Terms of Service
You will order the Services via a services agreement (“Service Agreement”), which is an Xcyte Digital-approved form or online subscription process (which may include in-account ordering) by which you agree to subscribe to the Service. These Terms and any Service Agreement we enter into shall be referred to collectively herein as this “Agreement.” Supplemental terms and conditions or documents that may be posted on our website from time to time, are hereby expressly incorporated into this Agreement by reference.
Service Agreements may be entered into by Xcyte Digital Corporation, and by its wholly-owned subsidiaries. This Agreement will be deemed to be only between our entity that enters into the Service Agreement and Customer.
The Services are not intended for use by any person or entity in any jurisdiction or country where such use would be contrary to law or regulation or which would subject Xcyte Digital to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Services from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
All users who are minors in the jurisdiction in which they reside (generally under the age of 18) may not order the Services.
Subject to both the acceptance by Xcyte Digital of your Service Agreement, and the terms of your Service Agreement, Xcyte Digital hereby grants to you during the term of your Service Agreement the non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Services, solely to the extent required to produce, operate and present multi-media communications relating to your business operations. Unless you have entered into a separate agreement with Xcyte Digital, you are prohibited from reselling or acting as a service bureau for any of the Services. You shall not reverse engineer, modify, decompile, disassemble, translate or otherwise attempt to derive source code from any part of the Services or associated software. You shall not remove, alter or obscure in any way any proprietary rights (i.e., copyright) notices.
From time to time after the date of your Service Agreement, new releases of the Services may add, enhance or change the features and services available. You shall be entitled to use, if you choose, any such new features and services, but additional charges and terms may apply. Xcyte Digital reserves the right to withdraw, suspend or discontinue any functionality or feature of the Services at any time. Xcyte Digital reserves the right to change methods of access to the Services at any time for any reason, without notice.
You may purchase professional services (“Professional Services”) by placing a Service Agreement with us. Professional Services may consist of Services implementation and configuration, private branding, training and general consulting. If you order private branding for your Services, then you hereby grant Xcyte Digital a license as necessary to apply your branding to your Service. The specific Professional Services description ordered will be set forth on a Service Agreement. Fees for professional services are in addition to your fees for the Services. Unless we otherwise agree, all Professional Services will be performed remotely. If not performed remotely, then you will reimburse Xcyte Digital reasonable travel-related expenses incurred. If you purchase Professional Services that recur, they will be considered part of your Services subscription and will renew in accordance with your Services. All fees for Professional Services are non-refundable.
ORDERING AND PRICING
Ordering of Services. Initial services will be ordered via the Service Agreement. After your initial Service Agreement, you may order additional features via an additional Service Agreement or by activating the additional features from within your account (if this option is made available by us.). This Agreement will apply to all additional Service Agreements and all additional features that you activate from within your account. Unless otherwise indicated in a Service Agreement, additional services ordered during a term will renew on the same schedule as then-current services.
Service Agreement Term and Renewal. Service Agreements are non-cancellable prior to the end of the term stated in the Service Agreement (the “Term”). Service Agreements will automatically renew for subsequent terms of the same length as the original term unless cancelled prior to renewal, provided that if your initial Term was for more than one (1) year, then the renewal term will be for one (1) year. If renewal pricing is not included in your Service Agreement, then our standard pricing available on the date of renewal will apply. One-time service events may also apply, in which case, no subsequent term would apply.
Fees and Payment for Services. You will pay Xcyte Digital fees per the criteria set forth in the applicable Service Agreement. Fees include recurring fees paid in advance for Services ordered on a subscription basis (“Subscription Services”) and fees for Services that are charged in arrears calculated based upon usage. The Service Agreement will indicate the length of your Term (e.g., 12, 24 or 36 months) and the payment schedule. If you are ordering Professional Services, then the Service Agreement will state the price and payment schedule. Xcyte Digital reserves the right, in its sole discretion, to change or institute new or additional rates, charges and/or fees for access to or use of the Services or to change its payment terms or billing methods at any time. Xcyte Digital may suspend or terminate your Services if Xcyte Digital determines, in its sole discretion, that your previous payment record so warrants such suspension or termination. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement or on our website. If we offer from time to time the ability to terminate the Service early, then any offered refund shall not include a refund of fees paid for Professional Services, unless the offer expressly states otherwise. You may not cancel Services until the end of the Term. We do not provide refunds if you decide to stop using the Service during your Term. Fees will be billed in U.S. dollars, unless expressly stated otherwise by Xcyte Digital or agreed upon by the parties in writing. If renewal pricing is not included in your Service Agreement, then our standard pricing available on the date of renewal will apply. If you are an Xcyte Digital partner that purchases on behalf of a client, you agree to be responsible for the Service Agreement and hereby guarantee payment of all fees. Prices may be increased at any time. However, for Subscription Services, you will receive notice of any price increases at least 30 days prior to the end of the Term.
Named Users. Your fees may be linked to Named Users. For the purposes hereof, a “Named User” is an individual designated and identified by you as an organizer/administrator who is authorized to use the Services. A Named User designation is for specific employees and may not be utilized by more than a single employee. Named User designations may be transferred to another employee if the original Named User is no longer functioning as an organizer/administrator. For so long as Xcyte Digital supports such selections, you may increase your number of Named Users, at any time, by submitting your selections on your account page or by requesting such change via an Xcyte Digital agent.
Upgrades. Where permitted by Xcyte Digital, at its sole discretion and subject to you meeting all pre-conditions identified or communicated to you for the upgrade offer to you, you may upgrade Services. You are and shall remain responsible for all fees and charges due and incurred for Services provided under an existing ordered plan through the upgrade effective date and you are not and will not be entitled to any partial months’ credits or refunds of any kind as a result of the upgrade. After any upgrade effective date, you shall be responsible for the increased fees and charges associated with the upgrade, including without limitation any new and/or additional charges associated therewith, which may include without limitation, for any overages. For the avoidance of doubt, nothing herein shall be deemed to require Xcyte Digital to permit and/or allow any upgrades. You may not downgrade your ordered Services during the Term and in order to avoid additional charges, you should purchase the appropriate tier of Service for your anticipated needs.
Credit Cards. All fees shall be paid by you by credit or debit card, and you agree if payment is not received by Xcyte Digital from the card issuer or its agents, you will pay all amounts due upon demand by Xcyte Digital. Each time you use the Services, or allow or cause the Services to be used, you agree and reaffirm that Xcyte Digital is authorized to charge your designated card in connection with the Services and Professional Services. YOU FURTHER AGREE THAT XCYTE DIGITAL MAY SUBMIT CHARGES FOR USE OF THE SERVICES EACH MONTH, QUARTER OR YEAR, AS APPLICABLE, IN ACCORDANCE WITH THIS AGREEMENT, YOUR SERVICE AGREEMENT OR AS SET FORTH ON XCYTE DIGITAL’S WEBSITE, WITHOUT FURTHER AUTHORIZATION FROM YOU FOR EACH CHARGE, until you provide prior written notice (in accordance with Xcyte Digital’s verification procedures, as may be established by Xcyte Digital from time to time in its sole discretion) that you terminate this authorization or desire to change your designated card. Such notices will not affect charges submitted before Xcyte Digital reasonably could act on such notice. When you provide your card information to Xcyte Digital (or its designated licensees or subcontractors), you represent and warrant to Xcyte Digital that you are the authorized user of your designated card. You agree to promptly notify Xcyte Digital of any changes to your designated card account number, its expiration date or your billing address, as applicable, and you agree to notify Xcyte Digital if such designated card expires or is cancelled for any reason. For the avoidance of doubt, the designated card account holder is responsible for all charges incurred, including applicable taxes, and all purchases made by such account holder or anyone that uses the card. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
Late Payments and Disputes. Past-due balances not reasonably disputed in good faith as herein provided shall be subject to an interest charge of 5% plus a charge thereafter of 11/2% per month computed from the due date of each invoice previously issued, or the maximum rate legally permitted, whichever is less, and you shall pay any collection costs, including reasonable attorneys’ fees, and other expenses incurred by Xcyte Digital to collect any such sums due under this Agreement. You must promptly notify Xcyte Digital of any charge disputed in good faith, with supporting documentation, or you will be deemed to agree to such charges and no adjustments to charges or invoices will be made. You remain responsible to pay charges not reasonably disputed in good faith as herein provided by the due date. WITHOUT LIMITING ANY OTHER REMEDY HEREIN, IF FEES ARE NOT PAID IN A TIMELY MANNER, OR IF XCYTE DIGITAL IS UNABLE TO PROCESS YOUR TRANSACTION(S) USING THE DESIGNATED CARD INFORMATION PROVIDED, XCYTE DIGITAL RESERVES THE RIGHT TO SUSPEND AND/OR TERMINATE THE SERVICES OR PROFESSIONAL SERVICES.
MERCHANDISE AND SERVICES SALES
The Service includes features that facilitate sales by you of products and services. Transactions will be conducted via a third-party payment gateway (“Gateway”) and you will be required to enter into applicable agreements with the Gateway. Such agreements shall be solely between you and the Gateway. Xcyte Digital is not a party to such agreements. Other than providing necessary linkage with the Gateway platform, Xcyte Digital plays no role in any sale transactions. You are solely responsible for all sales and terms of sales you transact through the Gateway, including, without limitation, the collection of required sales taxes. You agree to indemnify and hold Xcyte Digital harmless from and against any claims by purchasers of your products or services conducted via the Gateway. The Gateways that we work with represent that they are compliant with the Payment Card Industry Data Security Standard (PCI DSS).
With respect to any beta version of any of the Services (the “Beta Services”) made available to you for purposes of evaluation and feedback, you acknowledge that the Beta Services may contain bugs, errors and other problems and are provided to you “as-is.” To the extent permitted by law, Xcyte Digital disclaims any warranty or liability obligations to you of any kind with respect to the Beta Services. You further acknowledge the importance of communication between Xcyte Digital and you during your use of the Beta Services and hereby agree to receive related correspondence and updates from Xcyte Digital and its suppliers through email or regular mail. In the event you request to opt-out from such communications, your use of the Beta Services may be canceled. You also hereby acknowledge that Xcyte Digital has not made any representations, promises or guarantees that the Beta Services will ever be announced or made available to anyone in the future and that Xcyte Digital has no express or implied obligation to you to announce or introduce the Beta Services. With respect to the Beta Services, this subsection shall supersede any other terms and conditions contained herein, but only to the extent necessary to resolve conflict. In addition to and without limiting any other rights or remedies Xcyte Digital has, if Xcyte Digital determines, in its sole discretion, that you have violated any conditions of and/or limitations on the Beta Services, Xcyte Digital reserves the right to immediately terminate the Beta Services.
To use the Services, you must complete the sign-up/registration process, which includes, without limitation, providing a valid email address, agreeing to be bound by this Agreement. You agree to maintain and update your registration information as required to keep it current, complete and accurate. If Xcyte Digital discovers that any of your registration information is inaccurate, incomplete or not current, Xcyte Digital may suspend and/or terminate your right to access and receive the Services. Xcyte Digital further retains the right to reject a registration application in its sole discretion and without a requirement to provide a reason. Without limiting the foregoing, Xcyte Digital may refuse to provide the Services to any individual or entity who has cancelled any number of previous accounts.
Phone, email and portal support is included at no additional cost above the fees for the Services, however certain fees may apply for dedicated support, which would be covered in the Services Agreement.
Certain Services provide functionality that allows you to record audio and data shared during sessions. You are solely responsible for complying with all federal, state, and local laws in the relevant jurisdiction when using recording functionality. Xcyte Digital expressly disclaims all liability with respect to your recording of audio and/or shared data while using the Services, and you release and agree to hold Xcyte Digital harmless from and against any damages or liabilities related to the recording of any audio and/or data.
Services. The Services and all associated intellectual and proprietary rights are the sole property of Xcyte Digital and/or its suppliers.
Xcyte Digital Marks. Except as required for use of the Services, you have no right or license to use any of the trademarks or trade names owned by, licensed to or associated with Xcyte Digital and its suppliers (the “Xcyte Digital Marks”) during the term of this Agreement without express written consent from Xcyte Digital. Despite prior approval, you will immediately cease and desist using the Xcyte Digital Marks upon notice from Xcyte Digital or upon termination of this Agreement for any reason. Any use by you of the Xcyte Digital Marks other than as described above will constitute a breach of this Agreement for which, in addition to any other remedies available at law or in equity, Xcyte Digital may terminate this Agreement.
Feedback. Xcyte Digital welcomes feedback regarding the Services, including its websites. Any ideas, suggestions, comments and/or other feedback you provide to Xcyte Digital (“Feedback”) shall be deemed to be non-confidential and Xcyte Digital shall be free to use such information on an unrestricted basis. You should only provide specific Feedback on the existing Services and should not include any ideas that Xcyte Digital’s policy will not permit it to accept or consider. Xcyte Digital or any of its employees do not accept or consider unsolicited ideas of any kind, including ideas for new or improved services, products or technologies, enhancements or new service names. The following terms shall apply to submissions of all Feedback: You agree that: (i) all submissions and their contents will automatically become the property of Xcyte Digital, without any compensation; (ii) Xcyte Digital may freely and irrevocably use, disclose, reproduce, license, sublicense, distribute or redistribute and otherwise commercialize the submissions and their contents for any purpose and in any way throughout the world, without royalty; (iii) there is no obligation for Xcyte Digital to review the submission; and (iv) there is no obligation to keep any submissions confidential. For the avoidance of doubt, you will not submit any Feedback to Xcyte Digital that (i) you have reason to believe is subject to any patent, copyright, or other intellectual property claim or right of any third party; or (ii) that is subject to license terms that seek to require any Xcyte Digital product incorporating or derived from any Feedback, or other Xcyte Digital intellectual property, to be licensed to or otherwise shared with any third party.
Customer Materials and Customer Data. “Customer Materials” means all materials that you provide or post, upload, input or submit for public display through the Service and “Customer Data” means all information that you submit or collect via the Service. As between the parties, you own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Service and Professional Services to you and as permitted by this Agreement.
Third-Party Content. You acknowledge and agree that all third-party information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which you may have access to as part of, or through the use of the Services are the sole responsibility of the individual or entity from which such content originated (“Third-Party Content”). Such Third-Party Content may be protected by intellectual property rights that are owned by the sponsors or advertisers who provides such Third-Party Content to Xcyte Digital (or by other individuals or entities on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Third-Party Content (either in whole or in part). Xcyte Digital reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Third-Party Content from the Services. Xcyte Digital may also provide tools (but has no obligation) to filter out explicit content, and you understand that by using the Services, you may be exposed to Third-Party Content that you may find offensive, indecent or objectionable. You use the Services at your own risk. You understand that by using the Services with a webcam or other photographic or video device and/or a microphone, you will transmit images and audio to users. You hereby release, discharge and agree to hold harmless Xcyte Digital, its officers, directors, employees, affiliates and its suppliers from and against any and all claims and demands, including but not limited to, any claims for copyright infringement, defamation, invasion of privacy or right of publicity, arising out of or in connection with any use of the images and/or audio.
Linked Sites. The Services may include links to other websites (“Linked Sites”). You acknowledge and agree that such links are provided for convenience only and do not reflect any endorsement by Xcyte Digital with respect to the providers of the Linked Sites or the quality, reliability or any other characteristic or feature of the Linked Sites. Xcyte Digital is not responsible in any manner (including without limitation with respect to any loss, damage or injury you may suffer) for any matter associated with the Linked Sites, including without limitation, the content provided on or through the Linked Sites or your reliance thereon. XCYTE DIGITAL MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY LINKED SITES: YOUR USE OF ANY LINKED SITE IS SUBJECT TO THE TERMS AND CONDITIONS APPLICABLE TO THE LINKED SITE AND SOLELY AT YOUR OWN RISK AND EXPENSE.
Service Agreement Termination. This Agreement will terminate upon the expiration or termination of all outstanding Service Agreements or earlier as herein provided.
Termination for Cause. Either party may terminate this Agreement at any time in the event that the other party breaches any provision of this Agreement in any material respect and fails to cure such breach within thirty (30) days after receipt of written notice of such breach. Notwithstanding the foregoing, Xcyte Digital may terminate this Agreement and/or suspend the provision of Services immediately: (i) for illegal, fraudulent, improper or abusive use of the Services; (ii) if deemed reasonably necessary by Xcyte Digital to prevent interruption or disruption to Xcyte Digital’s network, its business or other customers; (iii) if any portion of an invoice not timely and reasonably disputed in good faith as herein provided remains unpaid when due (including without limitation any minimum commitments); or (iv) for breach that is not curable. All terminations by Xcyte Digital shall be effective as of the date designated in the termination notice, and Xcyte Digital shall not be liable to you or any third party should Xcyte Digital exercise its right to discontinue Services, in whole or in part, or terminate this Agreement pursuant to this Section.
Suspension for Prohibited Acts. We may suspend any access to any or all Services without notice for: (i) use of the Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, and (ii) use of the Services that results in excessive hard bounces, SPAM complaints via feedback loops, direct spam complaints (to our abuse desk), or requests for removal from a mailing list by recipients. Additionally, we will suspend access to the Service for repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity. We may remove from the Services without notice any Customer Materials or Customer Data that we determine, in our discretion, violate any term of this Agreement, or that may pose a risk of loss or liability to us or harm to any person, provided that, we have no duty to prescreen, control, monitor or edit your Customer Data or Customer Materials.
Suspension for Present Harm. If your use of the Service: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Service or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may suspend all or any access to the Service. We will try to limit the suspension to the affected portion of the Service and promptly resolve the issues causing the suspension of the Service. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
Termination for Convenience. Xcyte Digital has the right, at all times and in addition to all other termination rights permitted by this Agreement, to terminate the Services and/or this Agreement, and any Service Agreement, for its convenience and without liability by providing notice to you, with such terminations effective as of the date designated in the applicable termination notice. If the termination is made for any reason other than convenience on the part of Xcyte Digital, you shall remain responsible to Xcyte Digital for an early termination penalty equal to the fee due for the remainder of the original Term.
Effect of Termination. In the event of any termination, you remain responsible for any and all fees and charges due and incurred through the termination effective date and will not be entitled to any partial month credits or refunds of any kind, including without limitation if you elect to not use the Services prior to the termination effective date. To the extent your agreement has a minimum monthly commitment, you will be liable for the months remaining under this commitment multiplied by the amount of the monthly commitment.
RETRIEVAL OF CUSTOMER MATERIALS AND CUSTOMER DATA
You are solely responsible to retrieve all Customer Data, Customer Materials and other content from your Services account prior to termination of this Agreement. After termination, we will have no obligation to maintain or provide you the Customer Data, Customer Materials or other content, and may, unless legally prohibited, delete all such content in our systems or otherwise in our control.
PROPRIETARY INFORMATION AND NON-DISCLOSURE
Each party acknowledges that, in the course of performing its duties under this Agreement, it may obtain information relating to the business, the Services, the Customer Data, the Customer Materials, and to the other party that is of a confidential and proprietary nature (“Proprietary Information”). Non-public components of the Service are the Proprietary Information of Xcyte Digital and the Customer Data and Customer Materials is the Proprietary Information of Customer. Such Proprietary Information may include, but is not limited to, trade secrets, know-how, inventions, techniques, processes, computer programs, schematics, data, customer lists, financial information and sales and marketing plans. Without limiting the foregoing, the pricing provided to Customer shall be considered Proprietary Information of Xcyte Digital. Each party and its employees and agents shall at all times, during the term of this Agreement and thereafter, keep in trust and confidence all Proprietary Information and shall not use such Proprietary Information other than in the course of their duties under this Agreement, nor shall either party or its employees and agents disclose any of such Proprietary Information to any individual or entity without the other party’s prior written consent. Each party acknowledges that any such Proprietary Information received by the other party shall be received as a fiduciary of the other party. Each party further agrees to immediately return to the other party or destroy all Proprietary Information in its possession, custody or control in whatever form held upon termination of this Agreement or at any time, or from time to time, upon the request of the other party. We may monitor use of the Service by all of our customers and use the data gathered in an aggregate and anonymous manner and transfer such data to third parties. You agree that we may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify you.
You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Service by you, (b) your noncompliance with or breach of this Agreement, (c) your use of third-party products, (d) sales by you of products or services or the provision of any service or content by you through the Services, or (e) the unauthorized use of the Service by any other person using your user information. We will: notify you in writing promptly after our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
ALL SERVICES AND PROFESSIONAL SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND XCYTE DIGITAL SHALL NOT HAVE ANY LIABILITY TO ANY PARTY, INCLUDING BUT NOT LIMITED TO YOU, FOR ANY LOSS, DELAY, INTERRUPTION, OR INACCURACY RELATING TO THE PERFORMANCE OF SUCH SERVICES. XCYTE DIGITAL DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR COVENANTS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT REGARDING THE SERVICES AND PROFESSIONAL SERVICES. WITHOUT LIMITING THE FOREGOING, XCYTE DIGITAL MAKES NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES AND PROFESSIONAL SERVICES, AND ANY MATERIAL, AND/OR DATA DOWNLOADED, UPLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES AND PROFESSIONAL SERVICES IS AT YOUR OWN DISCRETION AND RISK. XCYTE DIGITAL ALSO DOES NOT MAKE ANY WARRANTY OR GUARANTEE FOR ANY PRODUCTS OR SERVICES PROVIDED BY VENDORS SUGGESTED BY XCYTE DIGITAL. NEITHER XCYTE DIGITAL NOR XCYTE DIGITAL’S SUPPLIERS SHALL IN ANY EVENT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT OR OTHER MONETARY LOSS; LOSS OR INTERRUPTION OF DATA, RECORDINGS, COMPUTER TIME OR VOICE OR VIDEO TRANSMISSIONS; ALTERATION OR ERRONEOUS TRANSMISSION OF DATA; ACCURACY OF DATA; INABILITY TO USE THE SERVICES TO CONTACT EMERGENCY SERVICES; UNAUTHORIZED ACCESS TO OR USE OF VOICE, VIDEO OR DATA PROCESSED OR TRANSMITTED BY, TO OR THROUGH THE SERVICE; OR PROGRAM ERRORS) EVEN IF XCYTE DIGITAL IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. XCYTE DIGITAL SHALL NOT BE LIABLE FOR ANY FAILURE TO PERFORM, OR DELAY IN PERFORMANCE OF, ITS OBLIGATIONS UNDER THIS AGREEMENT CAUSED BY REASONS BEYOND XCYTE DIGITAL’S REASONABLE CONTROL. IN NO EVENT SHALL XCYTE DIGITAL’S TOTAL LIABILITY TO YOU ARISING UNDER THIS AGREEMENT, WHETHER SUCH THEORY OF LIABILITY IS BASED ON CONTRACT, TORT OR OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE CHARGES (CALCULATED ON A PRO-RATED BASIS FOR ADVANCED PAYMENTS OF ALL CHARGES) BY XCYTE DIGITAL TO YOU FOR THE PARTICULAR SERVICE PERFORMED BY XCYTE DIGITAL DURING THE ONE MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF EVENT, ACT OR OMISSION GIVING RISE TO THE LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT XCYTE DIGITAL SHALL HAVE NO LIABILITY FOR THE DELETION OR FAILURE TO STORE ANY INFORMATION, CONTENT OR DATA TRANSMITTED USING THE SERVICES.
THE SERVICES MAY INTEGRATE PRODUCTS AND SERVICES FROM THIRD PARTY PROVIDERS (“THIRD PARTY OFFERINGS”). THIRD PARTY OFFERINGS ARE PROVIDED BY XCYTE DIGITAL “AS IS” AND WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. XCYTE DIGITAL SHALL HAVE NO LIABILITY TO YOU WHATSOEVER ARISING FROM THE PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY OFFERING.
YOU MAY USE YOUR OWN DOMAINS IN CONJUNCTION WITH THE SERVICES. THE CUSTOMER HEREBY RELEASES XCYTE DIGITAL OF ANY LIABILITY ASSOCIATED WITH THE CUSTOMER USING ITS OWN DOMAIN AND REDIRECTING THAT DOMAIN TO XCYTE DIGITAL’S URL. UNDER NO CIRCUMSTANCES WILL XCYTE DIGITAL BE RESPONSIBLE FOR ANY TECHNICAL ISSUES, PURCHASE OF SSL CERTIFICATE, RENEWAL OF SSL CERTIFICATE, DOMAIN REGISTRY, ADMINISTRATIVE ERRORS CAUSED BY CUSTOMER’S EMPLOYEES, AND/OR ANY OTHER ACTS OR OMISSIONS NOT MENTIONED HEREIN. THE CUSTOMER HEREBY AGREES THAT IT IS TAKING FULL RESPONSIBILITY FOR NOT ONLY THE MANAGEMENT OF ITS URL, BUT THE MANAGEMENT OF THE URL RE-DIRECTION TO XCYTE DIGITAL MEDIA. ALL PROCEDURES FOR DIRECTING THE SERVICES TO YOUR DESIGNATED DOMAIN ARE SOLELY YOUR RESPONSIBILITY, INCLUDING PROPER DOMAIN NAME SYSTEM (DNS) SETUP AND MAINTENANCE.
In the event some or all of the foregoing limitations in this Section may not be effective in the applicable jurisdiction or to the extent the applicable law mandates a more extensive warranty, the applicable law will prevail over these terms.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
We maintain certain Customer Data and Customer Materials that you transfer to the Services for the purpose of the performance of the Services. Although we perform regular routine backups of such data and materials, you are primarily responsible for all data and materials that you have transferred or that relates to any activity you have undertaken using the Services. You agree that Xcyte Digital shall have no liability to you for any loss or corruption of any such data or materials, and you hereby waive any right of action against Xcyte Digital arising from any such loss or corruption of such data or materials.
Notices to you for billing or account management purposes will be addressed to the address provided to Xcyte Digital during registration or as thereafter modified. Notifications to Xcyte Digital shall be addressed to: Xcyte Digital Corporation, 1451 West Cypress Creek Road Suite 204, Fort Lauderdale, Florida 33309 United States. Any notice required or permitted to be given under this Agreement must be written in English and shall be deemed given and effective upon delivery if sent by personal delivery or by email or facsimile transmission (with confirmation of successful delivery), two (2) days after deposit with a nationally-recognized overnight delivery service or five (5) days after posting if sent by certified United States mail, return receipt requested, with postage pre-paid and addressed as above-provided or to such other addresses as may be designated by notice from one party to the other. You hereby grant Xcyte Digital express consent to contact all individual account holders and moderators to communicate information regarding Xcyte Digital’s services and products, including without limitation, upgrades, enhancements, end-of-life, modifications and/or other feature changes. Without limiting the foregoing, you grant Xcyte Digital express consent to periodically contact you and/or to forward to the e-mail address(es) related to your account on file information regarding Xcyte Digital’s services and products, including without limitation, upgrades, enhancements, end-of-life, modifications and/or other feature changes and/or various promotional and advertising materials regarding other Xcyte Digital’s products, services, marketing plan and other business related items.
You grant us the right to add your name and company logo to our customer list, website and marketing materials. If Xcyte Digital elects to issue a press release pertaining to this Agreement, Xcyte Digital and you agree to cooperate in a joint press release, subject to both parties’ prior review and approval, announcing the execution of this Agreement.
Captions/headings are for convenience only and not to be used in construing this Agreement. If any provision herein is held by a court to be illegal, invalid or unenforceable, the remaining terms shall not be affected or impaired thereby, and the illegal, invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the allocation of risk. Any failure by a party to comply with this Agreement may be waived by the other party, but any such waiver must be in writing signed by the waiving party and will not be deemed a waiver of any subsequent failures or of any other obligations, agreements or conditions contained herein. The parties’ relationship to each other shall be that of independent contractors. Neither party shall or shall be deemed to be an agent, employee, partner of, or joint venturer with the other party. Each party enters into this Agreement solely for its own benefit and purpose, and except for Xcyte Digital’s suppliers, this Agreement in no way confers any rights upon, or imposes obligations on either of the parties toward, any third party, including but not limited to any recipient of content transmitted through the Services. This Agreement shall be binding upon and inure to the benefit of the parties’ successors, legal representatives and authorized assigns. Xcyte Digital may assign its rights and obligations under this Agreement to an entity that either now or in the future controls, is controlled by or is under common control with Xcyte Digital or as a consequence of merger, acquisition, change of control or asset sale. You may not assign your rights and obligations under this Agreement without Xcyte Digital’s express written consent. Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes, including, without limitation, Sections entitled “Proprietary Information and Non-Disclosure,” “Indemnification,” and “Warranty Disclaimer and Limitation of Liability.” This Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of Delaware applicable to agreements made and to be performed therein, without regard to any conflicts or choice of law rules. The parties agree to submit to the exclusive jurisdiction of applicable federal or state courts located in Delaware to resolve any disputes arising hereunder. The English language version of this Agreement controls. Agreements provided in languages other than English are provided for ease of reference only. If you are in Canada, it is the express wish of both parties that this Agreement, and any associated documentation, be written and signed in English. The provisions of the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
This Agreement, including all Service Agreements, constitutes the final, complete and entire agreement between the parties with respect to the subject matter hereof, and supersedes any previous proposals, negotiations, agreements or arrangements, whether verbal or written made between the parties with respect to such subject matter. There are no other verbal agreements, representations, warranties, undertakings or other agreements between the parties. If you require use of a non-Xcyte Digital-form purchase order in connection with the Services or Professional Services to be performed hereunder, you hereby acknowledge and agree that to the extent such purchase order contains any pre-printed or other terms and conditions, such terms and conditions, whether in addition to or in conflict with this Agreement, shall have no effect whatsoever and this Agreement shall govern the relationship between Xcyte Digital and you. Without limiting any other rights in this Agreement, Xcyte Digital may amend at any time the provisions of this Agreement by, at Xcyte Digital’s election: (i) posting revised terms and conditions (“Amended Terms”) on www.Xcyte Digitalmedia.com (the “Xcyte Digital Website”); (ii) delivering the Amended Terms to you at the address, fax or e-mail address included in your account registration (such delivery may be included in invoices for the services delivered to you); or (iii) by other reasonable means as permitted by applicable laws. All Amended Terms shall automatically be effective the earlier of: (i) the date indicated on the Xcyte Digital Website or (ii) your next billing cycle following posting or delivery to you. YOU AGREE TO BE SOLELY RESPONSIBLE FOR REGULARLY REVIEWING THE XCYTE DIGITAL WEBSITE TO OBTAIN TIMELY NOTICE OF ANY SUCH AMENDED TERMS AND XCYTE DIGITAL’S THEN-CURRENT TERMS AND CONDITIONS. BY USING THE SERVICES AFTER POSTING OR DELIVERY OF AMENDED TERMS, YOU WILL BE DEEMED TO HAVE ACCEPTED AND BE BOUND BY SUCH AMENDED TERMS. No such amendment by Xcyte Digital shall serve to constitute a default or termination by Xcyte Digital of this Agreement, nor shall such amendment serve to be a basis for your termination of this Agreement. Except as otherwise provided in this Agreement, this Agreement may only be amended or modified, in whole or in part, by a written instrument signed by the parties to this Agreement.
Your use of the Service includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO RELATING TO THE SERVICE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
Xcyte Digital Corporation
DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) NOTICE AND POLICY
If you believe that content available on or through our Website infringes one or more of your copyrights, please immediately notify our Copyright Agent by mail, email or faxed notice (“Notification”) providing the information described below, which Notification is pursuant to DMCA 17 U.S.C. § 512(c)(3). A copy of your Notification will be sent to the person who posted or stored the material addressed in the Notification. Please be advised that pursuant to federal law you may be held liable for damages if you make material misrepresentations in a Notification. Thus, if you are not sure that content located on or linked to by our Website infringes your copyright, you should consider first contacting an attorney. Our Website has a policy of terminating repeat infringers in appropriate circumstances.
All Notifications should include the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online website are covered by a single notification, a representative list of such works at that website.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material.
- Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notifications should be sent to our Copyright Agent as follows:
Xcyte Digital Corporation (“Company”)
1451 West Cypress Creek Road, Suite 204, Fort Lauderdale, FL 33309