These TERMS OF SERVICE (this “Agreement”) is made between Ximplify. (“Ximplify”) and you, or, if you represent an entity or other organization, that entity or organization (in either case “You”).
Ximplify provides certain services relating to the development, transmission, analysis, and management of email messages (the “Services”) through the web site located at www.ximplify.com and such other sites as may be designated by Ximplify (each, the “Site” or collectively, the “Sites”).
All access to and use of the Services available through the Site is subject to the terms of this Agreement. If You wish to access and use the publicly available portions of the Services and the Site, You may do so only in compliance with the terms of this Agreement. If You have placed or later place an order (whether through the Site, by email, phone or otherwise) with Ximplify (Your “Order”) seeking to access and use certain of the Services requiring registration, Ximplify is willing to accept Your Order and provide You with access to and use of those Services only if You comply with the terms and conditions of this Agreement.
PLEASE CAREFULLY READ THIS AGREEMENT. BY SUBMITTING AN ORDER OR BY ACCESSING OR USING THE SITE OR SERVICES, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, XIMPLIFY IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE SITE OR SERVICES AND YOU MUST NOT ACCESS OR USE THE SITE OR SERVICES. IF YOU ACCESS OR USE THE SITE OR SERVICES, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT.
This Agreement is entered into as of the earlier of the date You first submit an Order relating to the Services or first access or use the Services or a Site (the “Effective Date”). This Agreement consists of the following terms and conditions and each Order submitted by You and accepted by Ximplify, each of which is incorporated in and made a part of this Agreement. Unless otherwise amended as provided herein, this Agreement will exclusively govern Your access to and use of the Services and the Sites and is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties, regarding Your access to and use of the Services and the Sites. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties. All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Ximplify reserves the right, at any time, to change or modify the Site, Services or this Agreement, by making such change or modification available on the Site or by providing other notice to You. Any such change or modification will be effective 30 days after posting on the Site or such other notice. As applicable, You will be deemed to have agreed to such change or modification through Your continued use of the Site or Services.
Terms used in this Agreement will have the definitions given in this Agreement or, if not defined in this Agreement, will have their plain English meaning as commonly interpreted in the United States.
All Orders placed by You will be governed by the terms of this Agreement. Ximplify will confirm Your Order either through the Site at the time you submit Your Order or by providing You with access to the Services (each, a “Confirmation”). If the terms of any Order conflict with the terms of any Confirmation of that Order, the terms of the Confirmation will govern and control with respect to the Services provided to You. This Agreement will govern and control the terms of each Order and Confirmation under this Agreement. By accessing or using any of the Services, You agree to be bound by the terms of this Agreement and each applicable Order and Confirmation with respect to those Services.
This Agreement will be effective upon the Effective Date. If You have ordered a trial subscription to the Services or a subscription to any free Services, as indicated in an applicable Order or Confirmation (a “Trial/Free Subscription”), then the term of this Agreement will continue for the period of the Trial/Free Subscription indicated in the applicable Order or Confirmation and will thereafter expire unless You place an Order for a non-trial subscription to the Services prior to the completion thereof. If You have ordered a non-trial subscription to the Services, then the term of this Agreement will continue for the initial period stated in the applicable Order or Confirmation for the Services and will thereafter automatically renew for successive additional periods of equal duration. If no initial period is stated in the applicable Order or Confirmation for the Services, this Agreement will continue for an initial period of 1 month and will thereafter automatically renew for successive additional 1-month periods. Unless terminated as set forth herein, the term of this Agreement will continue to renew until You notify Ximplify that You do not wish to renew the Agreement at least 10 days prior to the end of the then-current period. In all other cases, the term of this Agreement will continue until terminated as set forth herein.
Subject to this Agreement, during the term of this Agreement Ximplify will provide You with a limited subscription to access and use the Services subject to Confirmations under this Agreement, solely for Your own use in connection with your own business purposes. Your rights to access and use the Services are personal, non-exclusive, non-transferable and non-sub licensable. You understand that Ximplify may from time to time, in its sole discretion, update, change, revise, suspend or discontinue the Services (or any portion thereof) with or without notice.
Upon Confirmation of Your Order by Ximplify, the rights granted to You under this Agreement entitle You to access the Services through accounts (each, an “Account”). You will be provided with a user identification and password applicable to each Account You have purchased (each such user identification and password, an “Account ID”). Each Account ID is personal in nature and may be used only by You or, if You are an organization, by designated employees within Your organization or contractors who are contractually required to comply with the terms of this Agreement (such individual, as applicable, the “User” of the Account). You are solely responsible for all use of the Services by each User and for compliance by each User with the applicable terms of this Agreement. You will ensure the security and confidentiality of each Account ID and will notify Ximplify immediately if any Account ID is lost, stolen or otherwise compromised. You acknowledge that You are fully responsible for all costs, fees, liabilities or damages incurred through use of each Account ID (whether lawful or unlawful) and that any Services ordered or transactions completed through any Account or under any Account ID will be deemed to have been lawfully completed by You. In no event will Ximplify be liable for the foregoing obligations or the failure by You to fulfil such obligations. You will be solely responsible, at Your own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for You and each User to connect to, access, and use the Services and the Sites.
Any software or code available on or for download through the Site or Services (“Software”) is protected by IPR (as defined below). Unless otherwise expressly stated in a license or other agreement separate from this Agreement that You may have entered into (or may enter into) with Ximplify relating to any Software (each such license or other agreement, a “Software License Agreement”), Ximplify grants you a limited, non-exclusive right and license to either access or download, install and execute the Software in accordance with the instructions provided on the Site and solely for your own business purposes in connection with Your access to and use of the Services. Except as expressly set forth in the foregoing sentence (or any applicable Software License Agreement), You are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any Software or any IPR therein or related thereto, and You may not modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit any portion of the Software without the prior written permission of Ximplify. Except as set forth in this Agreement, any Software License Agreement will control in the event of a conflict between the terms of this Agreement and that Software License Agreement.
The Services may include services developed, provided or maintained by third-party service providers (“Third Party Services”). In addition to the terms of this Agreement, Your access to and use of any Third Party Services is also subject to any other agreement separate from this Agreement that You may enter into (or may have entered into) relating to those Third Party Services (each, a “Third Party Service Agreement”). The terms of any Third Party Service Agreement will apply to the applicable Third Party Services provided under that Third Party Service Agreement in addition to the terms of this Agreement. Except as set forth in this Agreement, the terms of any Third Party Service Agreement will control in the event of a conflict between the terms of this Agreement and that Third Party Service Agreement. All other Third Party Services will be subject to the terms of this Agreement. Third Party Services may be subject to additional Fees as set forth on the Site. Notwithstanding the terms of any Third Party Services Agreement, Ximplify may change, modify or discontinue any Third Party Service at any time and without notice to You. Except as expressly set forth in this Agreement or any Third Party Service Agreement, You are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any Third Party Services.
You acknowledge that the Services, Sites, Software, and the databases, software, hardware and other technology used by or on behalf of Ximplify to provide the Services and operate the Sites (the “Technology”) and their structure, organization, and underlying data, information and source code constitute valuable trade secrets of Ximplify. You will not, and will not permit any third party to: (1) access or use the Services or the Sites, in whole or in part, except as expressly provided in this Agreement; (2) use the Site, Services or any Software to harvest or collect e-mail addresses or other contact information of third parties by any means for the purposes of sending unsolicited e-mails or other unsolicited communications; (3) use the Site, Services or any Software in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Site or Services; (4) use automated scripts to collect information from or otherwise interact with the Site, Services or any Software; (5) use the Site, Services or any Software to intimidate or harass any other people or entities; alter, modify, reproduce, create derivative works of the Services, Technology, or any Software; (6) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of Your rights to access or use the Services or any Software, including, without limitation, providing outsourcing, service bureau, hosting, application service provider or on-line services to third parties, or otherwise make the Services or any Software, or access thereto, available to any third party; (7) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Site, Services, Technology or any Software; (8) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Sites, Services, Technology, or any Software; or (9) interfere in any manner with the operation or hosting of the Sites, Services, Technology or any Software, or attempt to gain unauthorized access to the Sites, Services, Technology or any Software. You will not allow any access to or use of the Services by anyone other than Your authorized Users, and any such use will be consistent with the terms, conditions and restrictions set forth in this Agreement.
You agree to pay Ximplify all fees set forth in each Order or Confirmation and any fees otherwise specified on the Site or through the Services (“Fees”). All Fees will be billed as indicated in each Order or Confirmation. If the applicable Order or Confirmation does not specify any applicable billing terms, the initial payment of Fees specified under that Order or Confirmation for each period in Your subscription will be due and payable by You in advance on or before the Effective Date and again on or before the completion of each subsequent period under this Agreement. If You have specified credit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, You grant Ximplify the right to charge the credit card or debit the bank account provided to Ximplify for all Fees incurred under this Agreement. All Fees will be non-refundable once paid to Ximplify (including upon any termination or suspension of this Agreement). Until paid in full, all past due amounts will bear an additional charge of the lesser of 1 1/2% per month or the maximum amount permitted under applicable law. Ximplify may change any portion of the Fees by posting the changes to the Sites or otherwise notifying You through the Services of the change, such changes to take effect at the beginning of the next period of this Agreement. If Ximplify requires use of collection agencies, attorneys, or courts of law for collection on Your account, You will be responsible for those expenses. You will be responsible for all use, sales, and other taxes imposed on the Services provided under this Agreement.
This Agreement may be terminated by Ximplify, at any time, in Ximplify’s sole discretion: (1) upon any breach by You of this Agreement that remains uncured ten (10) days after Ximplify delivers written notice to You of such breach; or (2) at any time during any Trial/Free Subscription, for any reason or no reason, upon notice to You. Without limiting Ximplify’s right to terminate this Agreement, Ximplify may also immediately and indefinitely suspend Your access to the Sites or Services, with or without notice to You, upon any actual, threatened or suspected breach of this Agreement or of applicable law or upon any other conduct deemed inappropriate or detrimental to the Services by Ximplify. Upon termination or expiration of this Agreement for any reason: (a) all rights and subscriptions granted to You under this Agreement will terminate; (b) You will immediately cease all use of and access to the Sites and Services; © all Fees then owed by You will become immediately due and payable; (d) You will immediately either return to Ximplify or, at Ximplify’s discretion, destroy the Ximplify Content, Account IDs, Ximplify Confidential Information, and other information related to this Agreement in Your possession or control; and (e) Ximplify may delete any of Your Content held by Ximplify within 10 days after the date of termination. Sections 6 (Applicable Policies), 9 (Restrictions), 10 (Fees and Payment), 11 (Termination and Suspension), 12 (Ownership), 14.3 (Warranties and Disclaimer: Disclaimer), 15.2 (Indemnity: By You), 16 (Limitation on Liability), 17 (Data Privacy), 18 (Confidentiality), 21 (Disputes), 22 (Governing Law) and 23 (General) will survive any expiration or termination of this Agreement.
Ximplify retains all right, title and interest, including, without limitation, all IPR (as defined below), in and to the Sites, Services, Technology, Ximplify Content (as defined below), any Software, and any additions, improvements, updates, and modifications thereto. You acknowledge that You are not receiving any ownership interest in or to any of the foregoing, and no right or license is granted to You to use them apart from Your right to access the Services under this Agreement. The Ximplify name, logo and the product and service names associated with the Services are trademarks of Ximplify (or its third party providers), and no right or license is granted to You to use them. For purposes of this Agreement, “IPR” means any and all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.
IN NO EVENT WILL XIMPLIFY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN ANY WAY IN CONNECTION WITH OR OUT OF THEUE OF THE SITES, SERVICES (OR ANY XIMPLIFY CONTENT PROVIDED THROUGH THE SITES OR SERVICES), EVEN IF XIMPLIFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. XIMPLIFY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID TO XIMPLIFY HEREUNDER IN THE 1 MONTH PRECEDING ANY SUCH INITIAL OCCURRENCE OF LIABILITY (OR, IF NO SUCH FEES HAVE BEEN PAID,$10). YOU AGREE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGE THAT XIMPLIFY WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, XIMPLIFY’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
17.1 shall process such data only in accordance with Your instructions and in compliance with all applicable laws relating to data protection
17.2 shall operate appropriate technical and organisational measures to protect against unauthorised or unlawful processing of such data and against accidental loss or destruction of, or damage to, such data.
Just as Ximplify requires users of the Site to respect the copyrights and other intellectual property rights of Ximplify, its affiliates, and other third parties, Ximplify respects the copyrights and other intellectual property rights of Users of the Site and other third parties. Linked Sites. The Site and communications sent through the Services may contain links to third-party sites that are not under the control of Ximplify, and Ximplify is not responsible for any content on any linked site. If you access a third-party site from the Site or from a communication sent through the Services, then you do so at your own risk. Ximplify provides links only as a convenience, and the inclusion of the link does not imply that Ximplify endorses or accepts any responsibility for the content on those third-party sites. Ximplify welcomes links to the Site. You may establish a link to this Site, provided that the link does not state or imply any sponsorship or endorsement of Your site by Ximplify or any group or individual affiliated with Ximplify. You may not use on your site any Content or Marks appearing on the Site in establishing the link. You may not frame or otherwise incorporate into another site the Content or other materials on the Site without prior written consent.
Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”), in accordance with the procedures set forth in this Section 21. If the parties cannot agree on the appointment of a single arbitrator within 30 days (the “Initial Period”) after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted exclusively in the English language at a site specified by Ximplify. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrators will require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of Malaysia, and You irrevocably submit to the personal jurisdiction and venue of any such court in any such action or proceeding or in any action or proceeding brought in such courts by Ximplify.
If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. Neither this Agreement nor any rights or obligations of You hereunder may be assigned or transferred by You (in whole or in part and including by sale, merger or operation of law) without the prior written approval of Ximplify. Any assignment in violation of the foregoing will be null and void. Ximplify may assign this Agreement to any party that assumes Ximplify’s obligations hereunder. The parties hereto are independent parties, not agents, employees or employers of the other or joint ventures, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. This Agreement is the complete and exclusive statement of the agreement between the parties with respect to the subject matter of this Agreement, and this Agreement supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement. Ximplify may reference You as a user of the Services and use Your name and logo, as applicable, in listings of users of the Services appearing on the Ximplify web site and for other marketing and promotional purposes relating to the Services.