Exigence Terms of Service
TERMS OF SERVICE
Last Updated: February 1, 2021
These Terms of Service take effect on the earlier of: (i) when Customer issues to Exigence any executed Commercial Proposal or purchase order for the SaaS Services (each a "Purchase Order"), or (ii) when Customer clicks the “I accept” button or check box presented with these Terms of Service (the "Effective Date"). You represent and warrant that you have full legal authority to bind Customer to these Terms of Service and the Purchase Order.
In the event that these Terms of Service conflict with the provisions of any Purchase Order, the provisions of these Terms of Service shall prevail unless Exigence and Customer expressly agrees otherwise in writing and this is signed by both parties.
Exigence may update these Terms of Service from time to time and will notify Customer of such updates either via email or by posting notice of such changes on its website, or by any other reasonable means. Customer’s continued use of the SaaS Services after Exigence’s provision of a notice of an updated version of the Terms of Service shall constitute Customer’s consent to such updated Terms of Service.
1. Exigence Responsibilities
SaaS Services. During a Subscription Term, Customer will receive a nonexclusive, non-assignable, royalty free, worldwide right to access and use the SaaS Services, for use solely for Customer's own internal use, subject to the terms of these Terms of Service and up to the number of User Subscriptions (as defined below) set forth in a Purchase Order.
Protection of Customer Data. Exigence will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Customer Data. Those safeguards will include measures for preventing access, use, modification or disclosure of the Customer Data by Exigence's personnel except (a) to provide any services under these Terms of Service, (b) as compelled by law, or (c) as Customer expressly permits in writing.
2. User Subscriptions
SaaS Services are purchased as subscriptions to entitle such number of Users as set out in a Purchase Order to access and use the Software in accordance herewith (the "User Subscriptions"). User subscriptions may be added during a Subscription Term at the same pricing as the underlying User Subscription pricing, prorated for the portion of that Subscription Term remaining at the time the User Subscriptions are added. Any added User Subscriptions will terminate on the same date as the underlying User Subscriptions. Customer undertakes that:
the maximum number of Users that it shall authorize to access and use the SaaS Services will not exceed the number of User Subscriptions purchased from time to time under a specific Purchase Order;
it will not allow any User Subscription to be used by more than one individual user unless it has been reassigned in its entirety to another individual user, in which case the prior user will no longer have any right to access or use the SaaS Services;
each User will keep a secure password for its own use of the SaaS Services, that such password will be composed and changed no less frequently than as prescribed by Exigence, and that each User will keep its password personal and confidential; and
each User's log in to access the SaaS Services shall include a two factor authentication. Customer will be solely responsible for all actions taken by Users or through use of the passwords provided to such Users.
notify Exigence immediately of any unauthorized use of any password or user id or any other known or suspected breach of security;
report to Exigence immediately and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by Customer and/or any User; and
not provide false identity information to gain access to or use the Service.
3. Customer Responsibilities.
Customer Data. Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of Customer Data and the means by which Customer acquired Customer Data and retain ownership of all of Customer Data. Customer will upload any and all Customer Data that is required for the proper provision of the SaaS Services. Customer will comply with all applicable local, state, national and foreign laws in connection with its use of the SaaS Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer acknowledges that Exigence exercises no control over the content of the information transmitted by Customer and/or any User through the SaaS Services.
Customer will not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights. Customer is solely responsible for ensuring that the Customer Data does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious.
License from Customer. Subject to these Terms of Service, Customer grants to Exigence and its affiliates and subcontractors a worldwide, limited term, non-exclusive and non-transferable license: (i) to copy, store, host, configure, perform, display and transmit Customer Data solely as necessary to provide the SaaS Services to Customer in accordance with these Terms of Service, and (ii) to aggregate limited de-identified or anonymized Customer Data and/or data about Users, relating to Users' use of the SaaS Services, solely for the purpose of operating and improving the SaaS Services. Customer hereby authorizes Exigence to store the Customer Data on servers of third-party hosting services providers that may be utilized by Exigence from time to time.
Usage Restrictions. Customer will not, and will not permit anyone to:
copy or republish the SaaS Services or Software or any part, feature, function or user interface thereof;
make the SaaS Services available to any person other than authorized Users or allow any public performance or display of the SaaS Services or the Software;
use or access the SaaS Services for the benefit of any third party, sell, resell, license, sublicense, distribute, rent or lease the SaaS Services, or use the SaaS Services and/or the Software to provide service bureau, time-sharing or other computer hosting services to third parties;
use the SaaS Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
use the SaaS Services to store or transmit Malicious Code;
modify or create derivative works based upon the SaaS Services and/or the Software;
remove, modify or obscure any copyright, trademark or other proprietary notices contained in the SaaS Services and/or the Software;
reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software, except and only to the extent such activity is expressly permitted by applicable law without a contractual waiver possibility;
access the SaaS Services or use the Documentation in order to build a similar product or competitive product, (x) permit direct or indirect access to or use of the SaaS Services in a way that circumvents a contractual usage limit; or
access the SaaS Services or use the Documentation for any purpose other than the purposes stipulated in these Terms of Service. Customer will use the SaaS Services only in accordance with applicable laws and government regulations.
Customer will be responsible for all Users' compliance with these Terms of Service.
Network Requirements. Customer will provide all necessary cooperation in relation to the SaaS Services, and will authorize, to the extent not prohibited by applicable laws and regulations, all necessary access to such information as may be required by Exigence or any third party on its behalf in order to render the SaaS Services, including but not limited to security access information and configuration services. Customer undertakes to use all reasonable endeavors, but in any event no less than such endeavors used to protect its own network and systems, to prevent any unauthorized access to, or use of, the SaaS Services and/or the Software and, in the event of any such unauthorized access or use of any password or user id or any other known or suspected breach of security, promptly notify Exigence and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by Customer and/or any User.
Customer will ensure that Customer's network and systems comply with the relevant specifications provided by Exigence from time to time, and be solely responsible for procuring and maintaining network connections and telecommunication links from their systems to the hosting data center(s), and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to their network connections or telecommunication links or caused by the Internet.
Customer will not, and will ensure that none of its personnel will: (a) interfere with or disrupt the integrity or damage the performance of the SaaS Services or any other computer system or network or circumvent or manipulate the operation or functionality of the SaaS Services; or (b) violate the security or integrity of any network, computer or communications system, software application or network or computing device involved in the SaaS Services. Customer will be solely responsible for the acts and omissions of all Users.
4. Orders and Payment.
Fees. Customer will pay all fees specified in a Purchase Order. Except as otherwise specified herein, (i) fees are based on SaaS Services and not actual usage, (ii) payment obligations are noncancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Subscription Term.
Invoicing and Payment. Unless otherwise set forth in a Purchase Order, Exigence will invoice Customer annually in advance for all fees on the Purchase Order effective date. Unless otherwise set forth in a Purchase Order, all invoices are due within 30 days of invoice receipt. All fees are stated in United States Dollars and must be paid by Customer to Exigence in United States Dollars or in New Israeli Shekels. Customer is responsible for providing complete and accurate billing and contact information to Exigence and notifying Exigence of any changes to such information.
Expenses. Customer will reimburse Exigence for its reasonable, out-of-pocket travel and related expenses which have been approved in writing by a duly authorized representative of Customer prior to such expenses having been incurred by Exigence.
Overdue Charges. If any invoiced amount is not received by Exigence by the due date, then without limiting Exigence's rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. The foregoing will not apply if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
Taxes. The fees set forth in a Purchase Order do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Exigence has the legal obligation to pay or collect Taxes for which Customer is responsible hereunder, Exigence will invoice Customer and Customer will pay that amount unless Customer provides Exigence with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Exigence is solely responsible for taxes assessable against Exigence based on its income, property and employees.
5. Proprietary Rights.
Subject to the limited rights expressly granted herein, Customer retains ownership and intellectual property rights in and to the Customer Data. Subject to the limited rights expressly granted herein, Exigence and its licensors retain all ownership and intellectual property rights to the SaaS Services, the Software and anything developed and delivered under these Terms of Service, including without limitation any fix-pack, modification, improvement, update, upgrade, derivative, feedback and/or enhancement related thereto, and any technology, know-how, methodology, algorithm, trade secret or idea associated therewith, including any that is generated by either party in connection herewith, and all intellectual property rights therein. Customer agrees to assign all right, title and interest it may have in the foregoing to Exigence.
As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
Neither party shall disclose any Confidential Information of the other without the Disclosing Party’s written consent unless required to do so by applicable law, stock exchange or listing requirements or regulations, or a governmental authority with competent jurisdiction, in which case the Receiving Party shall provide notice of such compelled disclosure to the Disclosing Party as soon as reasonably possible. Confidential Information hereunder shall include, but not be limited to business and marketing plans, technology and technical information, product plans and designs, and business processes of each party. The confidentiality obligations hereunder shall survive the termination of this Agreement.
7. Term and Termination.
Term. The term of these Terms of Service will begin on the Effective Date and will continue until terminated by either party as outlined in this Section or until all Subscription Terms hereunder have expired or have been terminated, whichever is earlier.
Termination. Either party may terminate these Terms of Service immediately upon a material breach by the other party that, if capable of being cured, has not been cured within thirty (30) days after receipt of notice of such breach.
Suspension for Non-Payment. Exigence reserves the right to suspend delivery of the SaaS Services if Customer fails to timely pay any undisputed amounts due to Exigence under these Terms of Service, but only after Exigence notifies Customer of such failure and such failure continues for fifteen (15) days. Suspension of the SaaS Services will not release Customer of its payment obligations under these Terms of Service. Customer agrees that Exigence will not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to suspension of the SaaS Services resulting from Customer's nonpayment.
Suspension for Ongoing Harm. Exigence reserves the right to suspend delivery of the SaaS Services if Exigence reasonably concludes that Customer and/or any User's use of the SaaS Services is causing immediate and ongoing harm to Exigence or others. In the extraordinary case that Exigence must suspend delivery of the SaaS Services, Exigence will immediately notify Customer of the suspension and the parties will diligently attempt to resolve the issue. Exigence will not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the SaaS Services in accordance with this sub-section (Suspension for Ongoing Harm). Nothing in this sub-section will limit Exigence's rights under sub-section "Effect of Termination" below.
Effect of Termination. Upon termination of these Terms of Service or expiration of a Subscription Term, Exigence will immediately cease providing the SaaS Services and all usage rights granted under these Terms of Service will terminate.
If Exigence terminates these Terms of Service due to a breach by Customer, then Customer will immediately pay to Exigence all amounts then due under these Terms of Service and to become due during the remaining term of these Terms of Service, but for such termination. If Customer terminates these Terms of Service due to a breach by Exigence, then Exigence will immediately repay to Customer all pre-paid amounts for any unperformed SaaS Services scheduled to be delivered after the termination date. In no event will termination relieve Customer of its obligation to pay any fees payable to Exigence for the period prior to the effective date of termination.
Upon request by Customer made within 30 days after the effective date of termination or expiration of these Terms of Service, Exigence will make the Customer Data available to Customer for export or download in according with Exigence practices. After that 30-day period, Exigence will have no obligation to maintain or provide Customer Data, and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control in according with Exigence practices, unless legally prohibited.
Upon termination of these Terms of Service and upon subsequent written request by the disclosing party, the receiving party of tangible Confidential Information will immediately return such information or destroy such information and provide written certification of such destruction, provided that the receiving party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the parties.
Surviving Provisions. All provisions of these Terms of Service which by their nature are intended to survive the termination of these Terms of Service, such as the provisions of Sections 5 (Proprietary Rights), 6 (Confidentiality), 7 (Term and Termination), 9 (Warranties), 10 (Limitations of Liability), 11 (Indemnification), 20 (Governing Law) and 21 (Dispute Resolution) will survive any termination or expiration if these Terms of Service.
8. Personal Data Protection.
The provisions of the (i) Data Protection Addendum which can be found at https://www.exigence.io/dpa-and-ccpa (the "Data Protection Addendum") and relating to the protection of Personal Data (as defined in the GDPR) under the EU General Data Protection Regulation ("GDPR") and (ii) the CCPA Provisions that can be found at https://www.exigence.io/dpa-and-ccpa, shall apply to any Personal Data which may be included in Customer Data. The terms of the Data Protection Addendum are incorporated herein by reference and shall constitute an integral part of these Terms of Service.
Each party represents that it has validly entered into this Agreement and has the legal power to do so. Exigence represents and warrants that it will provide the SaaS Services in a professional manner consistent with general industry standards. For any breach of a warranty by Exigence, Customer's exclusive remedy will be as provided in Section 7 (under subsections Termination and Effect of Termination).
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
EXIGENCE DOES NOT GUARANTEE THAT THE SAAS SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT EXIGENCE WILL CORRECT ALL ERRORS. EXIGENCE EXPRESSLY DISCLAIMS ANY WARRANTY WITH RESPECT TO THE DATA CREATED AS A RESULT OF, OR IN CONNECTION WITH, THE USE OF THE SAAS SERVICES, INCLUDING WITHOUT LIMITATION, ANY MISTAKEN OR NON-OPTIMAL FINANCIAL OR ACTUARIAL CALCULATIONS AND/OR ANALYSIS. CUSTOMER AGREES THAT ANY WORK DONE WITH AND/OR BASED ON THE SAAS SERVICES OR THE DATA CREATED AS A RESULT OF, OR IN CONNECTION WITH, THE USE THEREOF IS DONE ENTIRELY AT ITS OWN RISK.
CUSTOMER ACKNOWLEDGES THAT EXIGENCE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SAAS SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY EXIGENCE (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS OF SERVICE. NEITHER EXIGENCE NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THE OPERATION OF THE SAAS SERVICES WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, NOR WILL EXIGENCE OR ANY OF ITS SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER'S OR ANY USER'S DATA, FILES, OR PROGRAMS. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
10. Limitations of Liability.
IN NO EVENT SHALL EXIGENCE (NOR ANY LICENSOR OR OTHER SUPPLIER OF EXIGENCE) BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, DAMAGES FOR LOST BUSINESS, REVENUES, PROFITS, DATA OR USE OF ANY SERVICE, AND LOSSES INCURRED AS A RESULT OF, OR IN CONNECTION WITH, MISTAKEN OR NON-OPTIMAL FINANCIAL OR ACTUARIAL CALCULATIONS AND/OR ANALYSIS (ALL WHETHER DIRECT OR INDIRECT) INCURRED BY CUSTOMER OR ANY THIRD PARTY IN CONNECTION WITH THESE TERMS OF SERVICE, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR EXIGENCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXIGENCE'S AGGREGATE LIABILITY FOR DAMAGES UNDER THESE TERMS OF SERVICE, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THESE TERMS OF SERVICE DURING THE 12 MONTHS PRECEDING THE DATE THE CLAIM AROSE.
If a third party makes a claim against Exigence that the Customer Data or Customer's use of the SaaS Services in breach of these Terms of Service infringes any patent, copyright or trademark, or misappropriates any trade secret or violates applicable law, Customer will defend Exigence and its directors, officers and employees against the claim at Customer's expense and Customer will pay all losses, damages and expenses (including reasonable attorneys' fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Customer, to the extent arising from the claim.
Exigence will (a) promptly notify the Customer of the claim, (b) give Customer sole control of the defense and settlement of the claim (except that a party may not settle any such claim unless it unconditionally releases the other party of all liability), and (c) provide, at Customer's expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the Customer in the defense and settlement of the claim.
Exclusive Remedy. This Section 11 states Exigence’s sole liability to, and the Customer's exclusive remedy against Exigence for any type of claim described in this Section 11.
Exigence may freely assign any of its rights and obligation under these Terms of Service. Customer may not assign these Terms of Service without the prior written consent of Exigence; provided however, that Customer may assign these Terms of Service to an acquirer of all or substantially all of the business of Customer, whether by merger, asset sale or otherwise. These Terms of Service will be binding upon and inure to the benefit of the parties' successors and permitted assigns. Exigence may employ subcontractors in performing its duties under this Agreement, provided, however, that it will not be relieved of any obligation under this Agreement.
13. Force Majeure.
Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, pandemics, epidemics, communication line failures, and power failures.
No waiver will be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of these Terms of Service will not constitute a waiver of any other or subsequent breach.
If any term of these Terms of Service is held to be invalid or unenforceable, that term will be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of these Terms of Service will remain in full force.
16. Entire Agreement.
These Terms of Service (including all schedules and exhibits) contains the entire agreement between Exigence and Customer and supersedes all previous oral and written communications by the parties, concerning the subject matter of these Terms of Service.
Exigence may include Customer's name and logo in its customer lists (including in social media and in articles and interviews) and on its website and on its marketing materials. Customer agrees that Exigence may present a textual promotion with the Software that may be seen by the Users thereof (e.g. "Powered by Exigence").
Customer have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Exigence's employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
19. No Third Party Beneficiaries.
These Terms of Service is an agreement between the parties, and confers no rights upon either party's employees, agents, contractors, partners of customers or upon any other person or entity.
20. Independent Contractor.
The parties have the status of independent contractors, and nothing in these Terms of Service nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in these Terms of Service, neither party will be responsible for the acts or omissions of the other party or the other party's personnel.
21. Governing Law.
These Terms of Service will be governed by the laws of the State of Israel, excluding its conflict of law principles, and any dispute arising hereunder shall be resolved exclusively in the competent courts of Tel-Aviv, Israel. Notwithstanding the foregoing, Exigence shall be entitled to institute an action in any court of competent jurisdiction to obtain injunctive relief or otherwise protect or enforce its intellectual property rights or interests.
"Customer Data" means all electronic data and information submitted and/or uploaded by Customer for use in connection with the SaaS Services in accordance with the terms and conditions hereof.
"Malicious Code" means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and trojan horses.
"Software" means the software identified in a Purchase Order to which Customer is provided access as part of the SaaS Services, including any updates or new versions of the same edition. A purchase of a different software edition will require the execution of an additional Purchase Order.
"SaaS Services" refer to the specific Exigence's internet-accessible service identified in a Purchase Order that provides use of Exigence's proprietary Software that is hosted by Exigence or its service provider and made available to Customer over a network on a term-use basis.
"Subscription Term" means that period specified in a Purchase Order during which Customer will have on-line access and use of the Software through Exigence's SaaS Services pursuant to a specific Purchase Order.
"User" means an individual who is authorized by Customer to use the SaaS Services. Users may include Customer's employees, consultants, contractors and agents; provided, however, that Users may not include third party consultants, analysts or advisors that are, or are engaged with, competitors of Exigence, except with Exigence's prior written consent.