TERMS OF SERVICE
These terms of service are entered into by and between you (“Client”) and Excl Networks, Inc., having a principal place of business located at 4466 Murphy Canyon Rd., Suite 100, San Diego, CA 92123 (the “Company”). The following terms and conditions, together with any documents they expressly incorporate by reference (“Terms of Services”), govern your access to and use of www.exclnetworks.com (the “Website”), including any content, functionality, and services offered on or through the Website.
- THE EXCL NETWORKS SERVICE. Client is engaging with the Company to perform services (the “Services”) as articulated on the proposal (“Proposal”) provided via email. Further, Client agrees to and acknowledges the following, as it pertains to the Services:
- End of Life Products Not Supported. Unless stated specifically in the Proposal, the Company does not provide support for end of life products including (but not limited to) Internet Explorer and Windows XP.
- Although the Company will reasonably endeavor to meet any timelines articulated in the Proposal, any such timelines are estimates and the Company shall not bear any liability for any failure to meet any such estimated timelines.
- Client Contact. Client shall designate an individual to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement, with such designation to remain in force unless and until another such contact is appointed. If any other individuals are necessary for the facilitation of the Services, then the Client shall provide the Company reasonable access to such individuals
- Client Responsibilities. Client is responsible and liable for all uses of the Services and any Deliverable resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Client is responsible for all acts and omissions of any party to whom it grants access (each an “Authorized User”), and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Client will be deemed a breach of this Agreement by Client. Client shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
- Legal Compliance. Client shall not use the Services or any Deliverable for any illegal purposes and shall abide by any and all regulations and/or laws that govern any activities occurring on or through such Services and/or Deliverable.
- No Access. The Company will not provide Client access to the Company’s back-end systems for any reason, in the interest of its security needs.
- All fees payable to the Company are due in accordance with that which is described in the Proposal.
- Overdue Amounts. Should Client fail to pay any amounts fourteen (14) days after they come due: (i) Client shall incur a late fee of twenty-five percent (25%) of the overdue amount or thirty-five dollars ($35) (whichever is greater); and (ii) the Company may cease any Services without notice to Client (including suspension pursuant to Section 5 below).
- Client shall reimburse the Company for any expenses reasonably necessary for the Services (e.g., domain name renewals, email send/receives, Twilio, or SMS requests).
- Downtime Credit. For every hour of downtime exceeding one (1) hour of downtime on any deliverable described in the Proposal (the “Deliverables”), the Company shall credit Client’s account with one day’s worth of hosting costs.
- No Refunds. The Company shall not give refunds on any fees paid in consideration of work that has been completed.
- Support Services. The Company shall provide support for any Deliverable at a billable rate of fifty dollars ($50) per hour. All such fees shall be billed in accordance with the Client’s billing schedule or on a monthly basis, whichever is more frequent.
- Additional Development. The Company shall provide additional development outside the scope of the Proposal at a billable rate of one hundred and fifty dollars ($150) per hour. All such fees shall be billed in accordance with the Client’s billing schedule or on a monthly basis, whichever is more frequent
- GRANT OF RIGHTS. The following shall apply to any Deliverable:
- Grant of Rights. Subject to and conditioned on Client’s payment of fees and compliance with the terms and conditions of these Terms and Conditions, the Company hereby grants Client a non-exclusive, non-transferable right to utilize any of the deliverables detailed in the Proposal in accordance with the terms and conditions herein.
- Reservation of Rights. The Company reserves all rights not expressly granted to Client in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any intellectual property rights or other right, title, or interest in or to the Services, any Deliverable, and any and all intellectual property pertaining to the Services or any Deliverable provided to Client.
- Use Restrictions. Client shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Client shall not at any time, directly or indirectly, and shall not permit any party to: (i) create derivative works of the Services or any Deliverable, in whole or in part; (ii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services or any Deliverable, in whole or in part; (iii) remove any proprietary notices from the Services or any Deliverable; or (iv) use the Services or any Deliverable in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
- Notwithstanding anything to the contrary in this Agreement, Company may temporarily suspend Client’s and any Authorized User’s access to any portion or all of the Services if: (i) Company reasonably determines that (A) there is a threat or attack on the Company; (B) Client’s use of the Service or any Deliverable disrupts or poses a security risk to the Company or to any other customer or vendor of Company; (C) Clientis using the Service or any Deliverable for fraudulent or illegal activities; (D) subject to applicable law, Client has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Company’s provision of the Services to Client is prohibited by applicable law; (ii) any vendor of Company has suspended or terminated Company’s access to or use of any third-party services or products required to enable Client to access the Services or any Deliverable; or (iii) any non-payment by Client (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Company shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Company will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client or any Authorized User may incur as a result of a Service Suspension
- TERM AND TERMINATION. This Agreement shall continue until terminated by either Party.
- Termination by the Company. The Company may terminate this agreement with written notice in the event the Client materially breaches this Agreement, including failure to pay any amounts under this Agreement as they come due. The Client expressly acknowledges that the Company shall bear no liability for any consequence as a result of termination pursuant to the Client’s breach.
- Termination for Convenience. Either Party may terminate this Agreement with thirty (30) days’ written notice to the other Party. The Client shall send such written notice via email to [email protected]. The Company shall provide the Client a full backup of the Client’s data upon such termination.
- The Client may expedite its termination and backup for two hundred and fifty dollars ($250). Such termination and backup shall be provided within seventy-two (72) hours of the Client providing written notice to [email protected] and paying such fee.
- INTELLECTUAL PROPERTY COVENANTS.
- Company IP. Client acknowledges that, as between Client and Company, Company owns all right, title, and interest, including all intellectual property rights, in and to the Company IP. For the purposes of this Agreement, “Company IP” refers to the Services, the Deliverables, and any and all intellectual property provided to Client in connection with the foregoing, including (but not limited to) any code in any format related to any of the Deliverables. For the avoidance of doubt, Company IP includes data and information related to Client’s use of the Services that is used by Company in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services and any information, data, or other content derived from Company’s monitoring of Client’s access to or use of the Services.
- Already-Existing IP. The Services may include or use the Client’s intellectual property (inclusive of intellectual property owned by a third party for which the Client has the right to utilize for the purpose of the Services) or the intellectual property of a third-party for which the Company has the unlimited right to utilize in the manner it is used in the Services. The Client hereby grants Company a perpetual, worldwide, royalty-free, non-exclusive, transferable, assignable, sublicenseable license to use any of the Client’s intellectual property to the extent that such property is needed to use or utilize the Services.
- Representation of Rights and Non-Infringement. The Client has or will obtain authorization necessary for the Company to incorporate any content provided to the Company for incorporation into the Services, and nothing contemplated by this Agreement will violate any rights of or agreement with third party claiming any rights to any such content.
- INDEMNIFICATION. The Client shall protect, defend, indemnify and hold the Company harmless from any claims, demands, suits, damages, losses, expenses, liabilities or causes of action arising or resulting directly or indirectly from or in connection with: (i) any breach of this Agreement (including any representations and warranties); (ii) Client’s use of the Services and/or any Deliverable; and (iii) any violation of any third party’s intellectual property rights occurring on any Deliverable.
- LIMITED LIABILITY. TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THE CLIENT’S USE, OR INABILITY TO USE, THE SERVICES, ANY DELIVERABLES, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. THIS SECTION DOES NOT APPLY TO ANY GROSS NEGLIGENCE OR MISCONDUCT BY THE COMPANY.
- DISCLAIMER OF WARRANTIES. The Client understands that the Company cannot and does not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. The Client is responsible for implementing sufficient procedures and checkpoints to satisfy Client’s particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to Company Website for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT CLIENT’S COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO CLIENT’S USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO CLIENT’S DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
CLIENT’S USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT CLIENT’S OWN RISK. THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET CLIENT’S NEEDS OR EXPECTATIONS. ANY TIMELINES STATED ON THE KINDESIGNS SUBMISSION PAGE ARE NOT GUARANTEES BUT ARE MERELY ESTIMATES.
TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
- ERRORS AND OMISSIONS. The Website and/or any Deliverable may contain technical inaccuracies and typographical errors, including but not limited to inaccuracies relating to pricing or availability applicable to certain products or services offered by the Company. The Company shall not assume responsibility or liability for any such inaccuracies, errors or omissions, and shall have no obligation to honor any order affected by such inaccuracies. The Company reserves the right to make changes, corrections, cancellations and/or improvements to any information contained on the Website, and to the products and programs described in such information, at any time without notice, including after confirmation of a transaction.
- PRODUCTS AND SERVICES. The Website and/or any Deliverable may contain information about products and services offered by the Company, not all of which are available in every location. Any reference to a Company product or service on the Website does not imply that such product or service is or will be available in the Client’s location. Furthermore, the Company may alter what aspects of the Services is available to Clients at any time in its sole discretion, including (but not limited to) removing certain Content from access at any time.
- NOTICE TO USERS IN CALIFORNIA. Under California Civil Code Section 1789.3, users of the Services from California are entitled to notice of the contact information for The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs: It may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
- FORCE MAJEURE. In the event that the Company is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of natural disaster, pandemic, terrorism, fire, explosion, power blackout, earthquake, flood, the elements, strike, embargo, labor disputes, acts of civil or military authority, war, acts of God, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, actions or decrees of governmental bodies or communication line failure not the fault of the Company, other causes beyond the Company’s reasonable control (a “Force Majeure Event”) or an economic crisis resulting from any Force Majeure Event the Company shall within a reasonable time give notice to the Client and shall take reasonable steps to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended until they can resume, or terminated at the election of the Company, should such circumstances continue for one (1) month from the date of notice.
- VENUE; ARBITRATION. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER. Any controversy or claim arising out of or relating to this Agreement or the breach thereof shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The number of arbitrators shall be one (1). The place of arbitration shall be San Diego, California. California State law shall apply. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
- If any provision of this Agreement is held to be invalid, illegal, or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein.
- This Agreement constitutes the entire understanding and agreement of the Client and the Company with respect to the Website hosting Services, and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Website.