Xaptum Inc. Terms of Service

Last Modified: January 1st, 2018

Acceptance of the Terms of Use

By clicking “accept” when presented with these terms of use (“Terms”), or by otherwise accessing or using the Xaptum website or the Xaptum service (together, the “Service”), however accessed, you agree to be bound by these Terms. The Service is owned or controlled by Xaptum, Inc., a Delaware corporation (“Xaptum”). These Terms affect your legal rights and obligations. If you do not agree to be bound by all of these Terms and our Privacy Policy which can be found at http://www.xaptum.co/privacy, do not access or use the Service.

Changes to the Terms

We may revise these Terms from time-to-time in our sole discretion, and the most current version will always be posted on our website at http://www.xaptum.co/terms. If, in our sole discretion, we deem a revision to be material, we will notify you. By continuing to access or use the Service after revisions become effective, you agree to be bound by the revised Terms. If you do not agree to the new terms, you must stop using the Service.

Accessing the Service and Account Security

Because our Services operate on the Google Cloud Platform, we cannot guarantee service continuity or uptime beyond what the Google Cloud Platform provides. Accordingly, we reserve the right to withdraw or amend the Service in our sole discretion without notice. We will not be liable if for any reason the Service is unavailable at any time or for any period. From time to time, we may restrict access to some or all parts of the Service to users. To access the Service or some of the resources it offers, you may be asked to provide certain registration details or other information. Please provide correct, current and complete information. You will be responsible for all activity associated with your account, including any fees incurred. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms.

Subscription and Payment Terms

Subscription Terms

You may use the Services only if you can form a binding contract with Xaptum, and only in compliance with these Terms and applicable laws. If you open an account on behalf of a company, organization, or other entity, then (i) “you” includes you and that entity, and (ii) you represent and warrant that you are authorized to grant all permissions and licenses provided in these Terms and bind the entity to these Terms, and that you agree to these Terms on the entity’s behalf. You may subscribe to the Services for your own internal use, or on behalf of another person or entity for whom you provide services (a “Sub-User”), provided that such Sub-Users are provided with a copy of these Terms and agree to be bound by the terms hereof. As an express condition of your use of and access to the Service, you agree to pay all fees applicable for your use and for any Sub-Users which you permit to access the Services using your account and any applicable taxes in connection with such use of the Service, and to be responsible for any acts of your Sub-Users in breach of these Terms as if such acts were performed by you. We reserve the right, at any time to change and/or increase the fees for the Service, at our sole discretion and upon reasonable notice posted in advance. Your subscription will renew automatically and continue month-to-month unless and until you cancel your subscription or we terminate it, in each case pursuant to these Terms.

Payment of Fees

Fees will be charged to your credit card on the first day of each month for service usage in the previous month. Our current fees and any applicable discounts or promotional offers are described on http://www.xaptum.co. You must cancel your subscription before it renews in order to avoid fees due under the next billing cycle. The fees for your use of the Services are billed on the last day of each billing cycle andare non-refundable, and automatically renew on a monthly basis. No refunds or credits will be provided for partial months of the Service, or for months unused with an open account.

We will bill the fees due in connection with your use of the Services to the credit card you provide to us during registration (or to a different credit card if you change your payment information). You acknowledge that the amount billed for each renewal period may vary due to promotional offers, changes in your volume of usage or number of subscribed connections, and changes in applicable taxes, and you authorize us to bill you the corresponding amounts.

We reserve the right to deactivate your access to the Service for failure to pay applicable fees as described in these Terms. Unless otherwise stated, all fees are stated in U.S. Dollars. You acknowledge acknowledges that use of the Services in a manner not consistent with these Terms may affect Services performance and/or may result in additional fees. If the Services permit you to exceed the ordered quantity (e.g. soft limits for number of concurrent devices or total messages sent), you will be billed for the additional quantity to account for such excess usage.

Credit Card Payments

All fees for your use of the Services will be billed to your credit card on a recurring basis. You authorize the card issuer to pay any amounts described herein and associated with your use of the Services and authorize us (or a billing agent acting on our behalf) to continue charging all such amounts to your credit card account until you or we cancel or terminate access to the Services or these amounts are paid in full, whichever is later. You must provide current, complete and accurate billing and credit card information, as failure to do so may result in Service interruptions. You agree to pay all costs of collection, including attorney's fees and costs, on any outstanding balance. In certain instances, the issuer of your credit card may charge you a foreign transaction fee or related charges, which you will be responsible to pay. Please check with your bank and credit card issuer for details.

Service Cancellation

You may cancel your account by using the cancel link provided in user settings . If you cancel your subscription to the Services before the end of your current billing period, you will not be charged again for the Services beginning with the next billing cycle. If you cancel your subscription to the Services, you will lose all access, effectively immediately upon cancellation, to the use of the Services.

Without limiting our other remedies, Xaptum may, at any time in its sole discretion, issue a warning, temporarily suspend, indefinitely suspend or terminate your account, and refuse to provide any or all of the Service. Once indefinitely suspended or terminated, you must not continue to use the Service under the same account, a different account, or register under a new account.

Upon termination, you continue to be bound by Sections 4 - 6, and 10 – 17 of these Terms.

Intellectual Property Rights / Our License to You

With the exception of Customer Data, the Service and all related contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof in), are owned by Xaptum, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. Xaptum’s name, the company logo and all related names, logos, product and service names, designs and slogans are trademarks of Xaptum or its affiliates or licensors. You must not use such marks without the prior written permission of Xaptum. All other names, logos, product and service names, designs and slogans on the Service are the trademarks of their respective owners.

Subject to these Terms and our policies, including the Acceptable Use Policy, we grant you a limited, non-exclusive, non-transferable, and revocable license to use our Service.

Customer Data

Anything that you submit for processing through the Services or otherwise transmit or make available on our Service is referred to as “Customer Data.” Our usage of the Customer Data is subject to our Privacy Policy, which is expressly incorporated herein by reference. You retain all rights in, and are solely responsible for, the Customer Data you transmit using the Service. All Customer Data must comply with the Terms, including, but not limited to, the Acceptable Use Policy set forth below.

We reserve the right to block, remove or modify Customer Data for any reason, including Customer Data that we believe violates these Terms or our policies. We may retain your Customer Data for a commercially reasonable period of time for backup, archival, or audit purposes.

You represent and warrant that you own or control all rights in and to the Customer Data and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns and that all of your Customer Data will comply with these Terms.

You understand and acknowledge that you are responsible for any Customer Data you and your Sub-Users submit or contribute, and you, not Xaptum, have fully responsibility for such content, including its legality, reliability, accuracy and appropriateness. We are not responsible, or liable to any third party, for the content or accuracy of any Customer Data provided by you or any other user of the Service.

Acceptable Use Policy

Prohibited Activities

You agree not to engage in any of the following prohibited activities:

Access, tamper with, or use non-public areas of the Service, our computer systems, or the technical delivery systems of our providers;

Attempt to probe, scan, or test the vulnerability of any Xaptum system or network or breach any security or authentication measures;

Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Xaptum or any of our providers or any other third party (including another user) to protect the Service or any related content;

Attempt to use the Services to send any unsolicited or unauthorized spam, advertising messages, promotional materials, email, junk mail, chain letters or other form of solicitation;

Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Service;

Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing;

Attempt to use the Services to interfere with or disrupt any third party’s server, host, or network, including, without limitation, through sending a virus, overloading, flooding, spamming, mail-bombing, or conducting directed denial of service attacks.

Violate any applicable law or regulation;

Take any action that may cause us to lose any of our services from our internet service providers, payment processors, or other suppliers;

Access or use the Services in, or in association with, the design, construction, maintenance, operation of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage; or

Encourage or enable any other individual to do any of the activities prohibited in this Acceptable Use Policy.

Prohibited Data

You acknowledge that the Services are not designed with security and access management for processing the following categories of information: (a) personal information, including any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located, including all “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996, “Personal Data” as defined in the EU Data Protection Directive (Directive 95/46/EEC), and “Personal Information” as defined under the Children’s Online Privacy Protection Act of 1998, and all rules and regulations issued under any of the foregoing; (b) data that is classified and or used on the U.S. Munitions list, including software and technical data; (c) articles, services and related technical data designated as defense articles or defense services; and (d) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, “Prohibited Data”). You may not, and may not permit any Sub-User or other person to, provide any Prohibited Data to, or process any Prohibited Data through, the Services. You are solely responsible for reviewing all Customer Data and will ensure that no Customer Data constitutes or contains any Prohibited Data.

Xaptum will not be held liable for the violation of the above terms or any other illegal activity.

Copyright Infringement

We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Service infringe your copyright, you may request removal of those materials (or access thereto) from the Service by submitting written notification to our Copyright Agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:

Your physical or electronic signature

Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Service, a representative list of such works.

Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.

Adequate information by which we can contact you (including your name, postal address, telephone number and, if available, email address).

A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law.

A statement that the information in the written notice is accurate.

A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

Our designated Copyright Agent to receive DMCA Notices is:

Xaptum, Inc.
Attn: Legal Counsel
222 W. Merchandise Mart Plaza
Suite 1212
Chicago, IL 60654

It is our policy, in appropriate circumstances, to disable and/or terminate the accounts of users who are repeat infringers.

Disclaimer of Warranties

YOUR USE OF THE WEBSITE, ITS CONTENT AND ANY SERVICE OR ITEMS OBTAINED THROUGH THE SERVICE IS AT YOUR OWN RISK. THE SERVICE AND ITS CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER XAPTUM NOR ANY PERSON ASSOCIATED WITH XAPTUM MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SERVICE. WITHOUT LIMITING THE FOREGOING, NEITHER XAPTUM NOR ANYONE ASSOCIATED WITH XAPTUM REPRESENTS OR WARRANTS THAT THE SERVICE OR ANY INFORMATION PROVIDED ON THE SERVICE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE WEBSITE OR ANY SERVICE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. XAPTUM HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Limitation on Liability

IN NO EVENT WILL XAPTUM, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICE, ANY WEBSITES LINKED TO IT, OR ANY CONTENT ON THE SERVICE, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. IN NO EVENT WILL XAPTUM’S AGGREGATE LIABILITY EXCEED THE AMOUNT YOU HAVE PAID FOR THE SERVICES IN THE SIX (6) MONTHS PRECEDING THE DATE ANY CLAIM ARISES.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Indemnification

You agree to defend, hold harmless and indemnify Xaptum from and against any and all losses, costs, expenses, damages or other liabilities incurred by Xaptum from and against any cost, liability, loss, damage, cause of action, claim, suit, proceeding, demand or action brought by a third party against Xaptum: (1) in connection with your or your Sub-User’s use of the Service; or (2) your or your Sub-User’s decision to transmit any Customer Data using the Services. Any such indemnification is conditioned on our: (i) notifying you in writing of any such claim, demand, action, cost, liability, loss or threat of any thereof; (ii) cooperating with you in the defense or settlement thereof; and (iii) allowing you to control such defense or settlement. We will be entitled to participate in such defense through our own counsel at our own cost and expense. We reserve the right to report any wrongdoing of which we become aware to the applicable government agencies or otherwise.

Governing Law and Jurisdiction

All matters relating to the Service and these Terms and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), are governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction). Any legal suit, action or proceeding arising out of, or related to, these Terms or the website may be instituted exclusively in the federal courts of the United States or the courts of the State of Illinois in each case located in the City of Chicago and Cook County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

Our Service is controlled and operated from the United States, and we make no representations that it is appropriate or available for use in other locations.

Agreement to Arbitrate

If any controversy, allegation, or claim arises out of or relates to the Service, the website, or these Terms, including, but not limited to, claims for indemnification, contribution, or cross-claims in a pending action involving one or more third parties (collectively, a “Dispute”), then either you or Xaptum may elect to submit the Dispute to be finally and exclusively resolved by binding arbitration before a sole arbitrator in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. If an in-person arbitration hearing is required, then it will be conducted in Chicago, Illinois; but if the applicable arbitration rules or laws require the arbitration to be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration, Xaptum will have the right to elect to proceed to arbitration in such location. If the value of the relief sought is $10,000 or less, you or Xaptum may elect to have the arbitration conducted by telephone or based solely on written submissions, which election will be binding on you and Xaptum subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by you and/or Xaptum, unless the arbitrator requires otherwise.

All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. You and Xaptum will pay the administrative and arbitrator's fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Xaptum to pay a greater portion or all of such fees and costs in order for this Section 15 to be enforceable, then Xaptum will have the right to elect to pay the fees and costs and proceed to arbitration.

In arbitration, as with a court, the arbitrator must honor the terms of these Terms and can award the prevailing party damages and other relief (including attorneys' fees). However, WITH ARBITRATION (i) THERE IS NO JUDGE OR JURY, (ii) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (iii) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES OR IT WILL BE FOREVER BARRED.

TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT NO ARBITRATION MAY BE JOINED WITH ANY OTHER; THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A REPRESENTATIVE OR CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; AND THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ANY OTHER PERSONS.

Waiver and Severability

No waiver by Xaptum of any term or condition set forth in these Terms are a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Xaptum to assert a right or provision under these Terms does not constitute a waiver of such right or provision. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision will be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.

Entire Agreement

The Terms and our Privacy Policy constitute the sole and entire agreement between you and Xaptum with respect to the Service and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Service.

Your Comments and Concerns

All other feedback, comments, requests for technical support and other communications relating to the Service should be directed to [email protected] .