Terms of Service

 

xPeerient, Inc. (“xPeerient”) operates a platform that facilitates connections between buyers and sellers of IT solutions to enable buyers to identify sellers that may possess the technology and methodology skills to meet their project requirements (the “Service”) through its proprietary system (including all software, the “System”) hosted by or for xPeerient and available via the Internet (the “Site”). You (“You” or “User”) are a buyer or seller of IT solutions (“Buyer” and “Seller” respectively) or employee or agent thereof that is authorized by Buyer or Seller to use the Service on Buyer or Seller’s behalf. If You are an employee or agent of a Buyer or Seller, You represent and warrant that You are authorized to and hereby do accept these Terms of Service on such party’s behalf and bind such party hereto. The following terms of service (the “Terms of Service”) shall govern Your use of the Site and the System.

 

 

1.         License.  Subject to all terms and conditions of these Terms of Service, xPeerient grants User a non-exclusive, non-transferable right and license (without right to sublicense) to access and use the System solely for the benefit of a Buyer or Seller for such Buyer or Seller’s internal business purposes. The System is made available to You solely as hosted by or on behalf of xPeerient, and nothing in these Terms of Service shall be construed to grant You any right to receive any copy of the System or any software. Your access and use of the Site and the System shall comply with all other conditions set forth in any agreement between You and xPeerient (such as, for example, any requirements regarding data formats, number of permitted users or prohibited uses); provided, however, that in the event of a conflict between such agreements and these Terms of Service, these Terms of Service shall control.

 

2.         Restrictions. You shall not directly or indirectly (a) use the System or any information gained therefrom to create any service, website, software or documentation that is similar to the Site, Service or the System, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code, algorithms or trade secrets underlying the System or any Background Materials (meaning all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies and information that are used by xPeerient in providing the System) (except and only to the extent any of the foregoing restrictions are expressly prohibited by applicable statutory law), (c) encumber, sublicense, transfer, distribute, rent, lease, time-share or use the System in any service bureau arrangement or otherwise for the benefit of any third party, (d) adapt, combine, create derivative works of or otherwise modify the System or any Background Materials, or (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information You obtain or learn pursuant to Your use of the System (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction. You shall not alter, obscure or remove any trademark, patent notice or other proprietary or legal notice displayed by or contained in the System or anywhere on the Site.

 

3.         Reservation of Rights. Except for the limited rights and licenses expressly granted hereunder, no other license is granted by xPeerient, no other use is permitted by You and xPeerient (and its licensors) shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the Site, Service, System, Background Materials, Compiled Data (as defined below) and Reports (as defined below). The System may operate or interface with software or other technology (“In-Licensed Code”) that is in-licensed from, and owned by, third parties (“Third Party Licensors”). You agree that (a) You will use In-Licensed Code in accordance with these Terms of Service and any other restrictions specified in the applicable license (if any), (b) no Third Party Licensor makes any representation or warranty to You concerning the In-Licensed Code and (c) no Third Party Licensor will have any obligation or liability to You as a result of these Terms of Service or Your use of the In-Licensed Code.

 

4.         User Data and Systems. You hereby grant xPeerient a non-exclusive, perpetual, irrevocable and royalty-free right and license to access, use, copy, process, modify, distribute, display and create derivative works of all information, data and other content provided by You in connection with Your authorized use of the Service (“User Data”), solely for the purpose of providing the Service. Additionally, you agree that xPeerient may make User Data available to other users of the System and such users may use, copy, modify and create derivative works of such User Data in connection with their authorized use of the System (including any use of any results obtained by any user through its authorized use of the System (“Results”)) and their internal business purposes. You represent and warrant that (a) all User Data is true, accurate and reliable to the best of Your knowledge, and (b) You have all rights necessary to grant the right and license granted hereunder. You agree that (i) the Service depends on the availability of the User Data and (ii) xPeerient will not assume any responsibility for, or undertake to verify, the accuracy or completeness of any User Data. xPeerient reserves the right to remove any User Data from the Site and the System in its sole discretion. You are responsible for providing (A) all equipment, subscriptions and credentials necessary for xPeerient to receive the User Data, (B) all modems, servers, devices, storage, software, databases, network and communications equipment and ancillary services needed to connect to, access or otherwise use the System and (C) all corresponding backup, recovery, network security and maintenance services (collectively, “User Systems”). You shall ensure that User Systems are compatible with the System.

 

5.         Compiled Data and Reports. You acknowledge and agree that xPeerient is free to disclose aggregate measures of Service usage and performance. You further agree that (a) xPeerient shall have the right to compile and analyze User Data and Results (“Compiled Data”) and to prepare reports, studies, analyses and other work product resulting from such Compiled Data on an anonymous basis (“Reports”) and (b) xPeerient shall have exclusive ownership rights to, and the exclusive right to use, such Compiled Data and Reports for any purpose, including, but not limited to, advertising, marketing, and promotion of networking opportunities to its customers and prospective customers; provided, however, that xPeerient shall not distribute Compiled Data and Reports in a manner that is identifiable as Your User Data without first obtaining Your prior written consent.

 

6.         Third Party Sites. The Site or the System may permit You to link to other websites or resources on the Internet, and other websites or resources may contain links to the Site. When You access third party websites, You do so at Your own risk. xPeerient is not responsible for and does not endorse any such third-party content or systems. These other websites are not under xPeerient’s control, and You acknowledge that xPeerient is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by xPeerient or any association with its operators, or any third-party software providers, products, software, opinions, or web sites accessed through the System.

 

7.         Information; User Interactions. The System acts as a conduit for System users to exchange information with other System users. xPeerient has no obligation and does not screen any data, information or other content provided by any user of the System (“Information”) and has no control over such Information. Furthermore, xPeerient is not involved in any transactions between You any other System user. As a result, You acknowledge that Your interactions with any other System user through the System, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between You and such other System user. YOU AGREE THAT XPEERIENT SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY COSTS, EXPENSES, LOSSES OR DAMAGES OF ANY SORT INCURRED BY YOU OR ANY THIRD PARTY AS THE RESULT OF ANY SUCH DEALINGS. IF THERE IS A DISPUTE BETWEEN YOU AND ANY OTHER SYSTEM USER, OR BETWEEN YOU AND ANY THIRD PARTY, YOU UNDERSTAND AND AGREE THAT XPEERIENT IS UNDER NO OBLIGATION TO BECOME INVOLVED.

 

8.         WARRANTY DISCLAIMERS. THE SYSTEM IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. XPEERIENT DOES NOT WARRANT THAT THE SYSTEM WILL MEET YOUR REQUIREMENTS OR THAT IT WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, XPEERIENT HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL WARRANTIES, ORAL OR WRITTEN, WHETHER EXPRESS, IMPLIED STATUTORY OR OTHERWISE, WITH RESPECT THE SERVICE, THE SITE AND THE SYSTEM, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, XPEERIENT MAKES NO WARRANTY (A) THAT THE SYSTEM WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE OR BUG-FREE, (B) REGARDING THE SECURITY, RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE SYSTEM, OR (C) THAT ANY ERRORS IN THE SYSTEM WILL BE CORRECTED.

 

9.         LIMITATION OF LIABILITY. IN NO EVENT SHALL XPEERIENT (OR ITS SUPPLIERS) BE LIABLE TO YOU, OR ANY THIRD PARTY CLAIMING UNDER OR THROUGH YOU, CONCERNING THE SUBJECT MATTER OF THESE TERMS OF SERVICE, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (D) DAMAGES, IN THE AGGREGATE, IN EXCESS OF $1,000, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THESE TERMS OF SERVICE AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. WITHOUT LIMITING THE FOREGOING, XPEERIENT WILL NOT BE LIABLE FOR ANY FAILURES IN THE SYSTEM OR ANY OTHER PROBLEMS WHICH ARE RELATED TO (I) THE USER DATA OR USER SYSTEMS, (II) ANY SATELLITE, TELECOMMUNICATIONS, NETWORK OR OTHER EQUIPMENT OR SERVICE OUTSIDE OF XPEERIENT’S FACILITIES OR CONTROL OR (III) UNAUTHORIZED ACCESS, BREACH OF FIREWALLS OR OTHER HACKING BY THIRD PARTIES.

 

10.       Export Controls. These Terms of Service are subject to all applicable export restrictions. You must comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority relating to the System and its use.

 

11.       U.S. Government End Users. As defined in FAR section 2.101, the System and any accompanying software or documentation provided to User are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of these Terms of Service and will be prohibited except to the extent expressly permitted by the terms of these Terms of Service.

 

12.       Term and Termination. These Terms of Service shall apply to Your use of the Site and the Service for as long as You continue to use the Site or the System. xPeerient shall have the right to immediately terminate Your use of the System without prior notice or liability, at any time. You may terminate Your agreement to these Terms of Service at any time by ceasing to use the System and the Site. Upon termination of Your use of the System and the Site, the license provided in Section 1 shall immediately cease, however, the remainder of these Terms of Service (as in effect at the time You cease using the System) shall survive expiration or termination of these Terms of Service.

 

13.       Miscellaneous. These Terms of Service shall be governed by and construed in accordance with, the laws of the Commonwealth of Massachusetts without regard to conflicts of law provisions thereof. The sole jurisdiction and venue for actions related to these Terms of Service will be the state or federal courts located in Massachusetts having jurisdiction over xPeerient’s principal offices, and both parties irrevocably consent to the jurisdiction of such courts with respect to any such action. You agree that money damages will not be an adequate remedy if You breach these Terms of Service, therefore, xPeerient shall, in addition to any other legal or equitable remedies, be entitled to an injunction or other equitable relief against such breach or threatened breach without the necessity of posting any bond or surety. These Terms of Service constitute the entire understanding between the parties regarding the subject matter described herein and supersedes any previous communications, representations or agreements, whether oral or written, regarding such subject matter. No change or modifications of any of the terms or conditions hereof by You shall be valid or binding on xPeerient unless made in writing and signed by an authorized representative of xPeerient. xPeerient may change or modify any of the terms or conditions hereof from time to time by posting an amendment on the Site, such change or modification to become effective immediately upon posting. No provision of right, power or privilege under these Terms of Service shall be deemed to have been waived by any act, delay, omission or acquiescence on the part of any party, its agents or employees, but only by an instrument in writing signed by an authorized representative of each party. If any provision of these Terms of Service shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms of Service shall otherwise remain in full force and effect and enforceable. You may not assign or transfer any of Your rights or obligations hereunder without the prior written consent of xPeerient, and any such attempted assignment shall be void. These Terms of Service shall be binding on and inure to the benefit of the parties hereto and their respective successors and permitted assigns. The parties hereto shall each be independent contractors in the performance of their obligations under these Terms of Service, and nothing contained herein shall be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose.