End-User License Agreement
This End-User License Agreement (“EULA”) is a legal agreement between you (“you”) and Exoton Inc. (“Exoton”). By clicking on the “Agree” button or installing, using or benefiting from the Exoton software (“Software”), you are agreeing to be bound by the terms and conditions of this EULA. If you do not agree to the terms and conditions of this EULA, you may not access or otherwise use or benefit from the Software in any manner and you must press the “Cancel” button to decline the download. The terms and conditions of this EULA also apply to any updates, supplements, Internet-based services, and support services for this Software, unless other terms accompany those items. If so, those terms apply.
1. Grant of Limited License; Conditions.
Any license (“License”) granted to you herein is conditioned on your compliance with the terms and conditions contained in this EULA. This License is non-exclusive and non-transferable.
The Exoton grants to you a personal, limited right to install and use the Software downloaded or contained on the CD-ROM, disk or other media. The License permits a single user to install and use the Software on multiple machines with the same operating system (Windows, OS X or Linux) or on a single mobile device.
2. Reservation of Rights and Ownership
The Exoton reserves all rights not expressly granted to you in this EULA. The Software is licensed, not sold. The Exoton, its affiliates, and their suppliers own and retain all right, title and interest in and to the Software, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein, and the Software is protected by copyright laws and other intellectual property laws and international treaty provisions. Among other things, copyright laws prohibit you from making derivative works of the Software. You may, however, make copies of the Software solely for your individual and personal use on multiple computers, provided that you include all copyright and proprietary rights notices on any copies. Notwithstanding the foregoing, you may not make copies for use on multiple machines if multiple users (including employees, agents, or contractors) will use those machines unless you purchase a corresponding number of seat licenses. Your possession, installation, or use of the Software does not transfer to you any title to the intellectual property in the Software, and you will not acquire any rights to the Software except as expressly set forth in this EULA. To the extent you provide any comments or suggestions to the Exoton, the Exoton shall have the right to retain and use any such comments or suggestions regarding the Software in current or future software, products or services, without further compensation to you or without your approval.
3. Other License Restrictions
(a) Other than as permitted by applicable legislation, you will not, an will not allow any other person to, modify the Software or any part thereof, to analyze it by means of reverse engineering, to decompile or disassemble the Software, or to make products derived from it. You may not circumvent the time-limited nature of the trial version of the Software or any of the terms of this EULA or any other provision of law.
(b) You may not claim that the Software, in whole or in part, is yours, and you may not use the name of Exoton (or any of their suppliers’) or any of their respective logos or trademarks in any manner without first obtaining the prior written permission from an authorized representative of Exoton.
(c) You must use the Software at all times in a manner that is consistent with any other software licenses granted to you by other companies that have provided software for your computer. For example, if the Software is designed to be used with the Mac OS X operating system, you may not use the Software in a manner inconsistent with the Mac OS X license agreement between you and Apple, Inc.
(d) You may not distribute copies of the Software, in whole or in part, to any third party, nor may you use, rent, make available, loan, sublicense, or lease, with or without consideration, the Software to third parties. You further may not use the Software to act as a service bureau or application service provider or use the Software for commercial software hosting services. In addition, you may not publish the Software for others to copy or use the Software in any way that is against the law.
4. Limited Refund and Warranty; Disclaimers and Limitation of Liability.
(a) THE SOFTWARE, ANY DOCUMENTATION, AND ANY SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES OF ANY KIND. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM THE EXTENT TO WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW, EXOTON, ITS AFFILIATES AND THEIR SUPPLIERS MAKE NO WARRANTY, CONDITION, REPRESENTATION, GUARANTEE, OR TERM (EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, NONINFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, SATISFACTORY QUALITY, WORKMANLIKE EFFORT, AVAILABILITY, SECURITY, INTEGRATION, CUSTOMER DATA, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. THE ENTIRE RISK ARISING OUT OF THE USE OR RESULTS OBTAINED FROM THE SOFTWARE, DOCUMENTATION AND/OR SERVICES REMAINS ENTIRELY WITH YOU. WITHOUT LIMITING THE FOREGOING PROVISIONS, EXOTON, ITS AFFILIATES AND THEIR SUPPLIERS MAKE NO WARRANTY, REPRESENTATION AND/OR GUARANTEE THAT THE SOFTWARE, DOCUMENTATION, AND/OR SERVICES WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR WILL MEET YOUR REQUIREMENTS. YOU (AND NOT EXOTON, ITS AFFILIATES OR THEIR SUPPLIERS) ASSUME THE ENTIRE RISK AND COST RELATED TO OR ARISING OUT OF THE SOFTWARE, DOCUMENTATION, AND/OR SERVICES.
(b) IN NO EVENT SHALL EXOTON, ITS AFFILIATES OR THEIR SUPPLIERS OR ANYONE ELSE INVOLVED IN THE CREATION, PRODUCTION, MARKETING, DISTRIBUTION, OR DELIVERY OF ANY PART OF THE SOFTWARE, DOCUMENTATION AND/OR SERVICES, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, FOR BUSINESS INTERRUPTION, FOR LOSS OF BUSINESS INFORMATION, OR FOR OTHER MONETARY LOSS, ARISING OUT OF THE USE OF OR THE PERFORMANCE OF THE SOFTWARE, DOCUMENTATION AND/OR SERVICES OR THE INABILITY TO USE THE SOFTWARE, DOCUMENTATION AND/OR SERVICES AND OTHER INFORMATION PROVIDED TO YOU BY EXOTON, OR IN THE PROVISION OF, OR FAILURE TO PROVIDE, SERVICES OR INFORMATION. This exclusion and limitation shall apply even if any remedy fails of its essential purpose.
Because some states of the United States and some countries do not allow the exclusion or limitation of the liability for consequential or incidental damages, the above disclaimer may not apply to you. Any warranties that by law survive the foregoing disclaimers shall terminate ninety (90) days from the date you downloaded or otherwise received the Software.
(c) NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE CUMULATIVE LIABILITY OF EXOTON, ITS AFFILIATES AND ANY OF THEIR SUPPLIERS, WHETHER IN CONTRACT (INCLUDING ANY PROVISION OF THIS LICENSE AGREEMENT), TORT, OR OTHERWISE, AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING, SHALL BE LIMITED TO THE GREATER OF DIRECT DAMAGES IN THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE AND/OR SERVICES OR U.S. $5.00. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF EXOTON, ITS AFFILIATES AND ANY OF THEIR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
By clicking “Agree” or using or accessing the Software, you also represent that you are responsible for and have paid Exoton any and all applicable license fees for the Software unless Exoton has made available a version of the Software on a trial or evaluation basis for no fees, in which case, no fees are required for such trial or evaluation Software.
6. Import/Export Control Laws
You agree to comply with all laws, rules and regulations applicable to the import/export of the software containing encryption. In that regard, you agree not to import or transmit or download, directly or indirectly, the Software into France. Diversion contrary to U.S. or other law is expressly prohibited. You agree to comply with all applicable import/export laws and regulations and the laws, regulations, and rules of any country or region which apply to any of your use of the Software, Documentation and Services. By downloading or using the Software, you are agreeing to the foregoing and you are representing and warranting that you shall comply with the foregoing.
7. Injunctive Relief
Because of the unique nature of the Software, you understand and agree that Exoton will suffer irreparable injury in the event you fail to comply with any of the terms and conditions of this EULA and that monetary damages may be inadequate to compensate Exoton for such breach. Accordingly, you agree that Exoton will, in addition to any other remedies available to it at law or in equity, be entitled to injunctive relief, without posting a bond, to enforce the terms and conditions of this EULA.
Without prejudice to any other rights, Exoton may immediately terminate this EULA if you breach any representation, warranty, agreement or obligation contained or referred to in this EULA. In such event, you must dispose of the Software and all copies or versions of the Software by destroying the Software. The provisions of Sections 3, 4, 5, 6, 7, 8 and 9 of this EULA shall survive termination or expiration of this EULA for any reason.
This EULA and any disputes related to this EULA or to the use of the Software or otherwise shall be governed by the laws of the province of Quebec, without giving effect to any principles that may provide for application of the law of another jurisdiction. The failure by Exoton to enforce any provision of this EULA shall in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision thereafter. All waivers by us must be in writing to be effective. This EULA, together with any addendum or amendment included with the Software, is the complete agreement between Exoton and you and supersedes all prior agreements, oral or written, with respect to the subject matter hereof. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. All communications and notices to be made or given pursuant to this Agreement shall be in the English language. This EULA is prepared in the English language. In the event of a conflict between the English language version and any translated version, the English language version shall govern the parties’ relationship. Any translation of this EULA into any other languages shall be for convenience of reference only.
This Services Agreement (“Agreement”) governs the provision by Exoton Inc. (“Exoton”) and the access and use by you, its customer (“you” or “Customer”) of Exoton’s data storage and sync services (“Services”). BY CLICKING ON “I ACCEPT” BELOW OR OTHERWISE, YOU ACKNOWLEDGE HAVING REVIEWED AND ACCEPTED THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS, YOU SHOULD NOT BEGIN USE OF YOUR ACCOUNT OR EXOTON’S SERVICES, AND YOU SHOULD IMMEDIATELY NOTIFY EXOTON.
The iTamer application (“Application”) that you download and install onto your computer allows you to create one or more databases. You can choose to publish a database (“Shared Data”) onto Exoton’s server and thereafter, share that database between all the computers and mobile devices that run your licenced copy of an Application. In rare instances you may not be able to gain access to your data during scheduled maintenance or other force majeure occurrences.
2. Data Protection and Encryption
Exoton understands the critical importance of security and privacy and has taken extraordinary measures to protect your Shared Data. Application’s data is always encrypted, even when it is not shared and used on a single computer only. Further, to ensure complete privacy and security, the password that is used for data encryption is NEVER stored or known by Exoton.
When you register for the Services you will provide your email as a personal login (“Username”) and choose your account’s password (“Password”). You can change your Username or Password at any time using Application. Your Username and Password are required to access your Shared Data and to update Application. Your Password is not used to encrypt your Shared Data, but to encrypt the communication between Application and Exoton’s server. Your Password is also NEVER stored or known by Exoton. In case you forget your Password, Exoton will be able to reset it.
3. Terms of Service
You agree that Exoton reserves the right in its sole discretion to establish general operating practices and procedures to maximize the operation and availability of the Services for the greatest benefit of its customers.
If, in using the Exoton service you are deemed to have violated the policies set forth in this Agreement, Exoton reserves the right to freeze your account immediately, and shall provide you with written notice via email of your violation so that you may respond to such determination within thirty (30) days. If no response is received by Exoton within thirty (30) days of sending you notice of the violation, Exoton reserves the right to cancel your membership. Upon deciding to cancel your membership pursuant to this Section, Exoton shall provide you with written notice via email of such cancellation and shall continue to store your Selected Data for a period of sixty (60) days from the date notice of cancellation is sent, after which time your Selected Data shall be purged from the system.
By registering for the Exoton Service, you acknowledge and agree that your Selected Data may not be available at certain intervals in order for Exoton to perform performance maintenance on its servers, or other reasons beyond the control of Exoton.
In order to access the Service, you must complete the registration process it the time you sign up for the Shared Data plan. Your email will bu used as your personal Username. You create and change your Password using an Application. In connection with your registration, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the registration form; and (b) maintain and promptly update such information to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, Exoton has the right to suspend or terminate your account and refuse any and all current and future use of the Services. In addition, Exoton reserves the right to deny registration to any customer it deems inappropriate to use the Services.
You are solely responsible for maintaining the strict confidentiality of your Username and Password and for any charges, costs, expenses, damages, liabilities and losses, you or Exoton may suffer as a result of your failure to do so. Furthermore, you are entirely responsible for any and all activities that occur under your Username and Password, and for ensuring that use of your account complies fully with this Agreement. You agree to immediately notify Exoton of any unauthorized use of your account or any other breach of security. You may not use anyone else’s account, at any time, without the permission of the account holder.
5. Payment and Renewal Notices
To the extent applicable, all payments are non-refundable. Payments are due upon account activation and future renewal dates. Services will not be activated until payment is received. Service for any renewal period will not be provided unless and until Exoton has received payment for such renewal period. Renewal payments shall be automatically charged to your credit card and your account shall automatically renew unless you provide Exoton with notice of termination pursuant to the terms set forth below. Notwithstanding the foregoing, should payment in full of any amount owed to Exoton under this Agreement not be received by Exoton within thirty (30) days after such payment has become due, such amounts will thereafter bear interest at the rate of 1.5% per month, or the maximum rate permitted by applicable law, whichever is less. If any payment due Exoton is collected at law or through an attorney at law or under advice therefrom or through a collection agency, you agree to pay all costs of collection, including, without limitation, all court costs and reasonable attorneys' fees.
6. Your Responsibilities
You may not use the Services in any manner that could damage, disable, disrupt, overburden, impair or otherwise interfere with the Services or any servers or networks that you may interact with through your use of the Services, or otherwise interferes with the use or enjoyment of the Services by others. You may not attempt to gain unauthorized access to the Services, other user accounts or any computer systems or networks that are connected to the Services through hacking, password mining or any other means. You may not intentionally compromise the security of your account by publicly disclosing you username and/or password. Exoton may pursue any legal and/or technical remedies to prevent the violation of this provision and to enforce this Agreement.
7. Term and Termination
The rights and obligations of the parties under these terms and conditions will commence on the date of your order and will continue until terminated pursuant to the terms of this Agreement. In order to terminate the Services, you must either email Exoton at email@example.com of your intention to terminate or open the ACCOUNT page on the Fastspring website and cancel your subscription to the Services through the termination mechanism. Upon receipt of your intention to terminate, Exoton shall suspend your account and keep your Selected Data for a period of thirty (30) days, after which point Exoton shall purge your Selected Data from its servers.
You agree to indemnify, defend and hold harmless Exoton, its affiliates and their respective directors, officers, employees and agents, licensors, representatives from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from your use of the Services or any violation of this Agreement by you, including but not limited to any breach or alleged breach of any of your representations, warranties or undertakings hereunder. Exoton reserves the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with Exoton in asserting any available defenses.
9. Warranties, Disclaimers and Limitations of Liability
Exoton represents and warrants to you that the services provided hereunder will be performed (i) in a manner consistent with industry standards reasonably applicable to the performance thereof; and (ii) at least at the same level of service as provided by Exoton generally to its other customers for the same services.
EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, THE SERVICES PROVIDED BY EXOTON PURSUANT TO THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES IS AT YOUR SOLE RISK. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, EXOTON AND ITS AFFILIATES AND SUPPLIERS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SYSTEM INTEGRATION AND NONINFRINGEMENT.
EXOTON CANNOT GUARANTEE UNINTERRUPTED SERVICE, SERVICE AT ANY PARTICULAR TIME, OR INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. EXOTON WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM CAUSED BY CIRCUMSTANCES OUTSIDE OF EXOTON’S CONTROL.
IN ADDITION, YOU UNDERSTAND THAT THE SERVICES ARE NOT DESIGNED OR INTENDED TO BE FAIL-SAFE, OR AUTHORIZED BY EXOTON FOR USE AS CRITICAL COMPONENTS IN LIFE-SUPPORT OR SAFETY DEVICES OR SYSTEMS, OR ANY OTHER APPLICATION THAT INVOKES THE POTENTIAL RISKS OF DEATH, PERSONAL INJURY OR SEVERE PROPERTY OR ENVIRONMENTAL DAMAGE (INDIVIDUALLY AND COLLECTIVELY, “CRITICAL APPLICATIONS”). ANY USE OF THE SERVICES WITH RESPECT TO SUCH CRITICAL APPLICATIONS IS FULLY AT YOUR OWN RISK, IN PARTICULAR, WITH RESPECT TO AUTOMOTIVE, AEROSPACE/DEFENSE, AVIONICS, CLASS III MEDICAL DEVICES OR PRODUCTS, SUBJECT TO APPLICABLE LAWS AND REGULATIONS GOVERNING LIMITATIONS ON PRODUCT LIABILITY.
EXOTON AND ITS AFFILIATES AND SUPPLIERS WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM OR IN CONNECTION WITH THE USE OF SERVICES, INCLUDING, BUT NOT LIMITED TO, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, GOODWILL, DATA OR USE), EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION SHALL APPLY REGARDLESS OF THE FORM OF ACTION AND WHETHER IN CONTRACT, BREACH OF WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, YOU MIGHT HAVE ADDITIONAL RIGHTS. IN ANY EVENT, EXOTON’S AGGREGATE LIABILITY SHALL NOT EXCEED FEES PAID IN THE THREE MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
10. Dispute Resolution
The Parties agree to make all reasonable efforts, in good faith, to resolve any dispute arising from implementation of this agreement through informal discussions and the development of mutually satisfactory options. Matters that cannot be resolved at the working level or that impact on multiple areas of interest will be referred to…
11. Applicable Laws, Exclusive Jurisdiction
Exoton provides the Services in Canada. Exoton makes no representation that the Services or any content on or accessed through the Services is appropriate or available for use in other jurisdictions. You are responsible for compliance with all local laws and regulations, as applicable. Use of the Services and any dispute arising therefrom shall be governed by the laws of the province of Quebec without regard to principles of conflict of laws. SUBJECT TO THE DISPUTE RESOLUTION PROCEDURES SET FORTH ABOVE, ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR ACCESS TO OR USE OF THE SERVICES SHALL BE INSTITUTED ONLY IN A PROVINCE COURT LOCATED IN MONTREAL, QUEBEC, AND YOU EXPRESSLY CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS.
Exoton reserves the right to modify the pricing and this Agreement at any time upon posting and providing notice, whether directly to you or posting a notice of a change to the homepage of the Exoton site. By continuing to use the Services after any changes are posted and notice is issued, you are signifying your acceptance of the revised terms and conditions. Please visit the Service Agreement page at https://www.exoton.com/en/legal.html regularly to review the then-current Service Agreement to which you are bound. Exoton reserves the right to modify the Services at any time.
13. Consent to Electronic Delivery of Notices
You consent to receive communications from Exoton electronically, including without limitation by email or by posting notices on the Exoton website. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. To withdraw your consent to receive notices electronically, you must notify us of your withdrawal of such consent and discontinue your use of the Services.
14. Force Majeure
Neither party shall be liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments due hereunder) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for a party to perform its obligations under this Agreement.
15. Government Regulations
You agree that you shall not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the Canada in connection with the Services or this Agreement without first complying with all export control laws and regulations which may be imposed by the Canadian government and any country or organization of nations within whose jurisdiction Customer operates or does business.
If there is a determination that any provision of this Agreement is invalid or unenforceable under applicable law, that determination will not affect the rest of this Agreement, and this Agreement shall be deemed amended to the minimum extent necessary to make them valid and enforceable. The failure of Exoton to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. Regardless of any statute or law to the contrary, any claim or cause of action against Exoton arising out of or related to use of the Services or under this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.