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Terms & conditions

THIS EXOSITE USER ONLINE SERVICES AGREEMENT (“AGREEMENT”) GOVERNS YOUR USE OF OUR EXOSITE ONLINE SERVICES (“SERVICES”).

BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, YOU AGREE TO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

This Agreement was last updated on December 12, 2011. It is effective between You and Us as of the date of Your acceptance of this Agreement.

OUR PROPRIETARY RIGHTS

Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights subsisting therein. We grant no rights to You hereunder other than as expressly set forth herein.

CONFIDENTIALITY

Definition of Confidential Information. 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. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

YOUR RESPONSIBILITIES

You shall not (i) permit any third party to access the Services except as permitted herein, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, (v) access the Services in order to build a competitive product or service or to copy any features, functions or graphics of the Services, (vi) sell, resell, rent or lease the Services, (vii) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, (viii) use the Services to store or transmit malicious code or malware, or to engage in phishing or other fraudulent activity, (ix) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (x) attempt to gain unauthorized access to the Services or Our systems or Our data or networks.

You shall (i) be responsible for Your compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of, and for the means by which You acquired, Your Data and Your Portal Resources, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, (iv) use the Services only in accordance with applicable laws and government regulations, and (v) provide Us with complete and accurate contact information.

WHAT WE LICENSE TO YOU

We grant you a worldwide license during the term of this Agreement to use the Services to collect and view Your Data. Free Services are limited to personal, non-commercial use.

WHAT YOU LICENSE TO US

You grant us a worldwide license to use, reproduce, transmit, display and adapt Your Data and Your Portal Resources solely as necessary for Us to provide the Services in accordance with this Agreement.

You grant us a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into our services any suggestions, enhancement requests, recommendations or other feedback provided by You relating to the operation of the Services.

Relationship to the Parties.

You and We are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You are in no way authorized to make any license, contract, agreement, warranty or representation on behalf of Us, or to create any obligations expressed or inspired on behalf of Us except to the extent and for the purposes expressly provided for and set forth herein.

EXCLUSION OF WARRANTIES

WE MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT REPRESENT OR WARRANT THAT YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. YOU will indemnify, defend and hold harmless US, and the underlying SERVICE PROVIDER, from and against any and all claims, damages and expenses (including reasonable attorneys' fees and costs of litigation) by any third party resulting from any acts or omissions of YOURS relating to its activities in connection with this Agreement, YOUR breach of this Agreement, or YOUR misrepresentations relating to US, the Services, or this Agreement, regardless of the form of action.

LIMITATION OF LIABILITY

IN NO EVENT SHALL WE HAVE ANY LIABILITY TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, WE SHALL HAVE NO LIABILITY FOR LOSS OF PROFITS, REVENUE OR DATA OR FOR INTERRUPTIONS IN SERVICE. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

TERM AND TERMINATION

This Agreement commences on the date You accept it and continues until terminated by either party in accordance with this Agreement.

You are solely responsible for properly cancelling your account. You may terminate Your subscription to the Services without cause at any time by logging in and clicking the Account link in the navigation bar at the top of the screen and following the cancellation links. An email or phone request to cancel your account is not considered cancellation.

We may terminate Your subscription to the Services at any time without cause upon 7 days’ written notice to You, or (b) automatically if you fail to comply with any term or condition of this Agreement. Upon any termination of Your subscription to the Services, this Agreement shall also terminate, subject to the Surviving Provisions.

UPON ANY TERMINATION OF YOUR SUBSCRIPTION TO THE SERVICES, YOUR INFORMATION, AND OTHER MATERIALS DEVELOPED BY YOU USING THE SERVICES WILL BE PERMANENTLY LOST.

Surviving Provisions. The following sections shall survive any termination or expiration of this agreement: Our Proprietary Rights, Exclusion of Warranties, Limitation of Liability, and General Provisions.

CHANGE TO TERMS

We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice.

We may make changes to this Agreement from time to time. When these changes are made, We will make a new copy of the new Terms available at https://avnet.exosite.com/termsconditions. You understand and agree that if you use the Services after the date on which this Agreement has changed, We will treat Your use as acceptance of the updated Terms.

FEES

The Services for paid plans are billed for in advance on a monthly basis and are non-refundable. There are no refunds or credits for partial months of service, plan downgrades, or refunds for months unused. You are responsible for paying all charges in accordance with the use of the Services associated with Your Data and Your Portals Resources even if you did not use, or authorize the use of, the Services. If You cancel Your subscription to the Services before the end of the current month, Your cancellation will take effect immediately and You will not be charged again, but You are responsible for any charges already incurred.

We reserve the right to change our pricing for all Services, including but not limited to monthly subscription plan fees to the Services, upon 30 days’ notice from us. Such notice may be provided at any time by an update to your Account page or via email or via the Services themselves.

Form of Payment. We may choose to bill for Fees through an invoice, in which case, full payment for invoices issued in any given month must be received by Us thirty (30) days after the date of the invoice, or the Services may be terminated or suspended as soon as one day after the date due as indicated on the invoice. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. You have 30 days after receiving the invoice to dispute any charges. Agreed upon changes to invoice will be reflected in the next applicable invoice to You.

If payment has been authorized by credit card, no additional notice or consent will be required for billings to that credit card for all amounts (including late charges and termination fees).

Taxes. You shall pay all applicable federal, state and local sales, use, public utilities, gross receipts or other taxes, fees, or recoveries imposed on Us as a result of this Agreement (collectively, “Taxes”), other than taxes imposed on Our net income. You will reimburse Us for any such Taxes paid by Us on Your behalf. If You are entitled to an exemption from any Applicable Taxes, You are responsible for providing Us with a valid exemption certificate (in a form reasonably acceptable to Us). We will give effect to any valid exemption certificate provided in accordance with the foregoing sentence to the extent it applies to any Services billed by Us to You only for the period following Our receipt of such exemption certificate. If any exemption certificate provided by You is deemed invalid or otherwise inapplicable to any use of Yours of the Services (including any internal use), You shall be responsible for, and shall indemnify Us against, all such Applicable Taxes.

GENERAL PROVISIONS

Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.

Governing Law. This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the internal laws of the State of Minnesota, without regard to their conflicts of laws rules.

Venue; Waiver of Jury Trial. The state and federal courts located in Hennepin County, Minnesota shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement.  Each party hereby consents to the exclusive jurisdiction of such courts.  Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services.

Assignment. You may not assign any of the rights or obligations give You hereunder, whether by operation of law or otherwise, without the prior written consent of Us (not to be unreasonably withheld).

DEFINITIONS

"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

"EXOSITE Online Services" means the online services provided by Us as described in this Agreement that You access through [avnet.exosite.com.com] and related sub-domains.

"We", " Us" or " Our" means Exosite LLC, a Delaware Limited Liability Corporation with a principal place of business at 227 Colfax Avenue North, Suite 150, Minneapolis, Minnesota, 55405, United States of America.

"You" or "Your" means 1) the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity, or 2) an individual , in the case of a non-legal entity as defined in the registration information provided to Us.

Your Portal Resources” means a web application and related configuration parameters that We, You, or a third party acting on Your behalf, create and that interoperates with the Services.

"Your Data" means all electronic data or information submitted by You, or by devices owned by You, to the Services.