End User License Agreement

IMPORTANT – READ CAREFULLY: THIS END-USER LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU AND AXOS NEVADA LLC OR ANY OF ITS AFFILIATED COMPANIES (“AXOS”) PROVIDING THIS SOFTWARE OR SOFTWARE-ENABLED SERVICE TO YOU. IN THIS AGREEMENT, “SOFTWARE” MEANS ANY COMPUTER SOFTWARE PROVIDED TO YOU BY AXOS WHICH IS INSTALLED ON OR ACCESSED BY YOUR COMPUTER OR INSTALLED ON ANOTHER COMPUTER THAT YOU ACCESS (EACH INCLUDING ANY PRIOR OR FUTURE VERSIONS), AND IT INCLUDES RELATED DOCUMENTATION AND OTHER TEXT; ARTWORK, PHOTOS, VIDEO AND AUDIO CONTENT; AND ALL UPDATES TO ANY OF THESE ITEMS.

BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, YOU SHOULD STOP USING THE SOFTWARE AND PROMPTLY RETURN TO AXOS ANY SOFTWARE IN YOUR POSSESSION, INCLUDING ANY PACKAGING AND ALL WRITTEN MATERIALS.

1. GRANT OF LICENSE. If you use the SOFTWARE on a computer owned or controlled by you, this Agreement grants to you the limited, nonexclusive right to install the SOFTWARE on as many computers for which you have purchased a license. If you have subscribed to one of AXOS’s software enabled services that permits you to access SOFTWARE running on AXOS’s computers, as many users as you have purchase licenses for may use the AXOS service during the term of your service subscription.

2. COPYRIGHT. The SOFTWARE is owned by AXOS or its licensors and is protected by copyright laws of the United States, by laws of other nations, and by international copyright treaties. The SOFTWARE is licensed, not sold.

3. RESTRICTIONS ON USE AND TRANSFER. You may only use the SOFTWARE in accordance with this Agreement and any executed services agreement (the “Company Agreement”) or any nondisclosure agreement, in each case, between you or your company and AXOS. If a provision of this Agreement conflicts with a provision in the Company Agreement, the provision in the Company Agreement will control. If no Company Agreement exists you must comply with the following restrictions, in addition to the other terms of this Agreement:

   1. You may not copy the SOFTWARE except under the following circumstances:

      1. You may make one copy of the SOFTWARE solely for backup or archival purposes, and

      2. You may transfer the SOFTWARE to a single hard disk, provided you keep the original solely for backup or archival purposes.

   2. You may not sell, rent or lease the SOFTWARE or otherwise transfer or assign the right to use the SOFTWARE.

4. COPIES. Except to the limited extent as otherwise provided in this Agreement, you shall not copy, translate, adapt, modify, alter, decompile, disassemble, or otherwise reverse engineer or create any derivative work of the SOFTWARE, merge the SOFTWARE or any part thereof with any other software or change the SOFTWARE in whole or in part, nor allow any other party to do so. You shall not alter or remove any copyright or other intellectual property notifications applied to the SOFTWARE. Upon termination of the Company Agreement for any reason, you agree to immediately destroy or return to AXOS the SOFTWARE and may not use the SOFTWARE for any reason.

5. THIRD PARTY COMPONENTS. The SOFTWARE may contain or rely on components that are owned by third parties and have been licensed to AXOS for distribution within the SOFTWARE. You may not use third party components in any way whatsoever other than through your authorized use of the SOFTWARE.

6. WARRANTY DISCLAIMER. OTHER THAN AS PROVIDED IN THE COMPANY AGREEMENT, AXOS DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE.

7. NO LIABILITY FOR DAMAGES. You can recover from AXOS only direct damages up to an aggregate amount equal to the price you paid to license the SOFTWARE (which will be deemed to be your average monthly service charge during your first year if you subscribe to an AXOS software enabled service) or the equivalent of $50.00 (whichever is greater). IN NO EVENT WILL AXOS BE LIABLE TO YOU FOR ANY OTHER DAMAGES, INCLUDING ANY LOSS OF PROFITS, LOST SAVINGS, OR INCIDENTIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF YOUR USE OR INABILITY TO USE THE SOFTWARE (OR ITS ACCESSED INFORMATION). SOLELY TO THE EXTENT CERTAIN JURISDICTIONS LIMIT THE EXCLUSION OF DAMAGES OR LIMITATION OF LIABILITY, THE ABOVE EXCLUSIONS OF DAMAGES OR LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. IF ANY PART OF THE EXCLUSIONS OF DAMAGES OR LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT IS UNENFORCEABLE UNDER APPLICABLE LAW, AXOS’S AGGREGATE LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

8. SEVERABILITY. If any provision of this Agreement is declared to be unenforceable, the remainder of this Agreement will continue in full force and effect, and the unenforceable provision will be deemed modified to the extent necessary to comply with the applicable requirements of law, while retaining to the maximum extent permitted by law its intended effect, scope and economic effect.

9. GOVERNING LAW. This Agreement shall be governed in all respects by the laws of the state of Nevada, without regard to conflicts of law.

10. ARBITRATION. Any controversy or claim between or among the parties hereto including, but not limited to, those arising out of or relating to this Agreement or any related agreements or instruments, including any claim based on or arising from an alleged tort, shall be determined by binding arbitration. Arbitration shall be conducted in Las Vegas, Nevada before a sole arbitrator, in accordance with the laws of the State of Nevada for agreements made in and to be performed in Nevada. The arbitration will be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on any award may be entered in any court having jurisdiction. The provisions of this Section may be enforced by any court having jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorneys’ fees, to be paid by the party against whom enforcement is ordered.

11. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between you and AXOS pertaining to its subject matter and supersedes all other agreements, communications, understandings, negotiations, and discussions, whether oral or written, or course of dealings between us. No representation or promise subsequently made by you or AXOS, nor any modification or amendment of this Agreement, will be binding unless it is in writing and signed by you and an authorized officer of AXOS.

12. ACCESS CODES. As part of your Agreement with AXOS, you may receive a user name and password (or other means by which you can control access to the data, information and services provided by us) (“Access Code”). In such case, you agree to abide by the following terms of this Section. You acknowledge that you will be provided or have been provided an Access Code. You agree that once such Access Code is provided to you, you shall be solely responsible for maintaining the confidentiality of the Access Code. Accordingly, you shall be solely and completely responsible for any and all acts or omissions that occur under the Access Code by you or by any party (other than us) who uses such Access Code for any purpose whatsoever, whether lawful or unlawful. Without limiting the foregoing, you agree that the Access Code given to you will be solely used by you. You agree that you will not assign or transfer it to, or commit any act or omission that would result in such Access Code to be used by, any other party for any purpose whatsoever. You agree to inform AXOS immediately of any unauthorized use of your Access Code.

13. INFORMATION PROVIDED.

    1. THE INFORMATION ACCESSIBLE BY YOU THROUGH THE SOFTWARE (INCLUDING ANY INFORMATION LINKED FROM THIS SOFTWARE) IS FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT, AND SHALL NOT CONSTITUTE, AND AXOS HEREBY DISCLAIMS, ANY REPRESENTATION, WARRANTY, CERTIFICATION (INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT) OR AGREEMENT AS TO THE ACCURACY, RELIABILITY, SUFFICIENCY, TRUTH, SUITABILITY, QUALITY, VALIDITY, TIMELINESS OR COMPLETENESS OF THE INFORMATION SO PROVIDED (INCLUDING ANY AND ALL CALCULATIONS, TABLES, GRAPHS AND SUMMARIES).

       AXOS SHALL NOT BE LIABLE FOR ANY DAMAGES SUFFERED AS A RESULT OF USING, MODIFYING, CONTRIBUTING, COPYING, DISTRIBUTING, OR DOWNLOADING THE INFORMATION ON THIS SOFTWARE. YOU HAVE SOLE RESPONSIBILITY FOR THE ADEQUATE PROTECTION AND BACKUP OF DATA AND/OR EQUIPMENT USED IN CONNECTION WITH THIS SOFTWARE AND YOU WILL NOT MAKE A CLAIM AGAINST AXOS FOR LOST DATA, RE-RUN TIME, INACCURATE OUTPUT, WORK DELAYS, OR LOST PROFITS RESULTING FROM THE USE OF THE INFORMATION ON THIS SOFTWARE. YOU AGREE TO HOLD AXOS HARMLESS FROM ANY CLAIMS, LOSSES OR DAMAGES ARISING ROM OR RELATED TO ANY BREACH OR VIOLATION OF THE TERMS HEREIN OR YOUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN THE USE OF THIS SOFTWARE (INCLUDING THE INFORMATION ACCESSED HEREIN).

    2. Except as set forth in the Company Agreement, the information provided is not a commitment to, and AXOS has no obligation to, deliver any additional information, material, code, or functionality, and you bear the sole risk and liability in relying on such information in making any strategic or analytical decisions (including any decision to purchase products or services). The development, release, and timing of any features or functionality of the SOFTWARE remain at the sole discretion of AXOS, and all information provided may change without notice.

    3. This SOFTWARE may contain hyperlinks to sites operated by third parties. Access to any other site is at your own risk. Such links are provided as a convenience and the inclusion of such links does not imply an endorsement. AXOS is not responsible for the reliability of such sites nor is AXOS responsible for any information or other materials on such sites. AXOS’s inclusion of hyperlinks to such sites does not imply any association with their operators. As stated herein, “information” shall include any and all information that may be generated through the use of this SOFTWARE.

    4. User access to SOFTWARE is governed by all applicable federal, state and local laws. All information access is subject to U.S. export control laws and may also be subject to the laws of the country where you reside.

    5. You may be granted access to information that is sensitive and personal in nature. You agree to not disclose or use such information except in compliance with applicable laws and in connection with lawful, legitimate, and bona-fide purposes.

If you have any questions concerning this Agreement or wish to contact AXOS for any reason, please email [email protected].