Exonar Trial Service Terms and Conditions

1. INTERPRETATION

1.1 Definitions.  In these Conditions, the following definitions apply.

Users: employees, agents and independent contractors of the Customer who use the Services and the Documentation.

Business Day: a day  other  than a  Saturday,  Sunday or public  holiday in England  when banks in London are open for business.

Conditions: these  terms and  conditions as  amended from time  to time in accordance  with condition 6.1

Confidential Information: information of commercial value, in whatever form or medium, disclosed by the party to the  other party, including commercial or technical know-how, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing  and marketing and, for clarity, including (in the case of Exonar’s information) information relating to the Software or any of its constituent parts, the source code relating to the Software.

Contract: the  contract  between Exonar  and the Customer  for the provision of  the Services in accordance with these Conditions.

Customer: the person or firm who purchases the Services from Exonar.

Customer Data: the  data indexed by  the Software as  instructed by the  Customer, Users, or Exonar  on the Customer’s behalf for  the purpose of using the Services  or facilitating the Customer’s use of the Services.

Documentation: the  document  made available  to the Customer  by Exonar online via email  or such other web address notified by Exonar to  the Customer from time to time which sets out a  description of the Services and the user instructions  for the Services.

Effective Date: the  date on  which Exonar  grants the Customer  access to the Software  and Services confirmed in writing by Exonar.

Exonar: as defined in condition 2.1

Maximum Data: 200 Gigabytes of files stored on file shares or such other amount as Exonar and the Customer shall agree in writing.

Services: the  subscription  services provided  by Exonar to the Customer  under the Contract via [ exonar.com  or any other website notified to the  Customer by Exonar from time to time, as more particularly described in the Documentation.

Software: the Virtual  Machine image  file allowing the  Customer to access the Services and the online software applications provided by Exonar as part of the Services.

Subscription Term: the period of 14 days from the Effective Date

Third Party Provider: A third party supplier or sub-contractor providing hosting services to Exonar.

Virus: any  thing  or device  (including any  software, code, file  or programme) which may: prevent,  impair or otherwise adversely affect  the operation of any computer software, hardware  or network, any telecommunications service, equipment  or network or any other service or device; prevent, impair  or otherwise adversely affect access to or the operation of any  programme or data, including the reliability of any programme or data (whether  by re- arranging, altering or erasing the programme or data in whole or part or otherwise);  or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

1.2      Construction. In these Conditions, the following rules apply :

  1. a person includes a natural  person, corporate or unincorporated body (whether ornot having separate legal personality); 
  2. a reference to a party includes its successors or permitted assigns;
  3. a  reference  to a statute  or statutory provision  is a reference to such  statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
  4. any phrase introduced by the terms including, include, in particular or any similar expression  shall be construed as illustrative  and shall not limit the sense of the words preceding those terms; and
  5. a reference to writing or written includes faxes and e-mails.
  1.   INFORMATION ABOUT EXONAR

2.1 Exonar is a company registered in England and Wales. Our company registration number is 06439969 and our registered office is at 14 West Mills, Newbury, Berkshire, RG14 5HG.

2.2 Exonar’s     customer support     team may be contacted     by email at support@exonar.com.

  1. SERVICES

3.1 Subject to the restrictions set out in this  condition 3 and the other terms and conditions of  these Conditions, Exonar hereby grants to the Customer  a non-exclusive, non-transferable right to use the Software,  the Services and the Documentation during the Subscription Term  for any purpose related to the Customer’s business provided that  the Customer shall not use the Software, Documentation or Services to  provide services to third parties

3.2 The Customer’s use of the Service shall be limited such that the Software shall not ingest more than the Maximum Data.

3.3 The Customer shall not access, store, distribute  or transmit any Viruses, or any material during the course of its use of the Services that:

(a) is  unlawful,  harmful, threatening,  defamatory, obscene, infringing,  harassing or racially or ethnically offensive;

(b) facilitates illegal activity;

(c) depicts sexually explicit images;

(d) promotes unlawful violence;

(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

(f) in  a manner  that is otherwise  illegal or causes damage  or injury to any person or property;

and  Exonar  reserves  the right,  without liability  or prejudice to its  other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this condition.

3.4 The Customer shall not:

(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

(i) and  except to  the extent expressly  permitted under these Conditions, attempt  to copy, modify, duplicate, create derivative  works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of  the Software and/or Documentation (as applicable) in any form or media or by any means; or

(ii) attempt  to reverse compile,  disassemble, reverse engineer  or otherwise reduce to human-perceivable form all or any part of the Software; or

(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

(c) use the Services and/or Documentation to provide services to third parties; or

(d) licence, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially  exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or

(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation,  other than as provided under this condition.

3.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or  use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Exonar.

3.6 The rights provided under this condition  are granted to the Customer only, and shall  not be considered granted to any subsidiary or  holding company of the Customer unless Exonar agrees otherwise in writing.

  1. AVAILABLITY

4.1 Exonar  shall, during  the Subscription  Term, provide the  Services and make available  the Documentation to the Customer on and subject to the terms of these Conditions however Exonar  makes no warranty or commitment that the Services will be available at any particular times.

4.2 Exonar and its sub-contractors and sub-suppliers reserve the right to perform maintenance on  the Services at any time without notice and the Customer acknowledges that the Services may be unavailable in the event of:

(a) Domain name system problems;

(b) Issues with FTP, POP, IMAP or SMTP customer access;

(c) Acts or omissions by the Customer or Users causing downtime;

(d) Any  negligence,  wilful misconduct  or use of the Services  in breach of the Third Party Provider acceptable use policy;

(e) Issues with User’s web browsers,  DNS, or other caching that might make it appear the Services are unavailable.

  1. SUPPORT

5.1 Exonar shall provide access to help desk technicians sufficiently qualified and experienced to identify and resolve most support issues relating to the Services.  Such support may be accessed by means of the following email address support@exonar.com.

5.2 Exonar  shall endeavour  to respond to a  support request on  the Business Day following receipt of the support request but makes no warranties or commitments in this regard.

  1. CUSTOMER DATA

6.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

6.2 Exonar shall retain the Customer Data for a period of 30 days from the date on which the Software ingests the Customer Data after which period it shall be deleted.   The Customer agrees and accepts that Exonar shall not be responsible for any loss, destruction,alteration or disclosure of Customer Data held by Exonar  as this will be a copy of data already held by the Customer.

6.3 Exonar  shall, in providing  the Services, comply with  its Privacy and Security Policy relating  to the privacy and security of the Customer  Data available at exonar.com/privacyandsecurity or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by Exonar in its sole discretion.

6.4 If  Exonar processes  any personal data  on the Customer’s behalf  when performing its obligations  under these Conditions, the parties  record their intention that the Customer shall be the data controller and Exonar shall be a data processor and in any such case: (a) the  Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Exonar so that Exonar may lawfully use, process and  transfer the personal data in accordance with these Conditions on the Customer’s behalf;

(b) the  Customer shall  ensure that the  relevant third parties  have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;

(c) Exonar  shall process  the personal data  only in accordance with  the terms of the Documentation and any lawful instructions reasonably given by the Customer from time to time; and

(d) each  party shall  take appropriate  technical and organisational  measures against unauthorised or  unlawful processing of the personal  data or its accidental loss, destruction or damage however Exonar shall not be liable for a Third Party Provider failure. 6.5 Exonar shall be entitled to collect and retain information regarding the Customer’s use of the Service in order to improve the Service and for marketing purposes and the Customer is deemed to consent to Exonar’s collection of this information.

6.6 Exonar  assigns to the  Customer, with full  title guarantee and free  from all third party rights, the copyright in the reports and documents generated through the Customer’s use of the Services.

  1. THIRD PARTY PROVIDERS

7.1 The Customer acknowledges that Exonar uses the Third Party Provider in order to provide the Services.The following provisions relate only to the Third Party Provider:

(a) The Customer shall indemnify Exonar against any additional charges it is required to pay to the Third Party Provider due to problems caused by the Customer (including but  not limited to deletion of necessary operating system files, accidental or intentional infection by a Virus); 

(b) The  Customer agrees  to fully indemnify  and keep Exonar indemnified  against all actions, demands, costs  (on a full indemnity basis), losses,  penalties, damages, l liability, claims and expenses (including but  not limited to legal fees) whatsoever incurred by the Third Party Provider (and recharged to Exonar) arising out of any of the following: (i) The  Customer’s breach of this Contract or its negligence, or other act, omission or default;

(ii) The operation or breakdown of any equipment or software  owned or used by the Customer;

(iii) The Customer’s misuse of the Services;

(iv) The Customer infringing third party intellectual property rights.

(c) Exonar shall have no liability to the Customer for any loss arising from any material, data or instructions supplied  whether digitally or otherwise by the Customer or on its behalf which is incomplete, inaccurate, illegible, out of sequence  or in the wrong form or arising from late arrival or non-arrival or any other fault by the Customer of on its behalf. No  action, claim or demand arising out of or in connection with the Contract may be brought by the Customer against Exonar more than one year after the cause of action has occurred.

(d) Exonar is not responsible for any delay, malfunction, non-performance and/or other degradation of performance of any of the services, hardware or software caused by or  resulting from any alteration, modification and/or amendments due to changes and specifications requested or implemented by the Customer whether or not beyond those already supplied.

7.2 The Customer acknowledges that Exonar shall not be liable to the Customer for a breach of this Contract where such breach was caused by the Third Party Provider.

  1. EXONAR’S OBLIGATIONS

8.1 The Service is provided on an ‘as-seen’ basis and accordingly Exonar makes no warranties, representations  or other commitments in connection with the performance of the Services.   

8.2 In addition, Exonar:

(a) does  not warrant  that the Customer’s  use of the Services will  be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and

(b) is  not responsible  for any delays, delivery  failures, or any other loss  or damage resulting from the transfer  of data over communications networks and  facilities, including the internet, and the  Customer acknowledges that the Services and Documentation  may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

8.3 These  Conditions shall  not prevent Exonar  from entering into similar  agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these Conditions.

8.4 Exonar  warrants that  it has and will  maintain all necessary  licences, consents, and permissions necessary for the performance of its obligations under these Conditions.

  1. CUSTOMER’S OBLIGATIONS

9.1 The Customer shall:

(a) provide Exonar with:

(i) all necessary co-operation in relation to the Contract; and

(ii) all necessary access to such information as may be required by Exonar;

in  order  to provide  the Services,  including but not  limited to Customer Data, security access information and configuration services;

(b) comply  with the laws  of the United Kingdom  and all other applicable  laws and regulations with respect  to the use of the Services and its  activities under the Contract;

(c) carry out all other Customer responsibilities set out in  these Conditions in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance  as agreed by the parties, Exonar may adjust any agreed timetable or delivery schedule as reasonably necessary;

(d) ensure  that the Users  use the Services and  the Documentation in accordance  with these Conditions and shall be responsible for any User’s breach of these Conditions; (e) obtain   and shall maintain all necessary licences, consents, and permissions necessary for Exonar, its contractors and agents to perform their obligations under the Contract, including without limitation the Services;

(f) ensure  that its network  and systems comply  with the relevant specifications provided by Exonar from time to time; 

(g) ensure  that it is  authorised to  use the Services  within the network  which the Services is to access the Customer Data; and

(h) be  solely responsible  for procuring and maintaining  its network connections and telecommunications  links from its systems to Exonar’s data centres,  and all problems, conditions, delays, delivery failures and all other  loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.

  1. CHARGES AND PAYMENT

10.1 The Services are provided on a free trial basis however if the parties agree to increase the amount of the Maximum Data, Exonar shall charge the Customer, and the Customer shall pay, the agreed charges in accordance with Exonar’s stipulated payment terms.

10.2 If  Exonar has  not received  payment within  10 days after the  due date, and withoutprejudice to any other rights and remedies of Exonar, interest shall accrue on a daily basis on  such due amounts at an annual rate equal to 4% over the then current base lending rate of Barclays Bank Plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

10.3 All amounts and fees payable under the Contract are exclusive of value added tax, which shall be added to Exonar’s invoice(s) at the appropriate rate.

  1. EXONAR PROPRIETARY RIGHTS

11.1 The  Customer acknowledges  and agrees that Exonar  and/or its licensors own  all intellectual property rights in the Software,  the Services and the Documentation. Except as expressly  stated herein, these Conditions do not grant the Customer  any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software, the Services or the Documentation.

11.2 Exonar confirms   that it has all the   rights in relation to the   Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Contract.

  1. CONFIDENTIALITY

12.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Contract.  A party’s Confidential Information shall not be deemed to include information that:

(a) is  or becomes  publicly known  other than through  any act or omission  of the receiving party;

(b) was in the other party’s lawful possession before the disclosure;

(c) is  lawfully  disclosed to  the receiving party  by a third party without  restriction on disclosure;

(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or

(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

12.2 Each  party shall  hold the other’s  Confidential Information  in confidence and, unless required  by law, not make the other’s Confidential  Information available to any third party, or use  the other’s Confidential Information for any purpose  other than the implementation of the Contract.

12.3 Each  party shall  take reasonable  steps to ensure the  security of the other’s Confidential Information  to which it has access and shall take all reasonable  steps to ensure it is not disclosed or distributed by its employees or agents in violation of these Conditions. Comment

12.4 Neither  party shall be  responsible for any  loss, destruction, alteration  or disclosure of Confidential Information caused by any third party.

12.5 The Customer acknowledges that details of the  Software constitute Exonar’s Confidential Information.Exonar  acknowledges that the Customer Data constitutes the Customer’s Confidential Information.

12.6 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be  unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

12.7 The  above provisions  of this condition 12  shall survive termination  of the Contract, however arising.

  1. LIMITATION OF LIABILITY

13.1 This condition 13 sets out the entire financial liability of Exonar (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:

(a) arising under or in connection with the Contract;

(b) in respect of any use made by the Customer of the Services and Documentation or any part of them; and

(c) in  respect of  any representation,  statement or tortious  act or omission (including negligence) arising under or in connection with the Contract.

13.2 Except as expressly and specifically provided in these Conditions:

(a) the  Customer assumes  sole responsibility  for results obtained  from the use of the Services  and the Documentation by the Customer,  and for conclusions drawn from such use.  Exonar shall have no liability for any damage  caused by errors or omissions in any information,  instructions or scripts provided to Exonar by theCustomer  in connection with the Services, or any actions taken by Exonar  at the Customer’s direction;

(b) all   warranties,   representations,   conditions and all   other terms of any   kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract; and

(c) the  Services and  the Documentation  are provided to the  Customer on an “as is” basis.

13.3 Nothing in these Conditions excludes the liability of Exonar:

(a) for death or personal injury caused by Exonar’s negligence; or

(b) for fraud or fraudulent misrepresentation. 

13.4 Subject to condition 13.2 and condition 13.3:

(a) Exonar  shall not be  liable whether in  tort (including for  negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits,  loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or  consequential loss, costs, damages, charges or expenses however arising under the Contract; and 

(b) Exonar’s total aggregate liability in contract, tort (including negligence or breach of statutory  duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total fees paid by the Customer to Exonar under the Contract.

  1. TERM AND TERMINATION

14.1 The  Contract shall,  unless otherwise terminated  as provided in this condition 14, commence on the Effective Date and shall continue for the Subscription Term after which period it shall terminate.    

14.2 Without  affecting any  other right or  remedy available to  it, either party may  terminate the Contract with immediate effect by giving written notice to the other party.

14.3 On termination of the Contract for any reason:

(a) all licences granted under these Conditions shall immediately terminate; 

(b) each  party shall  return and make  no further use of  any equipment, property, Documentation  and other items (and all copies of them)  belonging to the other party;

(c) Exonar  may destroy  or otherwise dispose  of any of the Customer  Data in its possession; and

(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the  date of termination, including the right to claim damages in respect of any breach of  the agreement which existed at or before the date of termination shallnot be affected or prejudiced.

  1. FORCE MAJEURE

Exonar shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including,  without limitation, strikes, lock- outs or other industrial disputes (whether involving the workforce of Exonar or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion,  malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Exonar or sub-contractors, provided that the Customer is notified of such an  event and its expected duration.

  1. GENERAL

16.1 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

16.2 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

16.3 Rights  and Remedies. Except  as expressly  provided in these  Conditions, the rights  and remedies provided under  this agreement are in addition  to, and not exclusive of, any rights or remedies provided by law.

16.4 Severance. If any provision (or part of a provision) of  the Contract is found by any court or administrative  body of competent jurisdiction to be invalid, unenforceable  or illegal, the other provisions shall remain in force.

16.5 If  any invalid,  unenforceable or  illegal provision would  be valid, enforceable or  legal if some part of it were  deleted, the provision shall apply  with whatever modification is necessary to give effect to the commercial intention of the parties.

16.6 Entire  Agreement. The  Contract,  and any documents  referred to in it,  constitutes the whole   agreement between the   parties and supersede any   previous arrangement, understanding or agreement between them relating to the subject matter they cover.

16.7 Each of the parties acknowledges and agrees that in entering into the Contract it does not rely  on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to  the subject matter of the Contract, other than as expressly set out in this agreement.

16.8 No  Partnership  or Agency. Nothing  in the Contract  is intended to or  shall operate to create a partnership between the parties, or authorise either party to act as agent for the other,  and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the  making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

16.9 Third Party Rights. The Contract does not confer any rights on any person or party (other than  the parties to the Contract and, where applicable, their successors and  permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

16.10 Notices.

(a) Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as  that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, or e-mail. 

(b) A  notice or  other communication  shall be deemed to have  been received: if delivered personally, when left at the address referred to in clause 16.10 if sent by pre-paid  first class post or other next working day delivery service, at 9.00 am on the second Business Day after  posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed;  or, if sent by e-mail, one Business Day after transmission. 

(c) The  provisions  of this clause  shall not apply to  the service of any proceedings  or other documents in any legal action.

16.11 Governing  law.   The  Contract  and any dispute  or claim arising out  of or in connection with  it or its subject matter or  formation (including non-contractual  disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

16.12 Jurisdiction.   Each  party irrevocably  agrees that the courts  of England and Wales shall have  exclusive jurisdiction to settle any  dispute or claim arising out of or in  connection with the Contract or its subject  matter or formation (including non-contractual  disputes or claims).