THIS AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE AND WAIVERS OF CLASS ACTIONS AND CLASS ARBITRATIONS.
For a complete list and description of the Product features and functions, please refer to the Administration Guide for the Product.
These Terms and Conditions are between you (“You”), an individual or an entity, and Xcitium Inc., a Delaware company, with offices at 200 Broadacres Drive, Second Floor, Bloomfield, NJ 07003, United States (hereinafter referred to as “Xcitium”).
In exchange for your use of the Xcitium Software and Services (collectively, the “Product”), you agree as follows:
1.1. Grant of License.
Xcitium grants you a limited, non-exclusive, non transferable, and revocable user license to download, install, access, back-up, and use the Product on one (1) network server or device under a valid license granted by Xcitium for the term that you have paid for, including any documentation and files (electronic or physical) accompanying the Product. You shall not resell, lease, sell, modify, reverse engineer, decompile, or create derivative works of the Software. All rights not expressly granted herein are reserved to Xcitium.
This License grant shall expire at the end of the paid subscription period or at the end of the trial period.
The licenses granted herein are only valid if:
When registering Product, you must provide accurate information and must update the registration information if it changes. Xcitium may limit your ability to use the Product if you fail to complete a required registration process. You may also be required to select a username and password. Maintaining the confidentiality of this password and username is your responsibility. You must notify Xcitium immediately of any unauthorized use of your account.
1.4. Limited License.
The licenses granted herein are only for the registered end user for one (1) device for which you paid for the Product. Each of these devices must be enrolled and activated through the Product. You can secure additional mobile or end devices by obtaining a separate license, which might require an additional fee. You must have a license for each mobile or end device that accesses or uses the Product prior to installing or using the Product.
Xcitium is not obligated to provide updates to the Product. If an update is provided and the update is not accompanied by an additional agreement, this agreement applies to your use and installation of the update. The Product may update automatically without notice.
1.6. Technical Support.
Xcitium is not obligated to provide technical or customer support for the Product. In the event technical or customer support is offered or included, Xcitium has a right to alter or terminate the support at any time without notice. Xcitium may charge for the technical or customer support according to terms agreed in an applicable purchase order or written document between the parties.
1.7. Trial, Free, Evaluation, and Beta.
If this agreement pertains to a trial, free, beta, or evaluation version, the licenses granted herein terminate at the end of the trial or evaluation period or when Xcitium disables access to the Product. For a trial version of the Product if no term is agreed or specifically set forth in the documentation that you receive with this Product, then the term for the licenses granted herein shall be for the term that you purchased. All trial, evaluation, and beta licenses are limited to one per customer. Generally, credit card or account information is required to access a free trial. However, Xcitium shall not charge your credit card or account until the trial period has ended. At the end of the trial period, Xcitium may bill the credit card or account for the Product without further notice. Participants in a free trial are not entitled to a 30 day refund period. Your termination of this agreement prior to the end of the free trial is required to avoid fees for the Product. Annual subscriptions expire one year from the end of the trial period. Xcitium may deny or revoke a free trial for any reason.
2.1. No Ownership Rights.
The Product is being licensed, not sold. Xcitium retains all ownership rights in and to the Product, including any intellectual property rights therein.
The Product contains material that is protected by United States and foreign intellectual property laws, including copyright, trade secret, and patent law. All rights not granted to you herein are expressly reserved by Xcitium. You may not remove any copyright or other proprietary notice of Xcitium from the Product.
Content, including files, links, images, and text, made available or accessible through the Product is the sole responsibility of the person or entity from whom it originated and is the property of the applicable owner. This agreement does not give any rights to such content. Xcitium does not endorse any such content. You accept all responsibility for security risks and any damage resulting from any content viewed or accessed through the Product, and Xcitium is not responsible for any damage or loss caused by your use or reliance on any of the content, goods or services, or information available through third party sources regardless of how presented.
Any communications sent to Xcitium are the property of Xcitium or its affiliates. Unless stated otherwise herein, submissions are not considered confidential, and Xcitium is not liable for any use or disclosure of a submission. Except as noted herein, Xcitium is entitled to unrestricted use of any submissions for any purpose whatsoever without compensation to the provider of the submission.
If there is a free version of the Product, it may be used without payment to Xcitium. For a paid Product, you must pay the fee listed on any applicable purchase order or Xcitium’s website/portal prior to using or accessing the Product. Free and paid for Product are listed on www.Xcitium.com. Xcitium may modify fees for paid Product in its sole discretion. Your failure to terminate this agreement after a fee change is posted to Xcitium’s website/portal constitutes your acceptance of amended prices, which will apply upon your renewal of the Product.
3.2. Method of Payment.
All fees must be paid in advance. Xcitium may automatically charge the credit card or account provided for renewing subscriptions to the Product. However, you remain solely responsible for any renewal payment. If renewal payments are not made before a subscription expires, Xcitium may, without notice, restrict or remove your access to the Product.
3.3. Rejected Charges.
If any charges are rejected by your financial institution or account issuer then Xcitium may deactivate your account until payment is successfully received. Xcitium may deactivate any account that has a disputed charge until Xcitium, in its sole discretion, determines the dispute resolved.
3.4. Billing Issues.
You shall provide Xcitium notice of any billing problems or disputes within 60 days after the charge first appears on a statement you receive from your bank, credit card company, or other billing company. Failure to notify Xcitium of the problem within the 60 day period is your acceptance of the charges. Xcitium is not obligated to provide a refund for any unused Product.
4.1. Lawful Use.
The Product is solely for lawful purposes and use. You are responsible for ensuring that your use of the Product is in accordance with this agreement and any applicable laws, statutes, ordinances, regulations, rules and other government authority.
You shall: (1) not interfere or disrupt networks connected to Xcitium’s services; (2) comply with all regulations, policies and procedures of networks connected to the services; (3) not use the Product to infringe the privacy or intellectual property rights of a third party; (4) not use the Product to distribute or transmit any file that contains malware, (5) not attempt to gain unauthorized access to other computer systems or mobile devices; and (6) not use the Product to transmit any unlawful, harassing, libelous, defamatory, racist, indecent, abusive, violent, threatening, intimidating, harmful, vulgar, obscene material of any kind or nature.
You represent that you are not located in and will not modify, export or re-export, either directly or indirectly, the Product to any country or entity under United States restrictions or to any country or entity subject to applicable trade sanctions. The United States restricted country and persons list is subject to change without notice from Xcitium, and you must comply with the list as it exists in fact. XCITIUM SHALL NOT BE LIABLE FOR YOUR VIOLATION OF ANY SUCH EXPORT OR IMPORT LAWS, WHETHER UNDER UNITED STATES LAW OR FOREIGN LAW.
This agreement is effective for the term of the license(s) purchased, unless terminated earlier by you or by Xcitium as described herein. You may only use paid Product during the period for which you have paid the subscription fee. The subscription may be renewed by paying an additional license fee as set forth on the Xcitium website.
5.2. Termination by You.
For free software, you may terminate this agreement at any time by removing all copies of the software in your possession or under your control. All paid Product may be terminated by removing all copies of any related software and notifying Xcitium of your intent to terminate this agreement. (To uninstall, follow the instructions in section 5.5 below). Notification of termination must be sent by email to support@Xcitium.com. Your termination will be effective upon Xcitium’s receipt and processing of the email. Processing may take up to 72 hours.
5.3. Termination by Xcitium.
Xcitium may terminate this agreement at any time by posting notice of the termination via commercial carrier or sending an email to the address provided during your registration for the Product. Xcitium may monitor its systems for excessive consumption of network resources and may take technical or other remedies deemed necessary to prevent or eliminate any excessive consumption. If Xcitium deems your use to be excessive, Xcitium may, with email notice, terminate your account or adjust the price of the Product.
5.4. Events Upon Termination.
Upon termination, you must immediately cease using the Product and delete all copies of any related software found on your mobile or endpoint device and any backup copies made. Upon termination, Xcitium may disable further use of the Product without further notice and may delete, remove, and erase any account information, any backup data stored by Xcitium, and any other information stored or collected by Xcitium. Such deletions are in Xcitium’s sole discretion and may occur without notice to you. No refunds shall be given for any reason.
To uninstall the Xcitium application, you should be de-enrolled from the Xcitium server by the company administrator or you should remove the application. For Android devices, you should remove the application from the device administration screen first. You can find the menu under "Settings - Security - Device Administrators". You should disable the check mark from the Xcitium application under Device Administrator menu. If removal protection is set by your company administrator, your device would be locked and you will be asked to enter the unlock password. You can ask your company administrator to get the password. When you unlock it, you should go to “Settings – Application Manager” menu and find the Xcitium application from the list. You should tab on application name to see the details on App info menu. Under App info menu, you can see the action buttons. You should choose and tab “Uninstall”. (*Menu names and order could be not exactly as described in here due to Android versions and manufacturer customization. Please contact Xcitium if you need further help).
You shall indemnify (i) Xcitium, (ii) Xcitium’s affiliates, and (iii) Xcitium’s and its affiliate’s directors, officers, employees, attorneys, accountants or other professionals, and agents (each an “Indemnified Person”) against all liabilities, losses, expenses, or costs (including reasonable attorney’s fees) (collectively “Losses”) that, directly or indirectly, are based on your breach of this agreement, information provided by you, your infringement on the rights of a third party, or your violation of a law, including but not limited to any law or regulation relating to the privacy and/or security of your users and their devices.
6.2 Indemnification By Xcitium.
Xcitium hereby agrees to indemnify, defend and hold harmless You (an “Indemnified Person”), from and against, any and all Losses incurred by You in connection with any claim, action, suit or proceeding by a third party (each, a “Claim”) to the extent such Claim arises out of or results from Xcitium’s misappropriation of a trade secret of a third party or direct infringement of any U.S. patent, registered copyright, or registered trademark (“Intellectual Property Infringement”) related to the use of the Product. Xcitium’s indemnification obligations shall not apply to the extent any such infringement or misappropriation is the result of: (a) Your independent modification of the Product, or any other product, software or service provided under this agreement where without such modification the Product or other product would not infringe, (b) Your combination of the Product or any other product, software or service provided under this agreement with any other product, or use with any other product, (c) Xcitium’s adherence to Your express written instructions where such instructions and any modifications, changes or combinations made as a result of said instructions are solely responsible for the claim of infringement, (d) any Claim based on open source software or other third party code included with the Product, (e) any unauthorized use of the Product, or (f) use of the Product other than in accordance with the Documentation (any applicable administration guide for the current version of the Product).
6.2.1. Remedy and Liability: In the event that a court of final determination and of competent jurisdiction holds that the Product constitutes a direct infringement or use of the Product is enjoined, Xcitium shall, at its sole discretion, do one or more of the following: (i) procure for you the right to continue use of the Product, (ii) provide a modification to the Product so that its use becomes non-infringing, (iii) replace the Product with software that is substantially similar in functionality and performance or (iv), if none of the foregoing alternatives is reasonably available to Xcitium, Xcitium shall refund the residual value of the purchase price paid by you for the infringing Product, depreciated using a straight-line method of depreciation over a three (3) year period from the date of delivery of the Product to you. Xcitium may also request You to remove all copies of any Product held to be infringing or giving rise to a Claim.
THE AGGREGATE LIABILITY OF XCITIUM AND ITS AFFILIATES, AND THEIR OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, AND CONTRACTORS, RESULTING FROM OR CONNECTED TO THIS SECTION OF THE AGREEMENT SHALL BE LIMITED IN THE AGGREGATE TO THE AMOUNT PAID OR PAYABLE BY YOU UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO A CLAIM. THIS SECTION STATES XCITIUM’S SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
6.3 Indemnification Procedure.
Each Indemnified Person must notify the other party promptly (within 14 days) of a demand for indemnification. However, an Indemnified Person’s failure to notify will not relieve the other party from its indemnification obligations except to the extent that the failure to notify materially prejudices a party. The Indemnitor may assume the defense of any action, suit, or proceeding giving rise to an indemnification obligation unless assuming the defense would result in potential conflicting interests as determined by the Indemnified Person in good faith. Indemnitor may not settle any claim, action, suit or proceeding related to this Agreement unless the settlement also includes an unconditional release of all Indemnified Persons from liability.
6.4 Additional Liability.
Your indemnification obligations are not Xcitium’s sole remedy for a breach and are in addition to any other remedies Xcitium may have against you under this agreement. Your indemnification obligations survive the termination of this agreement.
7. Disclaimers and Limitation of Liability.
You acknowledge that the Product is subject to the operation and telecommunications infrastructures of the Internet and the operation of your Internet connection services, all of which are beyond Xcitium’s control.
7.2. Guarantee Disclaimer; Assumption of Risk.
EXCEPT AS SPECIFICALLY STATED OTHERWISE IN THIS AGREEMENT, XCITIUM EXPRESSLY DISCLAIMS ALL IMPLIED AND EXPRESS WARRANTIES IN THE PRODUCT. THIS DISCLAIMER INCLUDES ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND IS EFFECTIVE TO THE MAXIMUM EXTENT ALLOWED BY LAW. XCITIUM DOES NOT GUARANTEE THAT 1) THE PRODUCT WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS OR 2) THAT ACCESS TO THE PRODUCT WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. YOU ACKNOWLEDGE THAT IF YOU WISH TO PROTECT YOUR TRANSMISSION OF DATA OR FILES, IT IS YOUR RESPONSIBILITY TO USE A SECURE ENCRYPTED CONNECTION TO COMMUNICATE WITH THE SERVICES. XCITIUM IS NOT RESPONSIBLE FOR ANY PRE-EXISTING CONDITION ON YOUR NETWORK OR DEVICE(S).
7.3. Damage Limitation.
EXCEPT AS STATED UNDER SECTION 6.2.1 (INDEMNIFICATION FOR INTELLECTUAL PROPERTY INFRINGEMENT), THE TOTAL LIABILITY OF XCITIUM AND ITS AFFILIATES, AND EACH OF THEIR OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, AND CONTRACTORS, RESULTING FROM OR CONNECTED TO THIS AGREEMENT IS LIMITED TO THE AMOUNT PAID BY YOU FOR THE PRODUCT. YOU WAIVE ALL LIABILITY FOR SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES. THIS WAIVER INCLUDES ALL DAMAGES FOR LOST PROFITS, REVENUE, USE, OR DATA AND APPLIES EVEN IF XCITIUM IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. These limitations apply to the maximum extent permitted by law regardless of 1) the reason for or nature of the liability, including tort claims, 2) the number of claims, 3) the extent or nature of the damages, and 4) whether any other provisions of this agreement have been breached or proven ineffective.
7.4. Data Transfer.
ALL MATERIAL AND/OR DATA DOWNLOADED OR OBTAINED THROUGH THE PRODUCT IS AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR THE USE OR YOUR POSSESSION OF SUCH DATA OR MATERIAL. XCITIUM DOES NOT ACTIVELY MONITOR ANY INFORMATION OR MATERIAL TRANSFERRED THROUGH ITS PRODUCT AND CANNOT WARRANT THE CONTENT OF SUCH MATERIAL OR DATA.
If any legal right disallows an exclusion of warranties or disallows limiting certain damages, then the disclaimers of guarantee and limitations on liability herein apply to the maximum extent allowed by law.
7.6. Limitations on Remedy.
Except for actions and claims related to a party’s indemnification obligations, all actions or claims relating to this agreement must be brought within one (1) year from the date when the cause of action occurred.
Xcitium will disclose information where required by a subpoena, interception order or other lawful process. Xcitium may also disclose information when it believes that such disclosure is necessary to protect the rights or safety of others or to enforce, or protect Xcitium’s rights under this Agreement.
8.4. Opt Out.
You may opt-out of having information used for purposes not directly related to the Product by emailing a clear notice to optout@Xcitium.com. By accepting this Agreement, you affirmatively consent to receiving Xcitium’s promotional material.
8.5. User Data Compliance.
You are responsible for ensuring that you or any users of the Product comply with the obligations under this Agreement. You will duly observe all your obligations under any relevant data protection or privacy law or regulation that may apply, including any obligation to configure the Product appropriately, provide notice, obtain consent, or file documents with any applicable data protection authorities. You are responsible for developing a policy that protects user data, outlines the responsibilities of you and your users, and informs your users of the scope your use of the Product.
All questions, notices, demands, or requests to Xcitium with respect to this Agreement shall be made in English writing to Xcitium Inc., 200 Broadacres Drive, Second Floor, Bloomfield, New Jersey 07003, USA. All notices to you shall be made by posting the notice on the Xcitium website.
9.2. Governing Law.
The laws of New Jersey, USA govern the interpretation, construction, and enforcement of this Agreement and all proceedings arising out of it, including tort claims, without regard to any conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to this Agreement and are specifically excluded.
9.3. Entire Agreement.
This agreement, along with the attached schedules and any documents referred to herein, is the entire agreement between the parties with respect to the subject matter, superseding all other agreements that may exist with respect to the subject matter. Section headings are for reference and convenience only and are not part of the interpretation of the agreement.
Xcitium may amend or discontinue the Product offered under this agreement in its sole discretion, including modifying renewal license fees, availability, equipment and software requirements, and limiting or restricting use of Product. Xcitium may amend this agreement to the extent allowed by law. Xcitium will give you notice of these amendments by posting the modified agreement to its website. You must periodically visit Xcitium’s website to be aware of any changes. Continued use of a Product after an amendment constitutes your acceptance of the change.
A party’s failure to enforce a provision of this agreement does not waive the party’s right to enforce the same provision later or right to enforce any other provision of this agreement. To be effective, all waivers must be both in writing and signed by the party benefiting from the waived provision.
9.6. Force Majeure and Internet Frailties.
Other than for payment obligations by you, neither party will be liable for a delay or failure to perform an obligation to the extent that the delay or failure is caused by an occurrence beyond the party's reasonable control. Each party acknowledges that the operation of the Internet is beyond the other party’s reasonable control, and neither party will be liable for a delay or failure caused by an interruption or failure of telecommunication or digital transmission links, Internet slow-downs or failures, or other such transmission failure.
You agree that any dispute, claim or controversy arising out of this agreement shall be determined by binding arbitration. Before you may begin arbitration with respect to a dispute involving any aspect of this Agreement, you shall notify Xcitium and any other party to the dispute for the purpose of seeking dispute resolution. The notice to Xcitium should be addressed to Xcitium Inc., 200 Broadacres Drive, Second Floor, Bloomfield, New Jersey 07003, USA. If the dispute is not resolved within sixty (60) days after the initial notice, then a party may proceed in accordance with the following: The laws of New Jersey, USA govern the interpretation, construction, and enforcement of this agreement and all proceedings arising out of it, including tort claims, without regard to any conflicts of law principles. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association if both parties are located in the United States with venue in Bloomfield, New Jersey, U.S.A or if a party is located outside of the United States, by the International Chamber of Commerce in accordance with its Arbitration Rules, with the venue in New York City, NY, USA and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Either party may appear before the panel by telephone or video conference. The language of the proceeding shall be English.
WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS.
YOU AND XCITIUM AGREE THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER YOU NOR XCITIUM WILL SEEK TO HAVE ANY DISPUTE HEARD AS A FEDERAL OR STATE CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATION OR PROCEEDINGS.
You may not assign any of your rights or obligations under this agreement, whether by merger, consolidation, operation of law, or any other manner, without the prior written consent of Xcitium. For purposes of this section only, a change in control is deemed an assignment. Any transfer without consent is void. To the extent allowed by law, Xcitium may assign its rights and obligations without your consent.
Any provision held invalid or unenforceable will be reformed to the minimum extent necessary to make the provision valid and enforceable. If reformation is not possible, the provision is deemed omitted and the balance of the agreement remains valid and enforceable.
All provisions relating to confidentiality, proprietary rights, indemnification, and limitations of liability survive the termination of the agreement.
9.11. Rights of Third Parties.
There are no third party beneficiaries under the agreement.