BY USING THIS SERVICE, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT (hereinafter this “Agreement”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU OR SUCH ENTITY DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.
The terms set forth herein are between Exalt Solutions, Inc. ("Exalt"), its successors and assignees, (referred to as we, us or our), and you, the person, entity or organization engaging us to perform our software services (referred to as you or your), and collectively the Parties.
1. YOUR AGREEMENT WITH EXALT
1.1 eXalt’s internet Software as a Service and related software applications and components (“SaaS”) are licensed (not sold) to you for limited trial basis by eXalt Software only until Jun 1, 2020).
1.2 Your agreement with eXalt is pursuant to the terms and conditions set out in this Agreement, as well as terms and conditions set forth at: http://www.exaltsolutions.com/privacyandterms (hereinafter “eXalt Websites”). The eXalt Websites are incorporated herein by reference as terms and conditions of this Agreement. To the extent there is any inconsistency between the eXalt Websites and this Agreement, this Agreement shall take precedence.
2. ACCEPTANCE OF THE TERMS
2.1 In order to access and/or use the SaaS you must first accept this Agreement. This Agreement accepted by you (a) when you click to accept or agree to this Agreement; or (b) when you access and/or use the SaaS. We advise you to print a copy of these Terms for your records.
2.2 You cannot use the SaaS if you cannot accept the terms of this Agreement. If you are not of legal age to form a binding agreement with eXalt, you cannot accept the terms of this Agreement.
3. CHANGES TO THE TERMS
3.1 eXalt may make changes to this Agreement from time to time. Changes to this Agreement will be updated herein or posted on the applicable eXalt Websites. The changes will be effective when published. Please review the terms of this Agreement and the eXalt Websites on a regular basis. You understand and agree that your express acceptance of any changes to the terms of this Agreement and the eXalt Websites upon the date of publication shall constitute your agreement to the updated terms.
4.1 License. Subject to your compliance with this Agreement, you are granted a temporary, limited, non-exclusive, non-sublicensable, non-assignable, free of charge license to use the SaaS on a personal computer or mobile phone; and personally use the SaaS through your individual eXalt user account (as applicable) (“User Account”) in the region of the United Stages. eXalt reserves all rights not expressly granted to you herein.
4.2 Restrictions. The SaaS is for your individual use. You shall not resell or commercialize the SaaS to any third party. You may not and you agree not to:
4.2(a) sub-license, sell, assign, rent, lease, export, import, distribute or transfer or otherwise grant rights to any third party in the SaaS or any of eXalt’s software;
4.2(b) undertake, cause, permit or authorize the modification, creation of derivative works or improvements, translation, reverse engineering, decompiling, disassembling, decryption, emulation, hacking, discovery or attempted discovery of the source code or protocols of the SaaS or any part or features thereof (except to the extent permitted by law);
4.2(c) remove, obscure or alter any copyright notices or other proprietary notices included in the SaaS or any eXalt software; and
4.2(d) use the SaaS to be used within or to provide commercial products or services to third parties. The foregoing shall not preclude you using the SaaS for your own business communications, subject to paragraph 4.1 above.
5. technical maintenance
5.1 From time to time, eXalt may need to perform maintenance on or upgrade the SaaS. This may require eXalt to temporarily suspend or limit your use of some or all of the software of the SaaS until such time as this maintenance and/or upgrade can be completed.
5.2 Quality: eXalt cannot guarantee that the SaaS or eXalt Websites will function without disruptions, delay or errors. A number of factors may impact the quality of your communications and use of the SaaS or eXalt Websites, and may result in the failure of your communications including but not limited to: your local network, firewall, your internet service provider, the public internet, the public switched telephone network and your power supply.
5.3 Changes to Products: eXalt may need the SaaS and may also need to change technical features from time to time in order to comply with applicable regulations. Accordingly, you acknowledge and agree that the Products and functionality of the SaaS may vary from time to time. Technical requirements for use of Products and Software and feature descriptions are available on the eXalt Website.
6. User Account AND User Submissions
6.1 User Account
6.1(a) Prior to your first use of the SaaS, you will be asked to create a “User Account” and choose a user ID and password. You may only use the SaaS through your User Account.
6.1(b) You are solely responsible and liable for all activities conducted through your User Account. To prevent unauthorized use, you shall keep your password confidential and shall not share it with any third party or use it to access third party websites or services.
6.2 Limited Use of the SaaS
6.2(a) The SaaS is a software service that is offered to you for a limitable, revocable, nonexclusive use that expires on June 1, 2020. The SaaS is intended to provide you with a temporary mock-up an example a SaaS design that you will be able to access until June 1, 2020. After June 1, 2020, your access to the SaaS any and other eXalt software, products and services will cease. Your use of the SaaS not intended for public consumption, commercial use, or educational use. You represent and warrant that you will not:
(i) submit, publish, input, add, store, or upload any “electronic protected health information” as defined by the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (hereinafter “HIPAA Protected Data”) using the SaaS;
(ii) submit, publish, input, add, store, or upload any content about a minor using the SaaS;
(iii) submit, publish, input, add, store, or upload any personally identifiable information, including account names, from the SaaS about the likeness of a living person;
(iv) submit, use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage, emulate or disassemble the SaaS communication or protocols;
(v) use or launch any automated system, including without limitation, robots, spiders or offline readers that access the SaaS.
6.2(b) In connection with your user submissions, you represent and warrant that any and all data and content that you submit, publish, add, upload, or store in the SaaS does not resemble any identifiable person including their name and/or likeness, that any and all data and content you submit is fictitious, nonconfidential data.
6.2(c) You represent and warrant that you own or have the necessary licenses, rights, consents, and permissions to use and authorize eXalt to use all copyrights, trademarks, trade secrets, patents and other intellectual property or proprietary rights in and to any and all. You shall not copy, post or use text, photos, pictures, music, sounds, images or any other content from any third party or source. Such third party content may be protected by intellectual property laws and the owners of the intellectual property rights in such content may object to its use.
6.3(a) At any time you choose to upload or post a user submission to the SaaS, you automatically grant eXalt a non-exclusive, worldwide, irrevocable, royalty-free, perpetual, sub-licensable and transferable license of all rights to use, edit, modify, include, incorporate, adapt, record, publicly perform, display, transmit and reproduce your user submissions to the SaaS including, without limitation, all trademarks associated therewith, for the purpose of promoting or redistributing eXalt’s products and services, in any and all media now known or hereafter devised. You also hereby grant eXalt a non-exclusive license to access your user submission to the SaaS, including any and all data and content, and to use, copy, distribute, prepare derivative works of, display, perform and transmit such user submissions. In addition, you waive any so-called “moral rights” in and to the user submissions, to the extent permitted by applicable law.
6.3(b) You acknowledge and agree that eXalt may view detailed information about the activity on your account and your submissions on the SaaS. You grant eXalt a non-exclusive, irrevocable right to any and all submissions including any and all data and content, and to use, copy, distribute, prepare derivative works of, display, perform and transmit such user submissions.
6.4 Your Information: From time to time, eXalt may request information from you for the purpose of supplying the SaaS to you. You shall ensure that any such information is complete, up-to-date and accurate.
6.5 Export Restrictions: The SaaS may be subject to international rules that govern the export of software. You shall comply with all applicable international and national laws that apply to the SaaS as well as end-user, end-use, destination restrictions issued by national governments or similar bodies, and restrictions on embargoed nations. In the US, the SaaS is controlled under ECCN 5D992 of the Export Administration Regulations (“EAR”) under Encryption Registration Number (“ERN”) R100351 and thus may not be exported or re exported from the US to or downloaded by any person in any countries controlled for anti terrorism reasons under the EAR, which include Iran, North Korea, Cuba, Syria and Sudan. Moreover, the SaaS may not be exported or re exported from the US to or downloaded by any person or entity subject to US sanctions regardless of location. See www.bis.doc.gov/ComplianceAndEnforcement/ListsToCheck.htm and EAR Part 736. eXalt is making the SaaS available to you for download only on the condition that you certify that you are not such a person or entity and that the download is not otherwise in violation of US export control and sanctions regulations.
7. PROPRIETARY RIGHTS
7.1 The Software, Products and eXalt Websites contain proprietary and confidential information that is protected by intellectual property laws and treaties.
7.2 The content and compilation of content included on the SaaS and any other software, services and products offered by eXalt including the eXalt Websites are the property of eXalt, its affiliates or licensors and are protected by United States and international copyright, patent and trade secret laws. Such protected content cannot be reproduced without eXalt’s express permission.
7.3 eXalt and/or its licensors retain exclusive ownership of SaaS and eXalt Websites and all intellectual property therein (whether or not registered and anywhere in the world). You will not take any action to jeopardize, limit or interfere with eXalt’s intellectual property rights including any and all intellectual rights in the SaaS.
7.4 “eXalt”, associated trademarks and logos are trademarks of eXalt. You are not permitted to and shall not register or use any trade name, trademark, logo, domain name or any other name or sign that incorporates any of eXalt’s intellectual property (in whole or part) or that is confusingly similar thereto. eXalt is not permitted to register or use any trade name, trademark, logo, domain name or any other name or sign that you own. 8. Termination
8.1 Your access to the SaaS terminates on June 1, 2020 (“Termination”). This Termination is without recourse to the courts. Upon Termination, you shall cease to use the SaaS or any eXalt software, products and/or services.
8.2 Prior to Termination, eXalt may terminate its relationship with you, or may terminate or suspend your use of the SaaS at any time and without recourse to the courts:
(a) if you are in breach of this Agreement;
(b) if eXalt reasonably suspects that you are using the SaaS to break the law or infringe third party rights;
(c) if eXalt reasonably suspects that you are trying to unfairly exploit eXalt’s products, software, services, or any of our polices.
8.3 eXalt shall effect such Termination by preventing your access to the SaaS, your User Account, and any other eXalt software, products and/or services (as applicable).
8.4 Consequences of Termination: Upon termination of your relationship with eXalt: (a) all licenses and rights to use the SaaS, your User Account, and any other eXalt software, products and/or services (as applicable) shall immediately terminate; (b) you will immediately cease any and all use of the SaaS, your User Account, and any other eXalt software, products and/or services (as applicable); and (c) you will immediately remove any of the SaaS and any other eXalt software, products and/or services (as applicable) from all hard drives, networks and other storage media and destroy all copies in your possession or under your control.
9. EXCLUSION OF WARRANTIES, LIMITATION OF LIABILITY AND INDEMNITY
9.1 For the purposes of this paragraph 9, "eXalt" includes its subsidiary companies and affiliated legal entities and all their directors, officers, agents, licensors and employees.
9.2 No Warranties: TO THE MAXIMUM EXTENT PERMITTED BY LAW: THE SOFTWARE, PRODUCTS AND EXALT WEBSITES ARE PROVIDED “AS IS” AND USED AT YOUR SOLE RISK WITH NO WARRANTIES WHATSOEVER; EXALT DOES NOT MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS AND EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SAAS, OR ANY OTHER EXALT SOFTWARE, PRODUCTS AND/OR EXALT WEBSITES INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. EXALT FURTHER DOES NOT REPRESENT OR WARRANT THAT the SaaS, your User Account, and any other eXalt software, products and/or services (as applicable) WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS.
9.3 No Liability: YOU ACKNOWLEDGE AND AGREE THAT EXALT WILL HAVE NO LIABILITY WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES OR LOSSES HAS BEEN NOTIFIED TO EXALT, IN CONNECTION WITH OR ARISING FROM YOUR USE OF the SaaS, your User Account, and any other eXalt software, products and/or services,.
9.4 Limitation of Liability: eXalt shall not be liable to you, whether in contract, tort (including negligence) or any other theory of liability, and whether or not the possibility of such damages or losses has been notified to eXalt, for:
(a) any indirect, special, incidental or consequential damages; or
(b) any loss of income, business, actual or anticipated profits, opportunity, goodwill or reputation (whether direct or indirect); or
(c) any damage to or corruption of data (whether direct or indirect);
(d) any claim, damage or loss (whether direct or indirect) arising from or relating to your inability to use the SaaS.
9.5 eXalt’s total liability to you under or in connection with these Terms (whether in contract, tort (including negligence) or any other theory of liability)) SHALL NOT EXCEED IN AGGREGATE THE AMOUNT PAID BY YOU FOR THE PRODUCTS IN THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE RELEVANT CLAIM, SUBJECT TO A MAXIMUM OF FIVE THOUSAND EUROS IN ALL CASES.
9.6 If any third party brings a claim against eXalt in connection with, or arising out of (i) your breach of these Terms; (ii) your breach of any applicable law of regulation; (iii) your infringement or violation of the rights of any third parties (including intellectual property rights); (iv) your User Submissions or (v) your complaint in relation to any user submission, you will indemnify and hold eXalt harmless from and against all damages, liability, loss, costs and expenses (including reasonable legal fees and costs) related to such claim
10.1 You agree to the use of electronic communication in order to enter into contracts, place orders, and create other records and to the electronic delivery of notices, policies and changes thereto and records of transactions with eXalt.
10.2 For your convenience, eXalt may provide you with a translation of the English language version of these Terms. In the event of any inconsistency between a non-English version of these Terms and the English version, the English version shall govern your relationship with eXalt.
10.3 The terms of this Agreement constitute the entire agreement between you and eXalt with respect to your use of any software, products, or services offered and or provided to you by eXalt, including the SaaS,. This Agreement replaces any prior agreements between you and eXalt regarding any product, software, or service.
10.4 If any provision of these Terms (or part of it), is found by any court or administrative body of competent jurisdiction or an arbitrator to be illegal, invalid or unenforceable, then such provision (or part of it) shall be removed from the Terms without affecting the legality, validity or enforceability of the remainder of this Agreement.
10.5 The failure by eXalt to exercise, or delay in exercising, a legal right or remedy provided by this Agreement or by law shall not constitute a waiver of eXalt’s right or remedy. If eXalt waives a breach of these Terms, this shall not operate as a waiver of a subsequent breach of this Agreement.
10.6 You may not assign this Agreement. eXalt may, without prior notice, assign its rights or obligations pursuant to this Agreement to any third party.
10.7 Section 10, along with sections, 4, 6, 7, and 9 and any other provisions of this Agreement, which are expressed or clearly intended to survive or operate in the event of termination, shall survive termination section 8.
10.8 You acknowledge and agree that if eXalt is unable to provide the SaaS or any eXalt software, products and/or services as a result of a force majeure event, eXalt will not be in breach of any of its obligations towards you under this Agreement. A force majeure event means any event beyond the control of eXalt.
10.9 This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts and shall be governed by the United States Federal Arbitration Act. If you and eXalt or any of its successors and/or assigns do not resolve any dispute by informal negotiation or in small claims court, any other effort to resolve the dispute will be conducted exclusively by binding arbitration governed by the United States Federal Arbitration Act (“FAA”). You are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. Instead, all disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. Any court with jurisdiction over the parties may enforce the arbitrator’s award.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO access, use, execute, interpret, or process the SAAS or any other eXalt software, service, and/or product, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO EXALT THE RIGHTS SET FORTH HEREIN in their entirety.