CUSTOMER TERMS AND CONDITIONS
These Customer Terms and Conditions (“Customer Terms”), along with a signed Order Form (or other similar ordering document signed by the parties) (“Order Form”) between Exigo, Inc. (“Provider”) and the customer named in the Order Form (“Customer”) form a binding agreement between Provider and Customer (the “Agreement”). The Agreement includes the Order Form, these Customer Terms and any other document incorporated by reference into either the Order Form or these Customer Terms. Capitalized terms used but not otherwise defined in these Customer Terms are defined in the Order Form.
THESE CUSTOMER TERMS GOVERN CUSTOMER’S USE OF THE SERVICES IDENTIFIED IN A SIGNED ORDER FORM (the “Services”). CUSTOMER SHOULD READ THESE CUSTOMER TERMS CAREFULLY.
CUSTOMER AGREES TO THESE CUSTOMER TERMS, EITHER BY: (A) EXECUTING AN ORDER FORM THAT INCORPORATES THESE CUSTOMER TERMS BY REFERENCE; OR (B) USING THE SERVICES. If Provider and Customer sign a written services agreement that specifically supersedes these Customer Terms, then that written agreement, and not these Customer Terms will govern Customer’s use of the Services.
1. SERVICES AND SUPPORT
1.1 Services. Subject to all of the terms of this Agreement, including Customer’s timely payment of Fees (as defined herein), Provider will make the Services available to Customer in accordance with this Agreement. Provider may provide the Services using its own infrastructure or using a third party cloud computing services provider. Provider may, in its sole discretion, modify, enhance and/or expand the Services at no additional cost to Customer. Provider may also modify, enhance or expand the Services by providing additional features or functionality, which may, but are not required to be, added by Customer to this Agreement at additional cost. Such additional cost features and functionality may be added by mutual written agreement of the parties. Customer acknowledges that its purchase of Services hereunder are not contingent on the delivery of any future functionality or features.
1.2 Availability. Provider will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Provider will provide at least 8 hours electronic notice and which Provider will schedule, to the extent practicable, during the weekend hours), and (b) any unavailability caused by circumstances beyond Provider’s reasonable control, including, but not limited to, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Provider’s employees), Internet service provider failure or delay, failure or delay of service from any third party cloud computing services provider, or denial of service attack.
1.3 Support. Subject to all of the terms of this Agreement, including Customer’s timely payment of Fees (as defined herein), Provider will provide Customer (at no additional charge) with standard technical support services in accordance with Provider’s support services policy, as published by Provider from time-to-time. Provider’s current support services policy is available at: http://exigo.io/support-policy. Provider has the right to change, modify or amend its support services policy at any time in its sole discretion. Additional or upgraded support services may be available for an additional fee.
1.4 Implementation Services. From time to time, so long as this Agreement remains in full force and effect, Provider and Customer may, but are under no obligation to, enter one or more statements of work (each, an “SOW”) to engage Implementation Services or other professional services by Provider. Implementation Services or other professional services will only be provided pursuant to a signed Order Form and/or an SOW. Each SOW shall contain, at a minimum, the following information: (i) the scope of the Implementation Services or other professional services to be provided; (ii) applicable rates and fees; (iii) responsibilities and dependencies of each party; (iv) agreed upon work product and specific deliverables, if any; and (v) signatures of authorized representatives. Provider have no obligation to provide Implementation Services or other professional services without a fully-executed SOW. Each SOW, regardless of whether it relates to the same subject matter as any previously executed SOW(s), shall become effective upon execution by authorized representatives of both parties.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Services are subject to usage limits that are specified in the Order Forms. Unless otherwise specified in the applicable Order Form: (a) Services are purchased as user subscriptions and the Services may not be accessed by more than the number of individual users (each a “User”) specified in the applicable Order Form(s); and (b) a User’s password may not be shared with any other individual. If Customer exceeds a contractual usage limit, Provider may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding these efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of Users promptly upon request, and/or pay any invoice for excess usage in accordance with this Agreement. Additional Users may be purchased during the Term by signing an additional Order Form and paying the additional fees for such additional Users.
2.3 Customer will not, directly or indirectly, do any of the following: (a) make any Services available to, or use any Services for the benefit of, anyone other than Customer or its authorized Users; (b) sell, resell, license, sublicense, distribute, rent or lease any Services; (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) interfere with or disrupt the integrity or performance of any the Services; (e) attempt to gain unauthorized access to any Services; or (f) permit direct or indirect access to or use of any Services in a way that circumvents a contractual usage limit.
2.4 Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); (b) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Provider or authorized within the Services); (c) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or (d) remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Provider hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
2.5 Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
2.6 Although Provider has no obligation to monitor Customer’s use of the Services, Provider may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of this Section 2 or any other provision in this Agreement.
2.7 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Provider includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes non-public data provided by Customer to Provider to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect the Proprietary Information of the Disclosing Party; and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person the Proprietary Information of the Disclosing Party. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document: (a) is or becomes generally available to the public; (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; (d) was independently developed without use of any Proprietary Information of the Disclosing Party; or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Provider shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Customer hereby grants Provider a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services and/or Software any suggestions, enhancement requests, recommendations, correction or other feedback provided by Customer, including Users, relating to the functionality and/or operation of the Services and/or Software.
3.4 Notwithstanding anything to the contrary, Provider shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Provider shall also have the right (during and after the Term hereof) to use such information and data to (a) improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Provider offerings and (b) disclose such data, so long as it doesn’t otherwise disclose the Proprietary Information of Customer.
3.5 No rights or licenses are granted except as expressly set forth herein.
4. FEES AND PAYMENT FOR SERVICES
4.1 Customer will pay Provider the applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms of this Agreement (the “Fees”).
4.2 Provider will invoice Customer for Fees due under this Agreement. All invoices are due and payable within thirty (30) days following Customer’s receipt of the invoice. Unpaid amounts are subject to an interest charge of 1.5% per month on any outstanding balance, or the maximum permitted by law. Customer shall reimburse Provider for all expenses of collection of past due amounts.
4.3 Customer is responsible for all taxes associated with Services other than U.S. taxes based on Provider’s net income
4.4 If Customer’s use of the Services exceeds any of the limitations set forth on the Order Form or otherwise requires the payment of additional Fees, Customer shall be billed for such usage and Customer agrees to pay the additional Fees in the manner provided herein.
4.5 Provider reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email).
4.6 If Customer believes that Provider has billed Customer incorrectly, Customer must contact Provider no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Provider’s customer support department.
4.7 If any amount owing by Customer is thirty (30) or more days overdue, Provider may, without limiting its other rights and remedies, suspend the Services to Customer until such amounts are paid in full.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods renewal periods as specified in the Order Form (collectively, the “Term”), unless either party gives written notice of non-renewal to the other party at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ written notice (or five (5) days’ written notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided.
5.3 Upon any termination, Provider will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Provider may, but is not obligated to, delete stored Customer Data.
5.4 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. PROVIDER WARRANTIES; DISCLAIMER
6.1 Provider shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Provider or by third-party providers, or because of other causes beyond Provider’s reasonable control, but Provider shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Provider does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.
6.2 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Each party (“Indemnifying Party”) shall indemnify and defend the other party and its officers, directors, shareholders, members, managers, employees, agents and affiliates (each, an “Indemnified Party”) against any claim, including costs and reasonable attorney’s fees, in which the Indemnified Party is named as a result of the grossly negligent or intentional acts or omissions of the Indemnifying Party, its employees or agents, while performing its obligations pursuant to this Agreement, which result in death, personal injury or property damage; provided that (a) the Indemnified Party gives the Indemnifying Party prompt notification in writing of any such claim and reasonable assistance, at the Indemnifying Party’s expense, in the defense of such claim; and (b) the Indemnifying Party has the sole authority to defend or settle such claim as long as such settlement shall not impose a financial obligation on, or include an admission of liability by, the Indemnified Party.
8. LIMITATION OF LIABILITY
8.1 PROVIDER AND ITS LICENSORS AND SUPPLIERS ARE NOT RESPONSIBLE OR LIABLE WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELTED TO THIS AGREEMENT UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITIATION, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR ANY: (A) INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR SPECIAL DAMAGES; (B) LOSS OF BUSINESS BY CUSTOMER, ERROR OR INTERRUPTION OF USE OF THE SERVICES, LOSS OR INACCURACY OR CORRUPTION OF CUSTOMER DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; OR (C) ANY MATTER BEYOND PROVIDER’S REASONABLE CONTROL; IN EACH CASE, WHETHER OR NOT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 PROVIDER AND ITS LICENSORS AND SUPPLIERS ARE NOT BE RESPONSIBLE OR LIABLE FOR ANY DAMAGES OR OTHER LIABIITIES ARISING OUT OF OR RELATING TO THIS AGREEMENT THAT EXCEED, IN THE AGGREGATE (WHEN TAKEN TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS) THE FEES PAID BY CUSTOMER TO PROVIDER FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE EVENT OR ACT THAT GAVE RISE TO THE LIABILITY.
8.3 The limitations on liability in this Section 8 do not apply: (a) to claims based on personal injury or death; (b) in the event of gross negligence on the part of Provider or its licensors or suppliers; or (c) if prohibited by applicable law.
9.1 To the extent a Customer purchase order or similar document contains terms and conditions that are different from or inconsistent with this Agreement, such terms are hereby rejected and this Agreement shall control over any such different or inconsistent terms.
9.2 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
9.3 This Agreement is not assignable, transferable or sublicensable by Customer except with Provider’s prior written consent. Provider may transfer and assign any of its rights and obligations under this Agreement without consent.
9.4 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
9.5 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
9.6 This Agreement shall be governed by the laws of the State of Texas without regard to its conflict of laws provisions,
9.7 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
9.8 No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Provider in any respect whatsoever.