IMPORTANT-READ CAREFULLY: YOUR USE OF THE XACTIUM PRODUCTS AND ASSOCIATED PRODUCTS IS CONDITIONAL UPON YOUR ACCEPTANCE OF THESE TERMS. BY CLICKING THE "I AGREE" BUTTON OR BY USING THE XACTIUM PRODUCTS YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. This is a legal agreement ("Agreement") between You and Xactium Limited. ("Xactium"), for use of the Xactium products which You selected or initiated ("Products"). "You" refers to the individual who registered and/or provided Xactium his or her payment details for the Products or, if the Products are being purchased on behalf of an entity by an individual authorized to purchase the Products on behalf of such entity, then "You" refers to such entity. If You do not agree with the terms of this Agreement, click the "Cancel" button and do not use the Products. Any software associated with the Products is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
1. PRODUCTS. Xactium will provide the Products in accordance with this Agreement. Xactium may at its sole discretion modify the features of the Products from time to time without prior notice.
2. CHARGES. You agree that Xactium may utilize the payment method selected by You and approved by Xactium ("Your Account") to collect all amounts due and owing for the Products, including subscription fees or any other fee or charge associated with Your use of the Products. Xactium may change prices at any time without prior notice. You agree that in the event Xactium is unable to collect the fees owed to Xactium for the Products through Your Account, Xactium may take any other steps it deems necessary to collect such fees from You and that You will be responsible for all costs and expenses incurred by Xactium in connection with such collection activity, including collection fees, court costs and solicitors fees. You further agree that Xactium may collect interest at the lesser of 1.5% per month or the highest amount permitted by applicable UK law on any amounts not paid when due.
3. NO COMMERCIAL USE. Other than using the Products for Yourself and Your Company, and as permitted under the terms and conditions of this Agreement or other written agreements between You and Xactium, You may not resell, distribute, make any commercial use of, use on a timeshare or service bureau basis, or use to operate a Web-site or otherwise generate income from the Products.
4. PROPRIETARY RIGHTS. Xactium and/or its suppliers, as applicable, retain ownership of all proprietary rights in the Products and in all trade names, trademarks and service marks associated or displayed with the Products. You will not remove, deface or obscure any of Xactium's or its suppliers' copyright or trademark notices and/or legends or other proprietary notices on, incorporated therein, or associated with the Products. You may not reverse engineer, reverse compile or otherwise reduce to human readable form any software associated with the Products.
5. TERMINATION. You may terminate this Agreement by providing written notice to Xactium via e-mail to info@xactium.com. Such termination will be effective on the later of: (a) the last day of the term (if your Agreement has a fixed term), or (b) thirty (30) days after Xactium's receipt of your written termination notice. If You fail to comply with any provision of this Agreement, Xactium may terminate this Agreement immediately without notice. Sections 2 through 9, inclusive, shall survive any termination of this Agreement. Upon any termination of this Agreement, You must cease any further use of the Products and destroy any copies of associated software within Your possession and control.
6. NO WARRANTIES. YOU UNDERSTAND AND AGREE THAT THE PRODUCTS ARE PROVIDED "AS IS" AND XACTIUM, ITS AFFILIATES, SUPPLIERS AND RESELLERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. XACTIUM, ITS AFFILIATES, SUPPLIERS AND RESELLERS MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCTS, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE PRODUCTS, REGARDING ANY GOODS OR PRODUCTS PURCHASED OR OBTAINED THROUGH THE PRODUCTS, REGARDING ANY TRANSACTIONS ENTERED INTO THROUGH THE PRODUCTS OR THAT THE PRODUCTS WILL MEET ANY USER'S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE PRODUCTS IS AT YOUR SOLE RISK. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PRODUCTS IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE PRODUCTS. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE PRODUCTS REMAINS WITH YOU. You agree to indemnify, defend and hold harmless Xactium, its affiliates, officers, directors, employees, consultants, agents, suppliers and Resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees) arising from Your use of the Products, Your violation of this Agreement or the infringement or violation by You or any other user of Your account, of any intellectual property or other right of any person or entity. Without limiting the foregoing, the Products are not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems. Without limiting the generality of the foregoing, Xactium, its affiliates, suppliers and Resellers specifically disclaim any express or implied warranty of fitness for such purposes.
7. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL XACTIUM OR ITS AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCTS OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT PRODUCTS, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF XACTIUM, ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, XACTIUM'S, ITS AFFILIATES', SUPPLIERS' AND RESELLERS' MAXIMUM CUMULATIVE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE PRODUCTS (IF ANY) IN THE PREVIOUS 12 MONTHS. Because some jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to You.
8. MISCELLANEOUS
8.1 The Terms of Agreement and the relationship between user and Xactium shall be treated as if entered into and executed in England and shall be governed and construed in accordance with English Law, without regard to conflict of law principles.
8.2 Waiver and Severability. Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
8.3 General Provisions. This Agreement embodies the entire understanding and agreement between the parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the parties respecting such subject matter. Xactium may change the terms of this Agreement at any time by posting modified terms on its website. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes. All notices or other correspondence to Xactium under this Agreement must be sent to the address as provided by Xactium for such purpose. Any and all rights and remedies of Xactium upon Your breach or other default under this Agreement will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity on Xactium, and the exercise of any one remedy will not preclude the exercise of any other. The captions and headings appearing in this Agreement are for reference only and will not be considered in construing this Agreement.
