IN THE ABSENCE OF A CUSTOM SERVICES AGREEMENT, THIS EXOSITE SERVICES AGREEMENT (“AGREEMENT”) GOVERNS USE OF EXOSITE SERVICES (“SERVICES”) IN ACCORDANCE WITH TERMS SET FORTH BELOW. BY ACCEPTING THIS AGREEMENT, BY CLICKING THE 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 use the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Online Services for the purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes. This Agreement was last updated on February 22, 2016. It is effective between You and Us as of the date of Your acceptance of this Agreement.
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 Our Online 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 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, licensees, and agents who need such access for purposes consistent with this Agreement.
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 Online Services except as permitted herein; (ii) create derivate works based on the Online Services; (iii) copy, frame, or mirror any part or content of the Online Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes; (iv) reverse engineer the Online Services; (v) access the Online Services in order to build a competitive product or service or to copy any features, functions, or graphics of the Online Services; (vi) use the Online 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; (vii) use the Online Services to store or transmit malicious code or malware, or to engage in phishing or other fraudulent activity; (viii) interfere with or disrupt the integrity or performance of the Online Services or third-party data contained therein; or (ix) attempt to gain unauthorized access to the Online Services, Our systems, 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 Application Resources; (iii) enter into Exosite-approved agreements with Your Partners and Customers excluding warranties and limiting the liability of Exosite due to their use of the Online Services; (iv) use commercially reasonable efforts to prevent unauthorized access to or use of the Online Services and notify Us promptly of any such unauthorized access or use; (v) use the Online Services only in accordance with applicable laws and government regulations; and (vi) provide Us with complete and accurate contact information.
OWNERSHIP AND LICENSES
Subject to the limited rights expressly granted hereunder, We reserve all rights, title, and interest in and to Our Online Services and other Proprietary Software, including all related intellectual property rights subsisting therein. We grant no rights to You hereunder other than as expressly set forth herein.
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 Application Resources solely as necessary for Us to provide the Online Services in accordance with this Agreement.
You grant us a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into our Online Services any suggestions, enhancement requests, recommendations, or other feedback provided by You relating to the Online Services.
Property Rights Retained by Us
You acknowledge that We may incorporate certain computer code, methods, inventions, concepts, and know-how into any source code, compiled code, custom software, or other programming or design work delivered by Us to You (“Deliverables”) that were not or will not be created solely for use in or with such Deliverables. You acknowledge that such code, methods, inventions, concepts, and know-how will not become Your property, and that the rights therein are part of Our stock in trade and general know‑how that will remain Our sole and unencumbered property, without any claim of Yours thereto, other than a perpetual paid-up license to use the same as incorporated in, and only as incorporated in, the Deliverables or any derivatives thereof.
Our Proprietary Software
You expressly acknowledge that existing proprietary software of Ours and software of third parties, which is provided by Us for use in conjunction with any Deliverables (including subsequent versions of proprietary software of Ours, or third-party software, and enhancements thereof provided by Us), is and will remain the sole and exclusive property of Ours or such third parties, subject only to Your rights pursuant to license agreement(s) for such software.
RELATIONSHIP TO THE PARTIES
You and We are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You are in no way authorized to make any license, contract, agreement, warranty, or representation on behalf of Us, or to create any obligations, expressed or implied, on behalf of Us except to the extent and for the purposes expressly provided for and set forth herein.
OTHER THAN ANY EXPRESS WARRANTIES MADE IN SUBSEQUENT PARAGRAPHS IN THIS SECTION, WE MAKE NO WARRANTIES OF ANY KIND, WHETHER 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. IN ADDITION, WE MAKE NO WARRANTIES REGARDING ANY THIRD-PARTY SOFTWARE OR PRODUCTS PROVIDED TO OR USED BY YOU. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT REPRESENT OR WARRANT THAT YOUR USE OF THE ONLINE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT YOUR USE OF THE ONLINE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR.
LIMITATION OF LIABILITY
EXCEPT FOR BREACHES OF CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS IN SECTION: INDEMNITY BELOW, EACH PARTY HERETO: (I) EXPRESSLY WAIVES ANY AND ALL CLAIMS AGAINST THE OTHER FOR CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, CLAIMS FOR LOST PROFITS, REVENUES, DATA, OR INTERRUPTIONS IN SERVICE) ARISING OUT OF OR RELATED TO THE PROVISION OF ANY SERVICES OR WORK PRODUCT PURSUANT TO THIS AGREEMENT; AND (II) EXPRESSLY AGREES THE MAXIMUM LIABILITY FOR US WITH RESPECT TO ANY CLAIM RELATED TO THIS AGREEMENT OR THE SERVICES HEREUNDER WILL BE LIMITED TO THE AMOUNT OF FEES RECEIVED BY US FOR SERVICES IN THE PRECEDING 12 MONTHS.
EACH PARTY WILL INDEMNIFY, DEFEND, AND HOLD THE OTHER HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS OF LITIGATION) BY ANY THIRD PARTY RESULTING FROM ANY ACTS OR OMISSIONS OF THE INDEMNIFYING PARTY RELATING TO ITS ACTIVITIES IN CONNECTION WITH THIS AGREEMENT, THEIR BREACH OF THIS AGREEMENT, OR THEIR MISREPRESENTATIONS RELATING TO THE OTHER PARTY, THE SERVICES, OR THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION.
TERM AND TERMINATION
This Agreement commences on the date You accept it and continues until terminated by either party in accordance with this Agreement. Upon any termination of Your subscription to the Online Services, this Agreement shall also terminate, subject to the Surviving Provisions.
UPON ANY TERMINATION OF YOUR SUBSCRIPTION TO THE ONLINE SERVICES, YOUR INFORMATION AND OTHER MATERIALS DEVELOPED BY YOU USING THE ONLINE SERVICES MAY BE PERMANENTLY LOST.
Online Services Termination
You may terminate Your subscription to the Online Services without cause at any time upon written request to Us. Such requests shall be deemed accepted by a written response verifying We received Your request.
We may terminate Your subscription to the Online Services at any time without cause upon 30 days’ written notice to You, or automatically if you fail to comply with any term or condition of this Agreement.
The following sections shall survive any termination or expiration of this agreement: Property Rights Retained by Us, Our Proprietary Software, Warranties, Limitation of Liability, Indemnity, and General Provisions.
CHANGES TO ONLINE SERVICES
As part of the normal process of operating and updating the Online Services, We reserve the right at any time and from time to time to enhance, amend, or modify the features of the Online Services (or any part thereof) with or without notice. Notwithstanding the forgoing, We will use commercially reasonable efforts to notify You in writing of any major change to the Service that is known to have a substantially negative material impact to You.
The Services being subscribed to, and their associated fees and engagement levels, are described at https://exosite.com/business.
The Online Services are billed for on a monthly basis and are non-refundable. There are no refunds or credits for partial months of service, plan downgrades, or refunds for months unused. You are responsible for paying all charges in accordance with the use of the Online Services associated with Your Data and Your Application Resources, even if you did not use or authorize the use of the Online Services. If You cancel Your subscription to the Online Services before the end of the current month, Your cancellation will take effect immediately and You will not be charged again, but You shall be responsible for all charges already incurred.
Payment for Online Services
We may choose to bill for Online Service Fees through an invoice, in which case, full payment for invoices issued in any given month must be received by Us 30 days after the date of the invoice, or the Online Services may be terminated or suspended as soon as one day after the date due as indicated on the invoice. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. You have 30 days after receiving the invoice to dispute any charges. Agreed-upon changes to a past invoice will be reflected in the next applicable invoice to You.
If payment has been authorized by credit card, no additional notice or consent will be required for billings to that credit card for all amounts (including late charges and termination fees).
We reserve the right to annually change our Fees (“Fee Changes”) for all Services, including but not limited to monthly subscription plan fees to the Online Services, upon 30 days’ notice via email from Us.
You will pay any and all applicable taxes, however designated, incurred as a result of or otherwise in connection with this Agreement or the Services, excluding taxes based on Our net income.
Any notice to be given under this Agreement will be sufficient if in writing and sent by certified or registered mail or delivered by courier to the addresses set forth at the beginning of this Agreement. A party’s address or designee for purposes of any notices may be changed by written notice to the other party.
This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, either written or oral, concerning its subject matter.
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.
Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services.
Neither party may assign any interest in this Agreement or any of its duties or rights under this Agreement without the prior written consent of the other except that: (i) each party may assign its rights and obligations to an Affiliate of such party upon advance written notice to the other; and (ii) either party may assign its rights and obligations upon advance notice to the other in connection with any merger, acquisition, or sale of all or substantially all of its assets.
“Affiliate” means any entity that 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.
“Online Services” means the online services provided by Us as described in this Agreement that You manage at: https://exosite.com/business.
“Proprietary Software” means the software that is developed, licensed, or purchased by Us, and includes our Online Services and other software that can be deployed onto embedded systems, computers, handheld systems, and servers.
“Services” means Online Services.
“We,” ” Us,” or ” Our” means Exosite LLC, a Delaware Limited Liability Corporation with a principal place of business at 275 Market Street, Suite 535, Minneapolis, Minnesota, 55405, United States of America.
“You” or “Your” means: (i) the company or other legal entity for which you are accepting this Agreement and Affiliates of that company or entity; or (ii) an individual, in the case of a non-legal entity as defined in the registration information provided to Us.
“Your Application Resources” means a web, server, personal computer, or handheld application and related configuration parameters, 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 or Your Customers or Your Partners, to the Online Services.
“Your Partners” and “Your Customers” means any individuals or entities that are neither You nor your Affiliates, but who use the Online Services.