Terms & Conditions
THIS EXOSITE ONLINE SERVICES AGREEMENT (“AGREEMENT”) GOVERNS YOUR USE OF OUR EXOSITE ONLINE SERVICES (“SERVICES”). BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, YOU AGREE TO 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 AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. This Agreement was last updated on September 25, 2009. It is effective between You and Us as of the date of Your acceptance of this Agreement.
OUR PROPRIETARY RIGHTS
Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights subsisting therein. We grant no rights to You hereunder other than as expressly set forth herein.
Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
You shall not (i) permit any third party to access the Services except as permitted herein, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, (v) access the Services in order to build a competitive product or service or to copy any features, functions or graphics of the Services, (vi) sell, resell, rent or lease the Services, (vii) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, (viii) use the Services to store or transmit malicious code or malware, or to engage in phishing or other fraudulent activity, (ix) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (x) attempt to gain unauthorized access to the Services or Our systems or Our data or networks.
You shall (i) be responsible for Your compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of, and for the means by which You acquired, Your Data and Your Portals, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, (iv) use the Services only in accordance with applicable laws and government regulations, and (v) provide Us with complete and accurate contact information.
WHAT WE LICENSE TO YOU
We grant you a worldwide license during the term of this Agreement to use the Services to collect and view Your Data.
WHAT YOU LICENSE TO US
You grant us a worldwide license to use, reproduce, transmit, display and adapt Your Data and Your Portals solely as necessary for Us to provide the Services in accordance with this Agreement.
You grant us a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into our services any suggestions, enhancement requests, recommendations or other feedback provided by You relating to the operation of the Services.
EXCLUSION OF WARRANTIES
WE MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT REPRESENT OR WARRANT THAT YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR.
LIMITATION OF LIABILITY
IN NO EVENT SHALL WE HAVE ANY LIABILITY TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, WE SHALL HAVE NO LIABILITY FOR LOSS OF PROFITS, REVENUE OR DATA OR FOR INTERRUPTIONS IN SERVICE. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
TERM AND TERMINATION
This Agreement commences on the date You accept it and continues until terminated by either party in accordance with this Agreement. You may terminate Your subscription to the Services without cause at any time upon written notice to Us. We may terminate Your subscription to the Services at any time without cause upon 7 days’ written notice to You, or (b) automatically if you fail to comply with any term or condition of this Agreement. Upon any termination of Your subscription to the Services, this Agreement shall also terminate, subject to the Surviving Provisions. UPON ANY TERMINATION OF YOUR SUBSCRIPTION TO THE SERVICES, YOUR INFORMATION, AND OTHER MATERIALS DEVELOPED BY YOU USING THE SERVICES WILL BE PERMANENTLY LOST.
Surviving Provisions. The following sections shall survive any termination or expiration of this agreement: Our Proprietary Rights, Exclusion of Warranties, Limitation of Liability, and General Provisions.
CHANGE TO TERMS
We may make changes to this Agreement from time to time. When these changes are made, We will make the updated Terms available on exosite.com. You understand and agree that if you use the Services after the date on which this Agreement has changed, We will treat Your use as acceptance of the updated Terms.
The Services are currently provided at no charge. We reserve the right to change our pricing policies for the Services at any time on 7 days’ notice given via email.
Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
Governing Law. This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the internal laws of the State of Minnesota, without regard to their conflicts of laws rules.
Venue; Waiver of Jury Trial. The state and federal courts located in Hennepin County, Minnesota shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services.
Assignment. You may not assign any of the rights or obligations give You hereunder, whether by operation of law or otherwise, without the prior written consent of Us (not to be unreasonably withheld).
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Exosite Online Services” means the online servi ces provided by Us as described in this Agreement that You access through exosite.com and related sub-domains.
“We,” “Us” or “Our” means Exosite LLC, a Delaware Limited Liability Corporation with a principal place of business at 227 Colfax Avenue North, Suite 260, Minneapolis, Minnesota, 55405, United States of America.
“You” or “Your” means 1) the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity, or 2) an individual , in the case of a non-legal entity as defined in the registration information provided to Us. “Your Portal” means a web application that We, You, or a third party acting on Your behalf, create and that interoperates with the Services. “Your Data” means all electronic data or information submitted by You, or by devices owned by You, to the Services.