customer Data” means information, data, and other content, in any form or medium that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Services. For the avoidance of doubt, Customer Data does not include Resultant Data, or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
“Customer Failure” has the meaning set forth in Section 4.2.
“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.
“Documentation” means any manuals, instructions, or other documents or materials that Aion provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or Aion Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
“Effective Date” means the date that Customer agrees to this Agreement and accepts the terms and conditions.
“Fees” has the meaning set forth in Section 7.1.
“Force Majeure Event” has the meaning set forth in Section 13.9.
“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services or Aion Systems as intended by this Agreement. Harmful Code does not include any Aion Disabling Device.
“Indemnitee” has the meaning set forth in Section 10.2.
“Indemnitor” has the meaning set forth in Section 10.2.
“Initial Term” has the meaning set forth in Section 12.1.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, whether registered or subject to pending applications, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Process” means to take any action or perform any operation or set of operations that the SaaS Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
“Prohibited Content” means (a) Illegal, fraudulent, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that is excessively violent, incites or threatens violence, encourages would encourage "flaming" others, or criminal or civil liability under any local, state, federal or foreign law; (b) content that would impersonate someone else or falsely represent your identity or qualifications, or that may constitute a breach of any individual's privacy; (c) content that is illegally unfair or deceptive, or creates a safety or health risk to an individual to the public; (d) except as permitted by Aion in writing, investment opportunities, solicitations, chain letters, pyramid schemes, other unsolicited commercial communication or engage in spamming or flooding; or (e) any information, software or content that Customer does not own or have the right to use which is not legally Customer’s and without permission from the copyright owner or intellectual property rights owners thereof.
“Renewal Term” has the meaning set forth in Section 12.3.
“Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.
“Resultant Data” means (i) data and information related to Customer’s use of the Services that is used by Aion in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services, and (ii) data and information related to Customer Data that is used by Aion in an aggregated and anonymized manner, including to provide industry insights and analytics.
“Services” means the software-as-a-service offered by Aion to which you subscribe. Services include Aion Launch, Aion Essentials, Aion Emerging or Aion Enterprise toolkits, with each containing certain business tools and functionality as Aion might make available from time to time. Aion may limit usage for some features based upon the subscription Customer purchased. These features may include, without limitation, Receivables, Payables, Bookkeeping Kit, Standard Roles, Custom Roles, Workflows, API, Payment Approvals, Business Analytics and Insights and Authorized Users. Services may also include, from time to time, Beta Features.
“Subcontractor” has the meaning set forth in Section 2.7.
“Term” has the meaning set forth in Section 12.3.
“Territory” means United States of America.
“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Aion.
“Third-Party Products” means products and services, including software, offered by third parties that Customer purchases from such third parties.
“Trial Period” means a temporary, introductory period during which Customer subscribes to use the Services before deciding to subscribe for an Initial Term. If Customer registered for a Trial Period, Customer must decide to purchase a right to use the Services for a standard Initial Term before the Trial Period expires in order to retain access to any Customer Data or Resultant Data provided or created during the Trial Period. If Customer does not do so, Customer’s Customer Data will no longer be available to Customer, and Customer will be solely responsible for loss of such Customer Data. To be very clear, after using the Services during the Trial Period, if Customer decides not to purchase the Services, Customer will not be able to access or retrieve any of its Customer Data added to or created with the Services and Aion will not be responsible for loss of any Customer Data.
2.1. Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Aion hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 13.8) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Customer shall specify its selected Services at the time of registration and subscribing for such Services. Such use is limited to Customer’s internal use. Aion shall provide to Customer the Access Credentials within a reasonable time following. Aion reserves the right to limit the total number of Authorized Users, and Customer agrees that the total number of Authorized Users will not exceed such limit, except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the Fees payable hereunder.
2.2. Downgrades. Customer can change the Services that it selected, but doing so may make certain features and functionality unavailable. If Customer changes its selected Services to an offering that includes fewer features and functionality, Customer may lose access to any Customer Data or Resultant Data provided or created previously, its Customer Data may no longer be available to Customer, and Customer will be solely responsible for loss of such Customer Data. To be very clear, Customer may not be able to access or retrieve any of its Customer Data added to or created with the previously subscribed Services, and Aion will not be responsible for loss of any Customer Data.
2.3. Documentation License. Aion hereby grants to Customer a non-exclusive, nonsublicensable, on-transferable (except in compliance with Section 13.8) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
2.4. Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
(a) Aion has and will retain sole control over the operation, provision, maintenance, and management of the Aion Materials; and
(b) Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Aion Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or Aion; (ii) results obtained from any use of the Services or Aion Materials; and (iii) conclusions, decisions, or actions based on such use.
2.5. Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Aion Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Aion Materials, and the Third-Party Materials are and will remain with Aion and the respective rights holders in the Third-Party Materials. To the extent that Customer obtains any right, title or interest to or in the Services, Aion Materials, or Third-Party Materials, Customer hereby irrevocably assigns and transfers all right, title and interest, including without limitation all Intellectual Property Rights, to and in the Services, Aion Materials, and Third-Party Materials to Aion.
2.6. Changes. Aion reserves the right, in its sole discretion, to revise, update, modify, or otherwise make any changes to the Services and Aion Materials, or alter Customer’s access to the Services, that Aion deems necessary or useful to: (
a) maintain or enhance: (i) the quality or delivery of Aion’s services to its customers; (ii) the competitive strength of or market for Aion’s services; or (iii) the Services’ cost efficiency or performance; or
(b) to comply with applicable Law. To the extent reasonably possible, Aion will provide Customer with reasonable notice either posted on the website hosting the Services or to the Service Manager’s email address. Note that Aion may modify the amount of storage space Customer has through the Services and the number of times (and the maximum duration for which) Customer may access the Services in a given period of time. In the event Aion needs to maintain the security of the system or comply with any laws or regulations, Aion reserves the right to modify the Services immediately, and to provide electronic or written notice after any material modifications. Customer may reject any changes to the Services by discontinuing use of the Services to which such changes relate. Customer’s continued use of the Services will constitute Customer’s acceptance of and agreement to such changes.
2.7. Subcontractors. Aion may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”).
2.8. Suspension or Termination of Services. Aion may, directly or indirectly, and by use of a Aion Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or Aion Materials, without incurring any resulting obligation or liability, if:
(a) Aion receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Aion to do so; or
(b) Aion believes, in its sole discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 2.8 does not limit any of Aion’s other rights or remedies, whether at law, in equity, or under this Agreement.
2.9. Third-party Services. Some of Aion’s Services contain features designed to interoperate with third-party services (which may include, for example, QuickBooks Online, Plaid, Yodlee, Experian, PayPal, Xero, and Square services). Such Service features depend on those third-party providers continuing to make their services, including their application programming interfaces (“APIs”) where applicable, available for the Services. If any of those third-party service providers ceases to make its applicable services or APIs available on reasonable terms to Aion, Aion may cease providing the corresponding features without entitling Customer to any refund, credit, or other compensation.
2.10. Use with Mobile Devices. Mobile access to the Services requires an active subscription, internet access, and may not be available for all mobile devices or telecommunication providers. Customer is responsible for ensuring that Customer’s mobile device and telecommunications provider are compatible with the Services. Aion is not obligated to provide a compatible version of the Services for all mobile devices or telecommunication providers, which are subject to change by Aion at any time. Customer agrees that Customer is solely responsible for these requirements, including any applicable changes, updates and fees as well as the terms of Customer’s agreement with Customer’s mobile device and telecommunications provider. AION MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO:
(a) THE AVAILABILITY OF TELECOMMUNICATION SERVICES FROM CUSTOMER’S PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION;
(b) ANY LOSS, DAMAGE, OR SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES; AND
(c) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTINGS CONNECTED WITH THE SERVICES.
2.11. Outbound Data Transfers.
(a) Aion may provide Customer with the opportunity to transfer its Customer Data from the Services to certain supported online Third-Party Products or other online Aion services (the “Ancillary Services”) that Customer signs up for or uses in connection with the Services (the “Data Transfer Service”). Customer may need to be an active subscriber of the Third-Party Product or Ancillary Services to use the Data Transfer Service. In order to access a Third-Party Product or an Ancillary Service on Customer’s behalf to provide the Data Transfer Service, Customer may need to provide Aion with Customer’s account number, password, security questions and answers, and any other necessary log in information for such Third-Party Product from time to time (the “Login Details”). Aion will only use Customer’s Login Details in connection with the Data Transfer Service or otherwise at Customer’s direction. Customer hereby represents that Customer has the authority to provide the Login Details to Aion, and Customer expressly appoints Aion as Customer’s, or the third party who owns the Login Details', agent with limited power of attorney to access any Third-Party Products or Ancillary Services on Customer’s behalf. With respect to each Data Transfer Service, Customer grants Aion the right to transfer Customer Data to the Third-Party Product or Ancillary Service, and to reformat and manipulate the Customer Data as reasonably necessary for the Customer Data to function with such product or service. After the transfer occurs, the original Customer Data will remain in the Services unless Aion discloses to Customer otherwise.
(b) Customer agrees that Customer will (a) review and comply with all Third-Party Product or Ancillary Service terms and conditions before Customer accesses the Data Transfer Service, and (b) not use the Data Transfer Service in any manner that would infringe or violate the rights of Aion or any other party, or in furtherance of criminal, fraudulent or other unlawful activity. Depending on the Third-Party Product or Ancillary Service Customer chooses, Customer further agrees and acknowledges that its Customer Data, including Customer’s financial or personal information, may be transferred through the Data Transfer Service to another country where security and privacy controls may not be adequate for data protection. Aion does not guarantee that Customer will be able to use the Data Transfer Service with any specific products or services. Customer will only have access to the Data Transfer Services during the period for which Customer has paid for a subscription. Third-Party Products may make changes to their websites, with or without notice to Aion, that may prevent or delay the overall performance of the Data Transfer Service.
2.12. Inbound Data Transfers.
(a) Aion may provide Customer with the opportunity to transfer certain data from a Third-Party Product or an Ancillary Service to these Services (the “Data Receipt Service”). Customer may need to be an active subscriber of the Third-Party Product or Ancillary Services to use the Data Receipt Service. In order to access a Third-Party Product or an Ancillary Service on Customer’s behalf, Customer may need to provide Aion with Customer’s Login Details. Aion will only use Customer’s Login Details in connection with the Data Receipt Service or otherwise at Customer’s direction. Customer hereby represents that Customer has the authority to provide the Login Details to Aion, and Customer expressly appoints Aion as Customer’s, or the third party who owns the Login Details’, agent with limited power of attorney to access any Third-Party Products or Ancillary Services and retrieve data on Customer’s behalf. With respect to each Data Receipt Service, Customer grants Aion the right to transfer data to the Services, and to reformat and manipulate Customer’s data as reasonably necessary for the data to function with the Services. After the transfer occurs, Customer’s original data may not remain in the Third-Party Product or the Ancillary Services; please review the terms of those products and services to confirm.
(b) Customer agrees that Customer will (i) review and comply with all Third-Party Product and Ancillary Service terms and conditions before Customer accesses the Data Receipt Services, and (ii) not use the Data Receipt Services in any manner that would infringe or violate the rights of Aion or any other party, or in furtherance of criminal, fraudulent or other unlawful activity. In the event that any Third-Party Product charges for access to data, Customer agrees that Customer is responsible for any fees due and owing. Customer agrees that the providers of the Third-Party Products, and not Aion, are solely responsible for their own actions or inactions. Aion is not liable for any damages, claims or liabilities arising out of or related to any Third-Party Products.
3. Use Restrictions; Service Usage and Data Storage.
3.1. Use Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Aion Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
(a) copy, modify, or create derivative works or improvements of the Services or Aion Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Aion Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Aion Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Services or Aion Materials or access or use the Services or Aion Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
(e) input, upload, transmit, or otherwise provide to or through the Services or Aion Systems, any information or materials that are unlawful or injurious, including without limitation Harmful Content, or contain, transmit, or activate any Harmful Code;
(f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Aion Systems, or Aion’s provision of services to any third party, in whole or in part;
(g) remove, delete, alter, or obscure any trademarks, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Aion Materials, including any copy thereof;
(h) access or use the Services or Aion Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Aion customer), or that violates any applicable Law;
(i) access or use the Services or Aion Materials for purposes of competitive analysis of the Services or Aion Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Aion’s detriment or commercial disadvantage;
(j) access or use the Services or Aion Materials in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage; or
(k) otherwise access or use the Services or Aion Materials beyond the scope of the authorization granted under this Section 3.1.
3.2. No Federal Services. The Services are not intended for use by the United States federal government or other entities utilizing federal appropriated funds to acquire a right to use the Services (collectively “Federal Users”). A right or license for use by Federal Users is not granted and any such usage is prohibited. In the event any Federal User should purport to acquire a license to the Services, such license is hereby nullified and declared void and no contract between Aion and a Federal User shall result from such purported acquisition. Aion reserves the right in its sole discretion: (i) to cancel any Services order placed by a Federal User (either directly from Aion or from any third party) at any time, including but not limited to, after such Services has been provided to the Federal User at issue, and (ii) to restrict such Federal User’s access or use of the Services.
4. Customer Obligations.
4.1. Customer Systems and Cooperation. Customer shall at all times during the Term:
(a) set up, maintain, and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used;
(b) provide Aion Personnel with such access to Customer’s Customer Systems as is necessary for Aion to perform the Services; and (c) provide all cooperation and assistance as Aion may reasonably request to enable Aion to exercise its rights and perform its obligations under and in connection with this Agreement.
4.2. Effect of Customer Failure or Delay. Aion is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).
4.3. Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.1, Customer shall, and shall cause its Authorized Users to, immediately:
(a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Aion Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and
(b) notify Aion of any such actual or threatened activity.
5. Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
6. Security and Data Privacy.
6.2. Data Breach Procedures. Aion maintains a data breach plan and shall implement the procedures required under such data breach plan on the occurrence of a data breach (as defined in such plan).
6.3. Customer Control and Responsibility. Customer has and will retain sole responsibility for:
(a) all Customer Data, including its content and use;
(b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services;
(c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”);
(d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and
(e) all access to and use of the Services and Aion Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
6.4. Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to:
(a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and
(b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.
6.5. Telephone Numbers. We offer multi-factor authentication (“MFA”) to limit access to Authorized Users. If you elect to activate MFA, you authorize us to use your telephone or mobile telephone number for MFA as one way to confirm your identify and control access to your account. You authorize us to send text messages to your telephone and mobile telephone numbers that contain access codes in connection with MFA. You may provide us with your telephone and mobile telephone numbers during registration or otherwise. As part of MFA, you also authorize us to obtain and use information provided by your mobile telephone service provider, solely for the purposes of verifying your identity and to compare information that you have provided to us, such as your name, address, email, mobile device identifiers (IMSI and IMEI) and other mobile phone subscriber details. You also authorize us to send automated text messages and pre-recorded voice messages to, and to call, your telephone and mobile telephone numbers to share information about your account, provide Services under this Agreement, and to respond to inquiries you make regarding the Services. Additionally, we may use your telephone number to contact you about special offers or other Aion products or Third-Party Products or services unless you opt out of such marketing. Your mobile telephone service provider may charge separate fees for calls and text messages. We cannot guarantee that you will always have coverage and receive messages that we send in connection with MFA. If you do not receive messages that we send, MFA might prevent you from accessing your account.
6.7. Other Offerings. Aion may notify Customer about other Aion services. Customer may be offered other services, products, or promotions by Aion (“Other Services”). Additional terms and conditions and fees may apply. With some Other Services, Customer may upload or enter data from Customer’s account(s) such as names, addresses and phone numbers, purchases, etc., to the Internet. Customer grants Aion permission to use information about Customer’s business and experience to help Aion to provide the Other Services to Customer and to enhance the Services. Customer grants Aion permission to combine Customer’s business data, if any, with that of others in a way that does not identify Customer or any individual personally. Customer also grants Aion permission to share or publish summary results relating to research data and to distribute or license such data to third parties.
6.8. Communications. Aion may be required by law to send Communications to Customer that may pertain to the Services or third-party products and the use of information Customer may submit to Aion. Additionally, certain third-party services Customer chooses may require Communications with third parties who administer these programs. Customer agrees that Aion and others who administer such services (as applicable), may send Communications to Customer by email and/or may make Communications available to Customer by posting them at one or more of Aion’s sponsored websites, such as https://aionfi.com. Customer consents to receive these Communications electronically. The term “Communications” means any notice, record, agreement, or other type of information that is made available to Customer or received from Customer in connection with the Services or third-party services.
7. Fees and Payment.
7.1. Fees. Customer shall pay Aion the fees set forth in the registration process applicable to the Services selected by Customer when subscribing, opening an account, and/or modifying its subscribed Services (“Fees”) in accordance with this Section 7. Aion may charge separate, incremental fees for Beta Features, which will be disclosed to you at the time you choose to use the Beta Features. If Customer modifies its selected Services, Customer agrees to pay the corresponding Fees for such newly subscribed Services during the duration of the applicable Term. If the Fees for such Services are lower than the Fees for the prior Services, Aion will not refund the difference. All fees paid by Customer are nonrefundable, except as provided in Section 10.3(c) and Section 12.5(e). If the Fees for such Services are higher than the Fees for the prior Services, Customer shall pay the prorated difference for the duration of the the prior Services, Customer shall pay the prorated difference for the duration of the Term in a lump sum.
7.2. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Aion’s income.
7.3. Payment. Customer shall pay all Fees at the time of subscribing for Services or upgrading the selected Services to another offering. In Aion’s sole discretion, Aion may invoice Customer for Fees, and such invoices shall be payable within 10 days of receipt. In addition, and in Aion’s sole discretion, Aion might allow for monthly or quarterly invoicing of Fees. Customer shall make all payments hereunder in US dollars by credit card or electronic funds transfer. Customer shall make payments to the address or account specified at the time of subscription or such other address or account as Aion may specify in writing from time to time. If Customer’s payment and registration information is not accurate, current, and complete and Customer does not notify Aion promptly when such information changes, or a chargeback is processed on Customer’s account, Aion may suspend or terminate Customer’s account immediately, without notice, and refuse any use of the Services. If Customer does not notify Aion of updates to your payment method (e.g., credit card expiration date), to avoid interruption of the Services, Aion may participate in programs supported by Customer’s card provider (e.g., updated services, recurring billing programs, etc.) to try to update Customer’s payment information, and Customer authorize Aion to continue billing Customer’s account with the updated information that Aion obtains.
7.4. Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
(a) Aion may charge interest on the past due amount at the rate of ten percent (10%) per annum calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
(b) Customer shall reimburse Aion for all costs incurred by Aion in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and
(c) if such failure continues for five (5) days following written notice thereof, Aion may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
7.5. No Deductions or Setoffs. All amounts payable to Aion under this Agreement shall be paid by Customer to Aion in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
7.6. Fee Increases. Aion may increase Fees for any contract year after the Initial Term, by providing written notice to Customer at least thirty (30) calendar days prior to the commencement of that contract year, and the Customer’s subscription will be deemed amended accordingly.
(a) Monitoring. Aion may, but has no obligation to, monitor access to or use of the Services or to review or edit any Customer Data for the purpose of operating the Services, to ensure compliance with this Agreement, and to comply with applicable law or other legal requirements. Aion may disclose any information necessary to satisfy Aion’s legal obligations, protect Aion or its customers, or operate the Services properly. Aion, in its sole discretion, may refuse to post, remove, or refuse to remove, or disable any Customer Data, in whole or in part, that is alleged to be, or that Aion considers to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.
(b) Audit Procedure. Aion or its nominee (including its accountants and auditors) may inspect and audit Customer’s use of the Services under this Agreement at any time during the Term and for two (2) years following the termination or earlier expiration of this Agreement. All audits will be conducted during regular business hours , and no more frequently than once in any twelve (12)-month period, and in a manner that does not unreasonably interfere with Customer’s business operations. Customer shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may reasonably be requested by or on behalf of Aion with respect to such audit. Aion shall only examine information directly related to Customer’s use of the Software.
8. Intellectual Property Rights.
8.1. Aion Materials. All right, title, and interest in and to the Aion Materials, including all Intellectual Property Rights therein, are and will remain with Aion and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the Aion Materials except as expressly set forth in Section 2.1, Section 2.3, or the applicable third-party license, in each case subject to Section 3.1. All other rights in and to the Aion Materials are expressly reserved by Aion. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Aion an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
8.2. Customer Data. As between Customer and Aion, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 8.3.
8.3. Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Aion, its Subcontractors, and the Aion Personnel to enforce this Agreement and exercise Aion’s, its Subcontractors’, and the Aion Personnel’s rights and perform Aion’s, its Subcontractors’, and the Aion Personnel’s obligations hereunder. Without limiting the foregoing, Customer grants to Aion a worldwide, perpetual, irrevocable, transferrable, fully-paid, royalty-free license, with the right to sublicense through multiple tiers, to
(a) use and create derivative works of Customer Data to provide, modify, and improve the Services offered by Aion and its Affiliates and Subcontractors,
(b) use and create derivative works of Customer Data for Aion’s own internal purposes,
8.4. Feedback. Aion encourages Customer to provide and share with Aion Customer’s questions, comments, suggestions, ideas, and feedback regarding the Services (collectively, “Feedback”). Customer agrees that Aion has no obligations (including without limitation obligations of confidentiality, royalty, or accounting) with respect to such Feedback. Customer represents and warrants that Customer has all rights necessary to submit the Feedback, and Customer hereby irrevocably and unconditionally assigns and transfers to Aion all right, title, and interest in and to such Feedback automatically upon Customer’s submission of the Feedback to Aion.
9. Representations and Warranties.
9.1. Mutual Representations and Warranties. Each party represents and warrants to the other party that:
(a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
(d) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
9.2. Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Aion that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Aion and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
9.3. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9.1 AND SECTION 9.2, ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED “AS IS.” PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
9.4. No Professional Advice. Unless specifically included with the Services, Aion is not in the business of providing legal, financial, accounting, tax, health care, real estate or other professional services or advice. Customer should consult the services of a competent professional when Customer needs this type of assistance. AION DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS.
10.1. Customer Indemnification. Customer shall indemnify, defend, and hold harmless Aion and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Aion Indemnitee”) from and against any and all Losses incurred by such Aion Indemnitee resulting from any Action by a third party (other than an Affiliate of a Aion Indemnitee) that arise out of or result from, or are alleged to arise out of or result from:
(a) Customer Data, including any Processing of Customer Data by or on behalf of Aion in accordance with this Agreement;
(b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Aion’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Aion;
(c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
(d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
10.2. Indemnification Procedure. An Aion Indemnitee seeking indemnification shall promptly notify Customer in writing of any Action for which the Aion Indemnitee believes it is entitled to be indemnified pursuant to Section 10.1. The Aion Indemnitee shall cooperate with the Customer at the Customer’s sole cost and expense. The Customer shall promptly assume control of the defense and shall employ counsel reasonably acceptable to the Aion Indemnitee to handle and defend the same, at the Customer’s sole cost and expense. The Aion Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Customer shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Aion Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the Customer fails or refuses to assume control of the defense of such Action, the Aion Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Customer, in each case in such manner and on such terms as the Aion Indemnitee may deem appropriate. The Aion Indemnitee’s failure to perform any obligations under this Section 10.2 will not relieve the Customer of its obligations under this Section 10, except to the extent that the Customer can demonstrate that it has been materially prejudiced as a result of such failure.
10.3. Mitigation. If any of the Services or Aion Materials are, or in Aion’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or Aion Materials is enjoined or threatened to be enjoined, Aion may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use the Services and Aion Materials materially as contemplated by this Agreement;
(b) modify or replace the Services and Aion Materials, in whole or in part, to seek to make the Services and Aion Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Aion Materials, as applicable, under this Agreement; or
(c) by written notice to Customer, (i) terminate this Agreement with respect to all or part of the Services and Aion Materials, and require Customer to immediately cease any use of the Services and Aion Materials or any specified part or feature thereof, and (ii) refund to Customer a prorated amount of the fees paid by Customer in advance with respect to the incomplete, remaining Term of this Agreement.
10.4. Sole Remedy. SECTION 10.3 SETS FORTH CUSTOMER’S SOLE REMEDIES AND AION’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND AION MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
11. Limitations of Liability.
11.1. EXCLUSION OF DAMAGES. IN NO EVENT WILL AION OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, SUPPLIERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND ADVISORS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY:
(A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE;
(B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES, FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, VIRUSES, OR SPYWARE;
(C) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY;
(D) COST OF REPLACEMENT GOODS OR SERVICES;
(E) LOSS OF GOODWILL OR REPUTATION; OR
(F) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11.2. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF AION AND ITS LICENSORS, SERVICE PROVIDERS, SUPPLIERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND ADVISORS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL FEES PAID TO AION UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR TWO HUNDRED FIFTY DOLLARS ($250.00), WHICHEVER IS LESS. FOR CLARITY, ALL INTEREST AND PRINCIPAL AND BANKING SERVICE FEES AND CHARGES, IF ANY, PAID BY CUSTOMER TO AION OR LENDINGCLUB BANK, N.A. SHALL NOT BE DEEMED FEES PAID TO AION UNDER THIS AGREEMENT AND SHALL NOT BE CONSIDERED WHEN DETERMINING THE LIMITATION OF LIABILITY PROVIDED IN THIS SECTION 11.2.THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12. Term and Termination.
12.1. Initial Term. The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant any of the Agreement’s express provisions, will continue in effect until one (1) year from such date (the “Initial Term”).
12.2. Trial Period. From time to time, Aion may offer, in its sole discretion, a subscription to the Services for a Trial Period. If Customer elects to purchase the Services during a Trial Period, the terms of Aion’s offer for such Trial Period, including, without limitation, the duration of the Trial Period, shall apply.
12.3. Renewal Term. This Agreement will automatically renew for additional successive one (1)-year terms unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Trial Period, if applicable, and the Initial Term, the “Term”).
12.4. Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) Aion may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than five (5) days after Aion’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 3.1 (Use Restrictions) or Section 6.3 (Customer Control and Responsibility);
(b) Aion may terminate this Agreement, effective on written notice to Customer, if Customer’s related bank account with LendingClub Bank, N.A. is closed for any reason by either Customer or LendingClub Bank, N.A.;
(c) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach;
(d) Aion may terminate this Agreement for any reason or no reason, i.e., for convenience, by providing ninety (90) days prior written notice to Customer; and
(e) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
12.5. Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents, and authorizations granted by Aion to Customer hereunder will immediately terminate;
(b) Customer shall immediately cease all use of all Services and Aion Materials and (i) promptly return to Aion, or at Aion’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Aion Materials; (ii) permanently erase all Aion Materials from all systems Customer directly or indirectly controls; and (iii) certify to Aion in a signed written instrument that it has complied with the requirements of this Section 12.5(b);
(c) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) Customer may retain Aion Materials in its then current state and solely to the extent and for so long as required by applicable Law; (ii) Aion may retain Customer Data in connection with the license provided in Section 8.3; (iii) Aion may also retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (iv) all information and materials described in this Section 12.5(c) will remain subject to all other applicable requirements of this Agreement;
(d) Aion may disable all Customer and Authorized User access to the Services and Aion Materials;
(e) if Customer terminates this Agreement pursuant to Section 12.4(c), or if Aion terminates this Agreement pursuant to Section 12.4(d), Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Aion will refund to Customer Fees paid in advance for Services that Aion has not performed as of the effective date of termination;
(f) if Aion terminates this Agreement pursuant to Section 12.4(a), Section 12.4(b), or Section 12.4(c), or if either Party terminates this Agreement pursuant to Section 12.4(e), all Fees paid by Customer shall be nonrefundable; and
(g) Customer may download the then most recent version of Customer Data maintained by Aion within sixty (60) days of expiration or termination of this Agreement, provided that Customer has at that time paid all Fees then outstanding and any amounts payable after or as a result of such expiration or termination.
12.6. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.1, Section 9.3, Section 10, Section 11, Section 12.5, this Section 12.6, and Section 13.
13.1. Further Assurances. On a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
13.2. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
13.3. Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that Aion may, without Customer’s consent, include Customer’s name and other indicia in its lists of Aion’s current or former customers of Aion in promotional and marketing materials.
13.4. Notices. Any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 13.4):
If to Aion:
Aion Financial Technologies, Inc.
75 E. Santa Clara Street, Suite 900
San Jose, CA 95113
Attention: Legal Department
If to Customer, to the address, facsimile, and/or email provided by Customer upon subscription.
Notices sent in accordance with this Section 13.4 will be deemed effectively given:
(a) when received, if delivered by hand, with signed confirmation of receipt;
(b) when received, if sent by a nationally recognized overnight courier, signature required;
(c) when sent, if by facsimile or email, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the seventh (7th) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
13.5. Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”;
(b) the word “or” is not exclusive;
(c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole;
(d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and
(e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
13.6. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
(a) first, this Agreement; and
13.8. Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Aion’s prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Aion’s prior written consent is required. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 13.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
13.9. Force Majeure.
(a) No Breach or Default. In no event will Aion 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 Aion’s reasonable control (a “Force Majeure Event”), including (i) acts of God; (ii) flood, fire, earthquake, epidemics, pandemics, storms, 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; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (viii) shortage of adequate power or transportation facilities. Aion may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.
(b) Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, Aion 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.
13.10. No Third-Party Beneficiaries. Except for the rights of Aion Indemnitees in Section 10, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
13.11. Amendment and Modification; Waiver. Aion reserves the right, from time to time, in its sole discretion, to revise, modify, or update this Agreement. When changes are made, Aion will provide you with notice either by email or through the website. Aion will also update the “Last Modified” date at the top of the Terms. Aion may require you to provide consent to the updated Agreements in a specified manner before further use of the Services. If you do not agree to any change(s) after receiving notice of such change(s), you agree to stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such changes. PLEASE REGULARLY CHECK THE SERVICES TO VIEW THE CURRENT TERMS. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
13.12. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
13.13. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the city of San Francisco and County of San Francisco, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
13.14. Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
13.15. Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach of any of its obligations under Section 3.1, Section 4.3, or Section 6.3, would cause Aion irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Aion will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
13.16. Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement. The Parties agree that this Agreement may be electronically signed. The Parties agree that the electronic signatures appearing on this Agreement are the same as handwritten signatures for all purposes, including validity, enforceability and admissibility.
13.17. Global Trade Compliance. Customer agrees that Customer and anyone who uses the Services, including the related website, online services and mobile application, are not prohibited from receiving the services under the laws and regulations of the United States or other applicable jurisdiction. Customer acknowledges that the Services, including the mobile application, and the underlying software may include U.S. technical data subject to restrictions under export control laws and regulations administered by the United States government. Customer agrees that Customer will comply with these export control and sanctions laws and regulations, and will not transfer or provide any part of the Services, in violation of these laws and regulations, directly or indirectly.
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