XIGNITE, INC. ONLINE WEB SERVICE SUBSCRIPTION AGREEMENT
Last Updated: January 8, 2019
YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING THE CHECKBOX OR BY ACCESSING OR USING THE SITE, WEB SERVICES, DATA OR THIRD PARTY DATA, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, WEB SERVICES, DATA OR THIRD PARTY DATA. If you accept or agree to this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement and, in such event; “Customer”, “You” and “Your” will refer and apply to that company or other legal entity.
Provider reserves the right to modify, discontinue or terminate the Site, Web Services, Data and Third Party Data or to modify this Agreement, at any time and without prior notice. If Provider modifies this Agreement, Provider will post the modification on the Site or provide you with notice of the modification. Provider will also update the “Last Updated Date” at the top of this Agreement. By continuing to access or use the Site, Web Services, Data and Third Party Data after Provider has posted a modification on the Site or has provided you with notice of a modification, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to You, Your only recourse is to cease using the Site, Web Services, Data and Third Party Data.
In order to access the Site, Web Services, Data and Third Party Data, You must register to create an account (“Account”). During the registration process, You will be required to provide certain information and You will establish a password. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Provider reserves the right to suspend or terminate Your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding Your password. You agree not to disclose Your password to any third party and to take sole responsibility for any activities or actions under Your Account, whether or not You have authorized such activities or actions. You will immediately notify Provider of any unauthorized use of Your Account.
7 DAY FREE TRIAL
Upon registration to use the Site, Web Services, Data and Third Party Data, the Provider will provide a restricted use, free trial of the Site, Web Services, Data and Third Party Data for seven (7) days (the “Free Trial”). THE RESTRICTIONS OF THE FREE TRIAL ARE DETERMINED SOLELY AT THE DISCRETION OF THE PROVIDER AND MAY BE MODIFIED AT ANY TIME. THE FREE TRIAL IS PROVIDED ONCE AND ONLY UPON YOUR FIRST REGISTRATION AT THE SITE FOR A SINGLE SEVEN (7) DAY PERIOD. THE FREE TRIAL IS NOT PROVIDED UPON SUBSEQUENT REGISTRATION BY CUSTOMER OR CUSTOMER’S AGENTS OR AFFILIATES.
Upon completion of the Free Trial, access to the Site, Web Services, Data and Third Party Data will terminate until and unless the Customer selects and agrees to purchase a Subscription Plan and a Support Plan for continued use of the Site, Web Services, Data and Third Party Data. Upon selection and purchase, access to the Site, Web Services, Data and Third Party Data will be provided in accordance with the terms of the specific Subscription Plan selected by the Customer via the Site.
LICENSES AND DATA
Web Services License. Subject to Customer’s compliance with the terms and conditions of this Agreement, Provider grants to Customer a limited, non-exclusive, non-transferable, license to access and use the Web Services solely for its business purposes. This Agreement governs Customer’s access to and use of the Web Services and the Site. Customer acknowledges and agrees that but for this Agreement, Customer would have no rights or access to the Web Services and the Site.
Rights in Data License. Subject to Customer’s compliance with the terms and conditions of this Agreement, Provider grants to Customer a limited, non-exclusive, non-transferable, license to access and use the Data and Third Party Data available via the Web Services solely for its business purposes. In addition, any Third Party Data may be subject to restrictions of use and require additional license agreements with the Data Owner. While Provider may, in its sole discretion, offer administrative assistance to Customer in obtaining such additional licenses, Customer is solely responsible for obtaining all required license agreements with each Data Owner pursuant to Customer’s use of such Third Party Data. If Customer does not obtain a required license agreement for any portion of the Third Party Data and as such is in violation of the Data Owner’s licensing requirements, Provider may terminate access to the unlicensed portion of Third Party Data until Customer obtains such license agreements with the Data Owner.
Proprietary Rights. Subject to the limited rights expressly granted hereunder, Customer acknowledges that the Data, Third Party Data, Web Services, Site, and/or any developments to the Data, Third Party Data, Web Services, and Site that result from services provided under the Support Plan (“Developments”) provided to Customer hereunder are proprietary in nature and owned exclusively by Provider and/or the Data Owners. The Data, Third Party Data, the Web Services, as well as the Developments are to be used exclusively as described herein.
Restrictions on the Web Services.
Restrictions on the Data and Third Party Data.
Enforcement. Except as otherwise provided herein, Customer is responsible for all of Customer’s activities occurring through its use of the Web Services.
Telecommunications and Internet Services. Customer acknowledges that the use of the Web Services by Customer is dependent upon access to telecommunications and Internet services. Customer will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Web Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing.
TERM AND TERMINATION
Term. This Agreement will commence when You click “I accept” or “I agree” and shall continue for the Free Trial. Thereafter, this Agreement shall renew on the date of purchase (the “Start Date”) of the Subscription Plan, if any, that you select to purchase to use the Web Services, Data or Third Party Data. This Agreement shall continue from the Start Date through the initial term specified by the Subscription Plan (the “Initial Term”). At the end of the Initial Term, this Agreement will automatically renew on the day following the last day of the Initial Term (“First Renewal Date”) and will automatically renew thereafter on the first day of each renewal period (“Renewal Period”) as specified by the Subscription Plan, unless either party provides to the other written or electronic notice of termination in accordance with the terms of this Agreement. The Free Trial, Initial Term specified by the Start Date and the First Renewal Date of the Subscription Plan, and each subsequent renewal term specified by the First Renewal Date and the Renewal Period of the Subscription Plan are collectively the “Term”.
Right to Terminate. Either party may terminate this Agreement at any time during the Free Trial. After the Start Date, either Party may terminate this Agreement for any reason prior to the beginning of each renewal term as indicated by the First Renewal Date and the Renewal Period of the Subscription Plan by delivering written or electronic notice of termination at least thirty (30) days prior to the beginning of each renewal term. Notwithstanding the foregoing, either party may terminate this Agreement at any time in the event that the other party breaches any material term of this Agreement and fails to remedy such breach within ten (10) business days after receipt of a written notice of any such breach, or if such breach cannot be remedied within that period of time, fails to demonstrate to the satisfaction of the non-breaching party that it is taking steps reasonably necessary to remedy the breach.
Inability to Provide Data and Third Party Data. If Provider ever loses the license, right or ability to provide any portion of the Data or Third Party Data, or such license or right is ever interrupted or otherwise impaired, then Provider agrees to notify Customer of such fact if permitted to do so and Customer may immediately terminate use of any portion of the Web Services and Provider will refund the prorated Subscription Fees (defined below) associated with the unused portion of the Web Services.
Survival. The provisions of the Definitions Section and Sections that by their nature should reasonably survive, and any amendments to the provisions of the aforementioned will survive any termination or expiration of this Agreement.
Subscription Fees. Customer will pay to Provider fees in connection with the Subscription Plan and the Support Plan selected by Customer to use the Web Services, Data, and Third Party Data (“Subscription Fees”). Thereafter, Subscription Fees for Customer’s use of the Web Services, Data and Third Party Data shall be (i) as described and/or as selected by You via the Site in connection with purchase to use the Web Services, Data and Third Party Data or (ii) negotiated between You and Provider by creating an addendum to this Agreement. Unless otherwise negotiated between You and Provider in an addendum to this agreement, all Subscription Fees are due at the beginning of each subscription term as specified in the Subscription Plan and Provider will charge the method of payment You provide via the Site in the amount of the Subscription Fees in connection with the Subscription Plan that You select. Subscription Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Provider’s net income.
Web Services Overage Fee Adjustment. Provider will notify Customer in writing should Customer exceed its average volume limit associated with a Web Service over a two (2) week period. Upon notification, Customer will have two (2) weeks to reduce its volume to comply with its current Web Service volume limitation. Should Customer continue to exceed its Web service volume limit, Provider will upgrade Customer’s current Web Service level to accommodate the higher volumes and adjust the Subscription Fee accordingly. Should Customer decline to accept the adjustment, Provider can terminate the agreement in accordance with the Terms & Termination.
Prorated Refund of Subscription Fees. Upon termination of this Agreement, any unused prepaid Subscription Fees will be refunded to Customer no later than thirty (30) days from the date of termination. The refund amount will be the difference between the prepaid Subscription Fees and the pro-rated portion of the Subscription Fees due for use of the Web Services up to the date of termination calculated on a daily basis as the number of days in the current term prior to the date of termination divided by the total number of days in the current term.
Service Level. Provider will use its reasonable business efforts to ensure that the Web Services operate according to the service levels specified in the Support Plan, except for reasonable service interruptions due to Excusable Delays (defined below) or regularly scheduled maintenance. Provider further agrees that it will use its reasonable business efforts to prevent and/or rapidly respond to and remedy any interruption to the operation of the Web Services caused by third parties from unlicensed use, viruses, malicious code, denial of service attacks, or other external tampering with the Web Services. HOWEVER, UNLESS OTHERWISE PROVIDED IN THIS AGREEMENT, PROVIDER MAKES NO OTHER WARRANTY REGARDING THE OPERATION OF THE WEB SERVICES.
Support Services. Provider will provide support to Customer related to the Web Services in accordance with the provisions of the Support Plan Customer selects upon purchase to use the Web Services for the duration of this Agreement. Support services may include the following: (i) assistance with the proper use of the Web Services, and (ii) programming to correct any demonstrated errors in the Web Services necessary to enable the Web Services to operate in accordance with the service levels specified in the Support Plan.
Customer Responsibilities. Customer will promptly report any errors in the operation of the Web Services to Provider and will not take any actions that would increase the severity of the error. Customer will use the Web Services solely as described herein. In the event that Customer violates any of the requirements of this Section, Provider will have no responsibility to provide Support.
Enhancements and Modifications. Provider will provide to Customer enhancements or modifications (“Updates”) to the Web Services as they become available. Customer acknowledges that additional Subscription Fees may be charged for the use of Updates, and that Provider has sole discretion in identifying which Updates require the payment of additional Subscription Fees. Provider acknowledges that Customer has sole discretion in deciding to use Updates and is only responsible for additional Subscription Fees for those Updates that Customer decides to use. Should Customer decide to use Updates that require additional Subscription Fees, then new Subscription Fees for Customer’s use of the Web Services shall be (i) as described and/or as selected by You via the Site in connection with purchase to use the Web Services, Data and Third Party Data or (ii) negotiated between You and Provider by creating an addendum to this Agreement. Provider agrees and acknowledges that Customer has spent time and resources to integrate the Web Services into Customer’s computer systems. As a result, Provider agrees to notify Customer in writing at least thirty (30) business days prior to introducing any Update that will affect or impair the operation, functionality, or business purpose of the Web Services. Should any Update remove or alter any function of the Web Services or any portion the Data or Third Party Data that was available prior to the Update, such that it degrades the functioning of Customer’s computer systems, Customer may immediately terminate this Agreement.
WARRANTIES, INDEMNITY, AND LIMITATION OF LIABILITY
Indemnification by Provider. Provider agrees to defend (or settle), indemnify and hold Customer, its employees, directors and officers harmless from and against any and all liabilities, losses, damages, or expenses (including court costs and reasonable attorneys fees) in connection with any third party claim that the Web Services, Data or Third Party Data infringe or misappropriate any Intellectual Property Rights (defined below) of any third party, only to the extent the liabilities, damages, or expenses result from use of the Web Services that is within the scope of this Agreement, provided that Customer does not make any admission of Provider guilt without Provider’s prior written approval and provided that Customer gives Provider (i) prompt written notification of the claim or action, (ii) sole control and authority over the defense or settlement thereof, and (iii) all reasonably available information, assistance and authority to settle and/or defend any such claim or action. As used in this Section, “Intellectual Property Rights” specifically includes, without limitation, any patent, copyright, trade mark, trade name, trade dress, trade secret, service mark, service name, title, slogan, proprietary process, or any other intellectual property right.
Indemnification by Customer. Customer agrees to defend (or settle), indemnify and hold Provider, its employees, directors and officers harmless from and against any and all liabilities, losses, damages, or expenses (including court costs and reasonable attorneys fees) in connection with any third party claim that the Customer’s use of the Web Services or Data in violation of this Agreement infringes or misappropriates any Intellectual Property Rights of any third party, provided that Provider does not make any admission of Customer guilt without Customer’s prior written approval and provided that Provider gives Customer (i) prompt written notification of the claim or action, (ii) sole control and authority over the defense or settlement thereof, and (iii) all reasonably available information, assistance and authority to settle and/or defend any such claim or action.
Warranty Disclaimers. OTHER THAN SPECIFICALLY SET FORTH HEREIN, (i) THE WEB SERVICES, SITE, DATA, AND THIRD PARTY DATA ARE DELIVERED TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, ACCURACY OF INFORMATION PROVIDED, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, QUALITY, OR PERFORMANCE, (ii) PROVIDER MAKES NO WARRANTY THAT THE SITE, DATA, OR THIRD PARTY DATA WILL MEET CUSTOMER’S SPECIFIC OBJECTIVES OR NEEDS; (iii) PROVIDER MAKES NO WARRANTY THAT THE WEB SERVICES, SITE, DATA, OR THIRD PARTY DATA WILL BE FREE FROM ERRORS OR BUGS; and (iv) PROVIDER MAKES NO WARRANTY THAT THERE WILL BE UNINTERRUPTED OPERATION OF THE WEB SERVICES, SITE, DATA, AND THIRD PARTY DATA. CUSTOMER ACKNOWLEDGES THAT (i) ANY DATA DOWNLOADED THROUGH THE USE OF THE WEB SERVICES AND SITE IS DONE AT ITS OWN DISCRETION AND RISK, AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF APPLICATIONS OR DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH DATA and (ii) THE FOREGOING EXCLUSIONS AND DISCLAIMERS OF WARRANTIES ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE PRODUCTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PROVIDER OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
Accuracy of Data and Third Party Data. PROVIDER MAKES NO WARRANTY REGARDING THE DATA, THIRD PARTY DATA OR ANY OTHER INFORMATION PURCHASED OR OBTAINED THROUGH PROVIDER’S SITE AND/OR THE WEB SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY DATA, THIRD PARTY DATA OR OTHER INFORMATION OBTAINED THROUGH PROVIDER’S WEBSITE AND/OR THE WEB SERVICES.
Limitation of Liability. UNLESS OTHERWISE PROVIDED HEREIN, IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY TO CUSTOMER AND ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S ACCESS TO OR USE OF THE WEB SERVICES EXCEED THREE (3) MONTHS PRORATED SUBSCRIPTION FEES, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION. PROVIDER WILL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR RELIANCE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR ANY DAMAGES RESULTING FROM ANY INTERRUPTION OR DISRUPTION IN COMMUNICATIONS OR SERVICES, UNAVAILABILITY OR INOPERABILITY OF SERVICES, TECHNICAL MALFUNCTION, LOST DATA, OR LOST PROFITS, EVEN IF PROVIDER KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILTY OF OR COULD HAVE REASONABLY PREVENTED SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Excusable Delays. Any delay in performance of any provision of this Agreement caused by conditions beyond the reasonable control of either party will not constitute a breach of this Agreement, provided that the delaying party has taken reasonable measures to notify the affected party of the delay in writing and uses reasonable efforts to perform in accordance with this Agreement notwithstanding such conditions. The delayed party’s time for performance will be deemed extended for a period equal to the duration of the conditions beyond its control. Conditions beyond a party’s reasonable control include, but are not limited to, natural disasters, acts of government, acts of terrorism, power failures, major network failures, fires, riots, and acts of war (collectively, “Excusable Delays”).
Compliance with Laws and Policies. The parties hereby agree to abide by and comply with all applicable local, state, national, and international laws and regulations (including applicable laws that pertain to the transmission of technical data, privacy, the encryption of software, the export of technology, the transmission of obscenity, or the permissible uses of intellectual property).
Controlling Law. The parties agree the laws of the State of California, excluding conflict of laws provisions, will govern this Agreement and all matters arising out of or related to this Agreement. The parties submit to the jurisdiction of the courts of the State of California. The parties expressly agree to venue in the state and federal courts located in San Mateo, California and waive any objection based on personal jurisdiction.
Entire Agreement and Severability. This Agreement, including the Subscription Plan and Support Plan, as amended from time to time according to its terms, shall constitute the entire agreement between Customer and the Provider respecting the Site, the Web Services, the Support, the Data, and the Third Party Data described herein, and shall supersede all prior agreements, arrangements, representations or promises, whether oral or written, as to its subject matter. This Agreement may be amended only in a written agreement that is duly executed by authorized representatives of the parties.
Force Majeure. The Provider and their respective affiliates shall not be deemed to be in default of any provision hereof or be liable for any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, civil or military authority, civil disturbance, war, terrorism, strikes, fires, other catastrophes, power or telecommunications failure or any other cause beyond its reasonable control.
Waiver. No waiver by either party of any default by the other in the performance of any provisions of this Agreement shall operate as a waiver of any continuing or future default, whether of a like or different character.
Assignment. Neither party may assign this Agreement without prior written consent unless in connection with a merger or acquisition of either party.
Severability. If any provision of this Agreement (or any portion thereof) shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder of this Agreement shall not in any way be affected or impaired thereby.
Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.
Notice. The parties may give notice to each other via email, fax or certified mail. Notices sent to Provider should be directed to email@example.com. Notices sent to Customer will be sent to Customer at the email address provided during registration to use the Web Services.