Terms of Service
WELCOME TO EXCELSA LABS, INC. (“EXCELSA”). PLEASE READ THESE TERMS OF SERVICE (THE “AGREEMENT”) CAREFULLY AS IT GOVERNS YOUR USE OF EXCELSA'S SERVICE (AS DEFINED BELOW) UNLESS YOU AND EXCELSA HAVE EXECUTED A SEPARATE AGREEMENT GOVERNING USE OF THE EXCELSA SERVICE. BY SIGNING UP FOR OR BY USING THE SERVICES (AS DEFINED BELOW), YOU INDICATE THAT YOU UNDERSTAND THIS AGREEMENT AND THAT YOU ACCEPT ALL THE TERMS CONTAINED HEREIN. IF YOU ARE ACCEPTING THE TERMS OF THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY TO THE TERMS OF THIS AGREEMENT, AND IN SUCH EVENT, “YOU” AND “YOUR” WILL REFER TO THAT COMPANY OR OTHER LEGAL ENTITY. THIS AGREEMENT IS EFFECTIVE UPON THE DATE YOU BEGIN ACCESSING THE EXCELSA SERVICE (THE“EFFECTIVE DATE”). YOU AND EXCELSA MAY BE REFERRED TO HEREIN COLLECTIVELY AS THE “PARTIES” OR EACH INDIVIDUALLY AS A “PARTY.”
The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
Excelsa's direct competitors are prohibited from accessing the Services, except with Excelsa's prior written consent. This Agreement was last updated on July 16, 2022.
- “Content” means information obtained by Excelsa from publicly available sources or its third-party content providers and made available to You through the Services or pursuant to an Order Form, as more fully described in the Documentation.
- “Customer Data” means electronic data and information submitted by or for You to the Services, excluding Content and Third Party Services.
- “Documentation” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device list and other similar materials in hard copy or electronic form that describes the Excelsa Service and its associated capabilities and requirements, which may be revised and updated from time to time and made generally available on the Site.
- “Excelsa Service” means the products and services that You purchase or are provided to You free of charge (as applicable) or under a free trial, and made available online by Excelsa. “Excelsa Service” excludes Content and Third Party Services.
- “Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.
- “Site” means Excelsa's website from which the Excelsa Service is made available to customers, including you, accessible at
- “Services” means collectively, the Excelsa Service and the Site.
- “Third Party Services” means compatible third party services, products, technology and content that may be accessed, interacted with, or interfaced with through the use of the Excelsa Service.
2. Access and Use of the Services
- Provision of Access. Subject to your compliance with the terms and conditions of this Agreement, including the restrictions set forth in Section 2(b), Excelsa hereby grants to you a limited, worldwide, non-exclusive, non-transferable (subject to Section 14(g)), non-sublicensable right to use and access the Excelsa Service and Content for your internal business purposes.
- Use Restrictions. You will not use the Excelsa Service or Content in any manner beyond the scope of the rights expressly granted in this Agreement. You will not at any time, directly or indirectly, and will not permit any Person to: (i) modify or create derivative works of the Excelsa Service, in whole or in part; (ii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Excelsa Service, in whole or in part; (iii) sell, resell, rent or lease use of the Excelsa Service to any other Person, or otherwise allow any Person to use the Excelsa Service for any purpose other than for your benefit in accordance with this Agreement; (iv) use the Excelsa Service to store, transmit, upload or post any infringing, libelous or otherwise unlawful or tortious material or any data for which you do not have the necessary consents or rights to store, transmit, upload or post (as applicable) in connection with the Excelsa Service; (v) interfere with, or disrupt the integrity or performance of, the Excelsa Service, or any data or content contained therein or transmitted thereby; (vi) access or search the Excelsa Service (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Excelsa Service features provided by Excelsa for use expressly for such purposes; or (vii) use the Excelsa Service or any other Confidential Information (as defined below) of Excelsa for any commercial or competitive purposes, including to create any product or service that competes with, or is designed to compete with, any of Excelsa's products or services. You shall comply with terms of service of any Third Party Services with which you use the Services or Content. Any use of the Services in breach of the foregoing that in Excelsa's judgment threatens the security, integrity or availability of Excelsa's services, may result in Excelsa's immediate suspension of the Services.
- Authorized Users. Subject to the restrictions set forth herein, you may grant access to the Services to your employees and independent contractors, who may only access and use the Services for the sole purpose of performing their job functions or services (as applicable) for you (“Authorized Users”). You acknowledge and agree that your Authorized Users' use of the Services is subject to this Agreement, and that you are directly responsible to Excelsa for ensuring that your Authorized Users agree to, and comply with, this Agreement.
- Account Registration and Access. If you or your Authorized Users want to use the Services, you will have to create an account (“Account”). You can do this via the Site through our online registration procedures which we may update from time to time. It is important that you and your Authorized Users provide us with accurate, complete and up-to-date information for your Account and you agree to update such information to keep it accurate, complete and up-to-date. If you or your Authorized Users don't, we might have to suspend or terminate your or their Account. You agree that you won't permit any Person other than your Authorized Users to access, use or operate the Excelsa Service. You will use all reasonable means to secure usernames and passwords, hardware and software used to access the Excelsa Service in accordance with customary security protocols, and will promptly notify Excelsa if you know or reasonably suspect that any username and/or password has been compromised. You are responsible for all activities that occur under your or your Authorized Users' Accounts, whether or not you know about them. You represent that you have not and will not misrepresent your identity or otherwise provide any deceptive or misleading profile information or image in the creation of your account with Excelsa to use the Excelsa Service.
- Updates. Excelsa may from time to time develop patches, bug fixes, updates, upgrades and other modifications to the Excelsa Service and may, in its discretion, make them available to you (collectively, “Updates”). You hereby acknowledge that such Updates may be required to use certain features or components of the Excelsa Service, and you hereby agree (i) that you will promptly install any Updates that Excelsa requires or makes available; and (ii) to the automatic installation of the Updates if performed by or on behalf of Excelsa.
- Reservation of Rights. Nothing in this Agreement or the performance thereof will operate to grant you any right, title or interest, whether by implication, estoppel or otherwise, in or to the Excelsa Service or any other products or services offered by Excelsa (or any intellectual property rights in the foregoing), other than as expressly set forth in this Agreement. As between the Parties, Excelsa will exclusively own all right, title and interest in and to the Services (including, without limitation, the Excelsa Service), and any and all improvements, enhancement, modifications or derivative works to the foregoing (and all intellectual property rights in any of the foregoing).
- Free Trial. If you register on the Site for a free trial, Excelsa will make the applicable Service(s) available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period and or the use of trial credits for which you registered to use the applicable Service(s), or (b) the date you purchase such Services, or (c) termination by Excelsa in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
- NOTWITHSTANDING THE “REPRESENTATIONS AND WARRANTIES,” “DISCLAIMERS” AND “EXCELSA INDEMNIFICATION” SECTIONS BELOW, DURING THE FREE TRIAL THE EXCELSA SERVICE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND EXCELSA SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE EXCELSA SERVICE FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE EXCELSA'S LIABILITY WITH RESPECT TO THE EXCELSA SERVICE PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, EXCELSA AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT: (A) YOUR USE OF THE EXCELSA SERVICE DURING THE FREE TRIAL PERIOD WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE EXCELSA SERVICE DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO EXCELSA FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE EXCELSA SERVICE DURING THE FREE TRIAL PERIOD, ANY BREACH OF THIS AGREEMENT AND ANY OF INDEMNIFICATION OBLIGATIONS HEREUNDER.
3. Fees and Payment
- Fees. You will pay Excelsa the non-refundable fees set forth in the applicable fee schedule or the relevant separately executed order form or ordering document (“Order Form”) in accordance with the terms therein and without offset or deduction (“Fees”). You agree that Excelsa may bill your credit card or other payment method for renewals, expenses and any other unpaid fees, as applicable.
- Payments. All payments made under this Agreement to Excelsa will be made in U.S. dollars and will be non-refundable. You hereby authorize Excelsa, through a third-party credit card processor, to charge your credit card or other payment method for the applicable Fees on a recurring basis. The Excelsa Service will only be made available if the agreed upon fees are paid in full, and access to the Excelsa Service may be suspended for the time that any such fees are due and not paid. You may change your payment method information by entering updated information through the user interface of the Service. Unless the Order Form provides otherwise, all Fees and expenses are due within thirty (30) days of the billing date specified in the applicable Order Form. Fees for renewal Subscription Terms are at Excelsa's then-current rates, regardless of any discounted pricing in a prior order Agreement.
- Taxes. You will be responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by you to Excelsa hereunder, other than any taxes imposed on Excelsa's income. Without limiting the foregoing, in the event you are required to deduct or withhold any taxes from the amounts payable to Excelsa hereunder, you shall pay an additional amount, so that Excelsa receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
4. Confidential Information
- Excelsa will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users).
- Any information that one Party provides to the other Party during the Term of this Agreement that is identified at the time of disclosure as confidential or, given the circumstances of disclosure or the nature of the information, reasonably should be considered to be confidential will be “Confidential Information” of the Party disclosing Confidential information (the “Disclosing Party”). For clarity, the Excelsa Service and pricing will be deemed the Confidential Information of Excelsa hereunder.
- The Party receiving Confidential Information (the “Receiving Party”) will maintain the other Party's Confidential Information in strict confidence and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or enforce its rights under this Agreement. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) with respect to Excelsa as the Receiving Party, to its employees, representatives, or contractors who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
- Nothing in this Agreement will prohibit or limit either Party's use of information (i) rightfully known to it prior to receiving it from the Disclosing Party, (ii) independently developed by or for it without use of or access to the other Party's Confidential Information, (iii) permissibly acquired by it from a third party which is not under an obligation of confidence with respect to such information, or (iv) which is or becomes publicly available through no breach of this Agreement.
- The terms and conditions of this Agreement will constitute Confidential Information of each Party, but may be disclosed on a confidential basis to a Party's advisors, attorneys, actual or bona-fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.
- Without limiting Section 14(h), each Party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore, the injured Party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section 4.
6. Intentionally Ommitted
7. Proprietary Rights
- As between you and Excelsa, and except as set forth in Section 7(b), you will own and retain all right, title and interest in and to all Customer Data. You hereby grant Excelsa a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, and modify the Customer Data in connection with the hosting, operation, improvement and provision of the Excelsa Service or any other business purpose during the Term.
- You acknowledge and agree that Excelsa may generate, process and analyze data (including aggregate or anonymized Customer Data and any insights derived therefrom) and other information relating to the provision, use and performance of various aspects of the Excelsa Service and related systems and technologies (collectively, “Aggregate Data”). Excelsa shall own all right, title and interest in and to the Aggregate Data and may use such Aggregate Data for any lawful purpose in connection with its business, including improving or otherwise optimizing the Excelsa Service, provided that Excelsa shall not (i) use any Customer Data in identifiable form or (ii) use any of your other Confidential Information, in each case without your prior written consent.
- You may provide Excelsa with suggestions, comments and feedback with regard to the Excelsa Service (collectively, “Feedback”). You hereby grant Excelsa a perpetual, irrevocable, royalty-free and fully paid-up license to use and exploit all Feedback in connection with Excelsa's business purposes, including, without limitation, the testing, development, maintenance and improvement of the Excelsa Service.
- Nothing in this Agreement shall restrict Excelsa (including any of its employees, representatives, or contractors) from using general ideas, concepts, practices, learning, or know-how obtained in the course of performing the services contemplated hereunder, that are retained in the unaided memory of Excelsa (including any of its employees, representatives, or contractors) following performance of such services.
8. Representations and Warranties
- Each Party hereby represents and warrants to the other Party that: (i) it has the right to enter into this Agreement, and is duly organized, validly existing and in good standing under its jurisdiction of organization and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby constitute a valid and binding agreement of such Party.
- You hereby represent, warrant and covenant to Excelsa that you have obtained and will obtain all necessary consents, permissions and licenses with respect to any and all Customer Data to the extent necessary for you to grant the licenses contemplated by Section 7(a) without violating any third party intellectual property or privacy rights.
- Excelsa hereby represents and warrants to you that: (i) for a period of ninety (90) days from the date of delivery, the Excelsa Service will operate substantially in accordance with the Documentation, provided it is used in accordance with the terms of this Agreement and the Documentation; and (ii) it has sufficient rights to grant all of the rights and licenses expressly granted under this Agreement.
- The warranties contained in Section 8(c) will not apply if: (i) your use of the Excelsa Service is not in accordance with this Agreement or Documentation; (ii) any component of the Excelsa Service has been modified, other than by Excelsa (including any of its employees, representatives or contractors); (iii) you have failed to implement, or to allow Excelsa (including any of its employees, representatives or contractors) to implement, any corrections or modifications to the Excelsa Service made available to you by Excelsa; or (iv) you have combined the Excelsa Service with other software, services, or products that are not provided by Excelsa or not otherwise specified in the Documentation, and, but for such combination, the breach of warranty would have been avoided.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, YOU ACKNOWLEDGE THAT THE EXCELSA SERVICE (INCLUDING WITHOUT LIMITATION, ANY AND ALL THIRD PARTY SOFTWARE, SOURCE CODE OR OTHER TECHNOLOGY LICENSED TO EXCELSA) IS PROVIDED ON AN “AS IS” BASIS, AND AS AVAILABLE BASIS. EXCELSA MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING THE EXCELSA SERVICE OR ANY OTHER SERVICES (INCLUDING WITHOUT LIMITATION ANY AND ALL THIRD PARTY SERVICES THAT MAY BE ACCESSED THROUGH YOUR USE OF THE EXCELSA SERVICE) PROVIDED HEREUNDER. YOU HEREBY ACKNOWLEDGE AND AGREE THAT (I) EXCELSA DOES NOT ITSELF PROVIDE ANY ASPECT OF THE THIRD PARTY SERVICES AND IS NOT RESPONSIBLE FOR ANY COMPATIBILITY ISSUES, ERRORS OR BUGS IN THE EXCELSA SERVICE OR THIRD PARTY SERVICES CAUSED IN WHOLE OR IN PART BY THE THIRD PARTY SERVICES OR ANY UPDATE OR UPGRADE THERETO; AND (II) YOU ARE SOLELY RESPONSIBLE FOR MAINTAINING THE THIRD PARTY SERVICES AND OBTAINING ANY ASSOCIATED LICENSES AND CONSENTS NECESSARY FOR YOU TO UTILIZE THE THIRD PARTY SERVICES IN CONNECTION WITH THE EXCELSA SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCELSA HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, EXCELSA HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE EXCELSA SERVICE WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED. CONTENT AND SERVICES PROVIDED FREE OF CHARGE ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
- Excelsa Indemnification. Subject to Sections 10(b) and 10(e), Excelsa will defend, indemnify and pay all damages finally awarded against you pursuant to a final, valid and binding judgment or order, or a final settlement agreement with respect to any claim, suit or proceeding brought by a third party against you arising from infringement of third party intellectual property rights by the Excelsa Service.
- Exclusions. Excelsa's obligations under Section 10(a) will not apply if the underlying third party claim arises from or as a result of: (i) your breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Data; (iii) modifications to the Excelsa Service by anyone other than Excelsa; or (iv) combinations of the Excelsa Service with software, data or materials not provided by Excelsa.
- IP Remedies. If Excelsa reasonably believes the Excelsa Service (or any component thereof) could infringe any third party's intellectual property rights, Excelsa may, at its sole option and expense, use commercially reasonable efforts to: (i) procure the right for you to continue using the Excelsa Service (or any infringing component thereof) to make it non-infringing without materially reducing its functionality; or (ii) replace the Excelsa Service (or any infringing component thereof) with a non-infringing alternative that is functionally equivalent in all material respects. If the foregoing remedies are not available to Excelsa on commercially reasonable terms, then Excelsa may suspend or terminate your use of the Excelsa Service upon notice to you. In the event of any such termination, Excelsa will refund to you a pro-rata portion of the fees that have been paid for the unexpired portion (if any). The rights and remedies set forth in this Section 10 shall constitute your sole and exclusive remedy for any intellectual property infringement by the Excelsa Service.
- Your Indemnification. Subject to Section 10(e), you will defend, indemnify and pay all damages finally awarded against Excelsa pursuant to a final, valid and binding judgment or order or a final settlement agreement with respect to any claim, suit or proceeding brought by a third party against Excelsa arising from (i) any Customer Data, including, without limitation, (A) any claim that the Customer Data infringes, misappropriates or otherwise violates any third party intellectual property rights, and (B) any claim that the use, provision, transmission, display or storage of Customer Data violates any applicable law, rule or regulation; (ii) any breach by you of the terms of this Agreement; (iii) your use of the Excelsa Service in a manner that is inconsistent with the Documentation; and (iv) your negligence or willful misconduct.
- Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly notify the other Party (the “Indemnifying Party”) of any and all such claims and will reasonably cooperate with the Indemnifying Party with the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any claim without the Indemnified Party's prior written approval unless the settlement unconditionally releases the Indemnified Party from all liability, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party's business, products or services). The Indemnified Party may participate in the defense or settlement of any such claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
11. LIMITATIONS OF LIABILITY
- Exclusion of Damages. EXCEPT FOR LIABILITY ARISING FROM YOUR BREACH OF SECTION 2 (ACCESS AND USE OF THE SERVICES), A BREACH OF YOUR CONFIDENTIALITY OBLIGATIONS OR YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY, ITS EMPLOYEES, REPRESENTATIVES, OR CONTRACTORS OR ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF THE EXCELSA SERVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
- Total Liability. IN NO EVENT WILL EXCELSA'S TOTAL LIABILITY TO YOU OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF THE EXCELSA SERVICE EXCEED THE FEES ACTUALLY PAID BY YOU TO EXCELSA IN THE SIX (6) MONTH PERIOD PRECEDING THE CLAIM OR ACTION GIVING RISE TO SUCH LIABILITY, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
- Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 11 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN YOU AND EXCELSA, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
12. Term and Termination
- Term. Unless otherwise set forth in the relevant Order Form, the initial term of this Agreement begins on the Effective Date and expires at the end of one (1) year (the “Initial Term”). Following the Initial Term, this Agreement will automatically renew for additional periods of one (1) year (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either party provides the other with at least fifteen (15) days' written notice of its intent not to renew this Agreement prior to the end of the then-current Term.
- Termination. You may terminate this Agreement at any time upon sixty (60) days' notice to Excelsa by ceasing use of the Excelsa Service and by cancelling your subscription through the Site; provided, however, that in the event you terminate this Agreement for convenience, you will not be entitled to a refund for any fees already paid to Excelsa. Without limiting any right or remedy available to either Party, either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach. Notwithstanding the foregoing, Excelsa has the right to suspend the rights granted to you pursuant to Section 2(a) or terminate this Agreement if it determines that you have violated any of the restrictions in Section 2(b) or Section 2(d).
- Survival. This Section 12(c) and Sections 3, 4, 8, 9, 10, 11, 12(d) and 14 survive any termination or expiration of this Agreement.
- Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 2(a) will terminate automatically; and (ii) you will return or destroy, at Excelsa's sole option, all Excelsa Confidential Information in your possession or control, including permanent removal of such Excelsa Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in your possession or under your control, and at Excelsa's request, you will certify in writing to Excelsa your compliance with the provisions of this Section 12(d).
13. Intentionally Ommitted
- Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, if any, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
- Notices. Except as otherwise expressly permitted herein, all notices required or permitted to be given hereunder shall be in writing and shall be deemed effective when personally delivered, when received by telegraphic or other electronic means (with no bounceback message received), when delivered by overnight courier or five (5) days after being deposited in the United States mail, with postage prepaid thereon, certified or registered mail, return receipt requested, addressed, as applicable, to Excelsa Labs, Inc., 50 W Broadway, Suite 333, PMB 76690, Salt Lake City, UT 84101 or firstname.lastname@example.org or to you based on the contact information you provided through the Site. If your contact information changes during the Term, you are responsible for updating such information through your account on the Site.
- Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the law of the State of Utah, without regard to any conflict of law rules of such state. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The Parties hereby acknowledge and agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement shall be brought in the state or federal courts for District of Utah and each of the Parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any Party anywhere in the world, whether within or without the jurisdiction of any such court, and each Party hereby irrevocably consents to service of process in connection with any such suit, action or proceeding by registered mail to such Party at the applicable address set forth in Section 14(b).
- Arbitration. At Company's sole discretion, it may require you to submit any disputes arising from this Agreement, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying the laws of the state of Utah.
- Assignment. Neither Party may assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without the other Party's express prior consent. Notwithstanding the foregoing, Excelsa may assign this Agreement in case of merger, acquisition or sale by Excelsa of all or substantially all of the assets to which this Agreement relates. Any attempt to assign or transfer this Agreement, in contravention of the foregoing will be null and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each Party's permitted successors and assigns.
- Equitable Relief. Each Party hereby acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations hereunder would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
- Force Majeure. Neither Party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, communications failure or degradation, material changes in law, war, terrorism, riot, or acts of God.
- Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
- Export Compliance. The Services, Content, other Excelsa technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. You and Excelsa each represent that it is not on any U.S. government denied-party list. You will not permit any Authorized User to access or use any Exelsa Service or Content in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Syria or Crimea) or in violation of any U.S. export law or regulation.
- Anti-Corruption. Neither Party has received been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.