1. Use of the Services. You may only view, download, print one copy of the materials from, and use the Services subject to the following conditions: (a) the materials may be used solely for Your personal, non-commercial, and informational purposes; and (b) You may not modify or remove any copyright and other proprietary notices contained in the materials on any copies of the materials. Any use of the Services not expressly granted herein is prohibited. You may not (a) reproduce, republish, publicly display, perform, distribute, exploit, or otherwise use the materials or the Services for any public or commercial purpose or prepare any modification or prepare derivative works based on the contents from the Services; (b) propagate any virus, worms, trojan horses, or other programming routine intended to damage any system or data; (c) access the Services for the purpose of building a competitive product or service or copying its features or user interface; or (d) use the Services, or permit it to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without xMatters’ prior written consent. In addition to this Agreement, You may also be subject to any additional terms applicable to a particular Service, which will be presented to You through the use of such Service. You also agree that You will not use the Services for any unlawful purposes.
2. Fees. The Services are generally free. In the event that is not the case, You will be expressly presented with the applicable fees and the right to expressly accept the fees prior to Your use of the applicable Service (“Fees”). Fees are non-refundable. Any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including sales, use, or withholding taxes (“Taxes”) related to the Services shall be borne by You.
3. Ownership; Copyright. The underlying software, algorithms (and the output of the algorithms and the Services), materials on the Site, and other materials accessed through the use of the Services are the exclusive property of xMatters, copyrighted by xMatters, and are protected by US Copyright Laws and international treaties. xMatters reserves all rights in the Services and its content, not expressly granted herein.
4. Trademarks. xMatters is a service mark and trademark of xMatters. Other marks, graphics, and logos used in the provision of the Services are xMatters’ service marks, trademarks, and trade dress (“Marks”) and are the sole and exclusive property of xMatters. xMatters’ Mark’s may not be used in any manner by You.
5. Postings and Feedback. If You submit any postings, feedback, ideas, or the like (“Information”) through the use of the Services, You acknowledge and agree that: (a) You have the right to provide the Information free of any restriction, (b) the Information is true and accurate, and (c) upon submission, the Information then becomes the property of xMatters without any obligation of xMatters to You of any kind, and xMatters may use the Information in any manner without any compensation or reimbursement of any kind from xMatters.
xMatters has the right but not the obligation to: (a) Remove or refuse to post any Information for any reason or no reason, in its sole discretion, including without limitation any violation of this Agreement; (b) Disclose Your identity to any third party who claims that material posted by You violates their rights, including their intellectual property rights or their right to privacy; and (c) Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Site.
Without limiting the foregoing, xMatters has the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting any Information on or through the Site. You agree to waive and hold xMatters harmless from any claims resulting from any action taken by xMatters during or as a result of its investigations and from any actions taken as a consequence of investigations by either xMatters or law enforcement authorities.
In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, xMatters has adopted a policy of terminating, in appropriate circumstances, and at xMatters’ sole discretion, subscribers or account holders who are deemed to be repeat infringers. xMatters may also at its sole discretion limit access to the Services or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If You believe that anything on the Services infringes upon any copyright that You own or control, You may file a notification with xMatters’ Designated Agent as set forth below:
Designated Agent: Legal Department
Address of Designated Agent: 12647 Alcosta Blvd., Suite 425, San Ramon, CA 94583
Email Address of Designated Agent: email@example.com
Phone number of Designated Agent: +1 877 -XMATTRS
PLEASE SEE 17 U.S.C. § 512(C)(3) FOR THE REQUIREMENTS OF A PROPER NOTIFICATION. IF YOU KNOWINGLY MISREPRESENT IN YOUR NOTIFICATION THAT THE MATERIAL OR ACTIVITY IS INFRINGING, YOU MAY BE LIABLE FOR ANY DAMAGES, INCLUDING COSTS AND ATTORNEYS’ FEES, INCURRED BY XMATTERS OR THE ALLEGED INFRINGER AS THE RESULT OF XMATTERS RELYING UPON SUCH MISREPRESENTATION IN REMOVING OR DISABLING ACCESS TO THE MATERIAL OR ACTIVITY CLAIMED TO BE INFRINGING.
7. Links. The Services may contain links to other websites. Any such links do not represent an endorsement, sponsorship, or approval of the material on and/or generally of such website.
8. DISCLAIMER AND LIMITATIONS. THE MATERIALS ON THE SITE, AND INFORMATION PRESENTED BY A THIRD-PARTY, AND THE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANY THIRD-PARTY RIGHTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, XMATTERS DISCLAIMS ANY AND ALL LIABILITY FROM ANY INACCURACIES RELATED TO THE SERVICES, THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, AND/OR THAT THE RESULTS OBTAINED FROM THE USE OF THE SERVICES WILL BE COMPLETE, ACCURATE, AND/OR RELIABLE. XMATTERS DOES NOT REVIEW ANY INFORMATION POSTED ON THE SITE AND/OR THROUGH THE USE OF THE SERVICES AND IS NOT RESPONSIBLE FOR ANY SUCH INFORMATION. XMATTERS CAN NEITHER REVIEW ANY AND/OR ALL INFORMATION BEFORE IT IS POSTED ON THE SITE NOR ENSURE PROMPT REMOVAL OF OBJECTIONABLE MATERIALS AFTER THEY HAS BEEN POSTED ON THE SITE AND DISCLAIMS ALL LIABILITY FOR ANY ACTION OR INACTION REGARDING TRANSMISSIONS, COMMUNICATIONS OR INFORMATION PROVIDED BY ANY USER OR THIRD PARTIES. CERTAIN STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES AND/OR LIMITATIONS ON CERTAIN DAMAGES. IF ANY OF THESE LAWS APPLY TO YOU, SOME OF THE PROVISIONS IN THIS SECTION MAY NOT APPLY NOT YOU.
IN NO EVENT SHALL XMATTERS OR ITS EMPLOYEES, DIRECTORS, OFFICERS, CONTRACTORS, OR AGENTS BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION) ARISING OUT OF THE USE OF OR THE INABILITY TO USE THE MATERIALS PROVIDED ON, OR OTHERWISE RELATED TO, THE SERVICES, WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE, EVEN IF XMATTERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. XMATTERS’ LIABILITY FOR DIRECT DAMAGES SHALL BE LIMITED TO FIFTY US DOLLARS ($50).
9. Indemnity. You shall defend, indemnify and hold xMatters and its employees, contractors, shareholders, subsidiaries, affiliates, and officers harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with any claims made or brought against xMatters by a third party resulting from Your use of the Services, including alleging that any Information infringes the rights of such third party.
10. Term. This Agreement is effective upon Your first use of the Services. xMatters may suspend or discontinue all or part of the Services (in general or specifically for You) for any reason with or without notice to You.
11. Modifications. xMatters may make changes to the Services at any time and by posting notice of a new version of the Agreement on the Site. You must check the Agreement before using the Service.
12. Miscellaneous. Any disputes arising out of the use of the Services shall be governed by the laws of California, without regard to any conflict of laws principles, and any proceedings shall solely be brought in Contra Costa County, California. You represent and warrant that You are not located in a country that is subject to a U.S. Government embargo, designated by the U.S. Government as a “terrorist supporting” country, or subject to a similar designation; or listed on any U.S. Government list of prohibited or restricted entities. You also acknowledge that the Application may be subject to other U.S. and foreign laws and regulations governing the use of the Services and agree to comply with all such laws.
The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. xMatters may provide You notice under this Agreement to the latest address it has on file for You. This Agreement may only be modified by an agreement signed by an officer of xMatters. No failure or delay in exercising any right by xMatters shall constitute a waiver of such right. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect. This Agreement constitutes the entire agreement between xMatters and You, and supersedes any and all prior or contemporaneous agreements, understandings, and representations with respect to the information on and the use of the Services.