Terms of service
In order to access and utilize the Exchange Gate solution, you must first agree to these Terms. You are entering into a legally binding agreement with us by registering with Exchange Gate or utilizing the Exchange Gate solution in whole or in part. Please take the time to read these Terms carefully. You will not be able to utilize the Exchange Gate solution if you do not agree to these Terms. We reserve the right, at our discretion, to propose changes to these Terms on a regular basis. Such changes will be communicated to you via email to the email address we have on file for you, or through other means. Following notice of such adjustments, your continuing use of and access to the Exchange Gate solution implies your acceptance of and agreement to the updated Terms. Unless we waive such violation in writing in our sole judgment, your right to use the Exchange Gate solution automatically ceases if you break any of these Terms.
If you are prohibited from using the Exchange Gate solution by the laws of the United States or other countries, including the nation in which you reside or from which you use the Exchange Gate solution, you may not use it. You confirm that you are at least 13 years old; the Exchange Gate solution is not designed for children under the age of 13.
1. Defined Terms
"Exchange Gate Solution" : the services, features, functionality, data, and content made available to you as set forth in an Order, as well as the Client Software and any related documentation and other materials, as well as any upgrades, enhancements, customizations, error corrections, deprecations, and other changes to any of the foregoing that we may from time to time, in our sole discretion, provide to you or incorporate into such services, software, features, functionality, data, and content.
"Access Information" : user name, password, and other log-in information for access to the Exchange Gate Solution.
"Application" : the software application owned or controlled by you, and configured, using the Client Software, to utilize the Exchange Gate Solution.
"Client Software" : the software for use on your computer or device (server and client) that we provide as part of the Exchange Gate Solution, as may be updated or modified by us in our sole discretion on one or more occasions.
"Content" : text, images, graphics, photos, video, audio, and any other content, information or data, created, derived from or accessible via use of the Exchange Gate Solution, or otherwise made available by and to Exchange Gate end users.
"Data Processing Addendum" : or "DPA": the Data Processing Addendum to these Terms, set forth here.
"Evaluation Trial" : provision of the Exchange Gate Solution free of charge, including provision of the free account level of service.
"Order" : the online signup page or separate ordering form (as may be amended), digitally or physically accepted by you, setting forth the Evaluation Trial and/or subscriptions you have purchased for access to the Exchange Gate Solution, terms regarding Services, if any, and other associated terms.
"Other Applications" : any Application, Content and online or offline software, products, services, functionality, text, video, audio, data, hardware, network and content not developed or provided by us, including any of the foregoing that is owned or licensed by you or is processed, made available or enabled for use and display via the Exchange Gate Solution.
"Professional Services" : services we perform to enable the training, setup and/or integration of the Exchange Gate Solution, as specified in the Order.
"Scheduled Downtime" : temporary planned downtime of the Exchange Gate Queues feature of the Exchange Gate Service with at least seven business days’ notice.
"Services" : the Professional Services and the Support Services.
"Service Level Agreement" : or "SLA": the service level agreement set forth in section 8.0 below.
"Support Services" : the support and maintenance services described in section 7.2 below.
"Terms" : these Exchange Gate Terms of Service and the Order, if any, referencing this agreement.
"We", "us", "our" or "Exchange Gate" : Exchange Gate Realtime Ltd., organized under the laws of Latvia.
"You" or "your" : the individual using the Exchange Gate Solution, or clicking "accept" or "agree" (or otherwise demonstrating acceptance of the Terms) where indicated, and thereby becoming bound by these Terms, and the company or other legal entity represented by such individual and/or that accepted an Order, and all affiliates thereto.
2. Subscriptions to the Exchange Gate Solution
2.1. Availability. We will provide you with a subscription to the Exchange Gate Solution according to these Terms and following the applicable Order(s) during the length of your subscription, subject to your compliance with these Terms, including payment requirements. You acknowledge that your decision to use the Exchange Gate Solution is not based on the availability of any future functionality or features, or any public or private remarks or claims made by us.
2.2. Evaluation Trial. Any data, personalizations, integrations, adaptations, customizations, or other materials generated during the Evaluation Trial will be permanently lost at the end of the Evaluation Trial unless you purchase the applicable Exchange Gate Solution. Except as the parties may otherwise agree in the Order, we are under no obligation to provide Services during or in support of the Evaluation Trial. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS, THE EVALUATION TRIAL IS PROVIDED "AS IS" AND WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, and the SLA does not apply to any Evaluation Trial. You must cancel the Evaluation Trial by the end of the stated number of days in the Evaluation Trial offer to avoid incurring charges unless we notify you otherwise. Unless we waive such violation in writing in our sole judgment, your right to use the Exchange Gate solution automatically ceases if you break any of these Terms.
2.3. Consent to Emails. You agree and consent to receive email messages from us, which may be transactional, for account management purposes, or communications linked to or supplied as part of the Exchange Gate Solution, such as subscription notifications, administrative alerts, and service announcements or modifications.
2.4. Reservation of Rights. Rights are reserved. All rights, title, and interest in and to the Exchange Gate Solution and our Content, as well as all associated intellectual property rights, are retained by us. Our patents are not licensed in any way. The Exchange Gate Solution's user interface, user experience, icons, presentation layer and elements, reports, layouts, and screen displays are our copyrightable content, trade dress, and trademarks and service marks, and you may not reproduce, distribute, or display them except for your personal use or business operations following these Terms.
2.5. Your Content. All rights, title, and interest in and to your Content, as well as all associated intellectual property rights, are yours to keep.
3. Use of Exchange Gate Solution
3.1. Necessary systems. All necessary system, hardware, software, operating environment, Other Applications, connectivity, and network access are required for access to and successful use of the Exchange Gate Solution or Services. You understand that using the Exchange Gate Solution necessitates a network connection and data transfers, which may affect your data consumption charges from your cellular operator or other service provider, as well as usage constraints imposed by Other Applications. Our Acceptable Use Policy must be followed
3.2. Feedback. You agree that we may use and exploit in perpetuity any feedback, requirements, recommendations, ideas, bug fixes, ratings, comments, suggestions, or improvements that you, or any of your employees or agents, may disclose or submit to us relating to the Exchange Gate Solution or the Services for our business purposes, including product licensing, support, and development, without any obligation or payment to you. If you voluntarily supply us with such input, you warrant that you have full right and authority to do so and that our use of it will not infringe on or violate third-party rights.
3.3. Information. You hereby consent to our collection and use of anonymized metadata (for analytical, diagnostic, information, and usage statistics) relating to or arising from your use of the Exchange Gate Solution in order to provide Exchange Gate Solution functionality, for product development and marketing purposes, and to verify Terms compliance. To help detect and protect against spam and malware, or to improve the Exchange Gate Solution, we may utilize automated ways to separate information from your Content. The preceding should not be interpreted as an admission that consent to such data gathering is required by law. You represent and warrant that all information you provide to us in connection with the Exchange gate Solution, including account and billing information, is accurate, complete, and truthful, and that you will promptly update any information you provide that becomes inaccurate, incomplete, misleading, or false in the future.
3.4. Unauthorized use. You shall not use the Exchange Gate Solution or engage in any activities through the Exchange Gate Solution in a way that is likely to be illegal or in violation of third-party rights, including intellectual property rights, in any applicable country. You must follow all applicable laws when using the Exchange Gate Solution. The correctness, quality, and legality of the Other Applications are exclusively your responsibility. You may not use the Exchange Gate Solution to store or transmit infringing, libelous, pornographic, offensive, or otherwise unlawful or tortious material or data, or to violate privacy rights, or to transmit malicious code, viruses, time bombs, Trojan horses, or similar mechanisms, scripts, agents, bots, or programs. You may not use or access the Exchange Gate Solution: (a) if you are or are acting on behalf of a direct competitor of ours; or (b) to monitor availability, performance, or functionality, or for any other benchmarking or competitive objectives.
3.5. Notifications to you. We may put a banner notice across site pages to notify you of specific changes, such as amendments to these Terms, for service messages and announcements concerning the Exchange Gate Solution to you. Alternatively, even if we have additional contact information, notice may take the form of an email from us to an email address linked with your account. You also agree that we may communicate with you about your account and these Terms via your account or any contact information you've provided to us, such as your email, cell number, phone number, or delivery services. From time to time, we may propose changes to these Terms, and we will notify you as indicated in this section. If you are a paid subscriber and you object to the changes, you must contact us within thirty days of getting notice of the changes. If you contact us as instructed in this section, the proposed modifications to the Terms will not take effect until the paid Exchange Gate Solution subscription is renewed after the existing subscription expires.
3.5. Notifications to us. If you believe you are entitled or obligated to act in violation of these Terms under any mandatory or applicable law, you agree to provide us with a detailed and substantiated explanation of your reasons in writing at least thirty days before you do so, so that we can determine whether we may, in our sole discretion, provide an alternative remedy for the situation, though we are under no obligation to do so.
4. Client software
4.1. License to Use. We hereby grant to you a worldwide, non-sublicensable, non-transferable, and non-exclusive license to (a) install and use the applicable components of the Client Software on any computing device (owned by you or in your exclusive possession) on which the Client Software is intended to run, as well as any Exchange Gate documentation and APIs, for your internal or personal use in support of your business operations, (b) use the applicable components of the Client Software on any computing device (owned by you or in your) and (b) solely as permanently incorporated in your Application and solely for the purpose of using the Exchange Gate Solution, reproduce and distribute copies of the applicable Client Software components (identified by us as client libraries suitable for such usage).
4.2. Updates. Your PC or device's client software may be updated automatically. You may need to update the Exchange Gate Solution to keep using it. Unless different conditions are included with the updates, you agree to accept them subject to these Terms. If that's the case, the other terms will apply. We are not bound to provide any updates, and we cannot guarantee that the version of the Client Software you are currently using will be supported.
4.3. Unauthorized Use. You may not (a) duplicate the Client Software except as necessary to load it on the device indicated above; (b) distribute or share use of the Client Software with any third party; or (c) sublicense, rent, lease, or commercially host the Client Software, except as set forth above. We reserve all rights not expressly granted in this section. Except for the rights specifically given by us, you will have no right or license to the Client Software.
4.4. Ownership. All right, titles, and interests in the Client Software and associated intellectual property rights, as well as all copies of the Client Software, remain with us and our licensors. The Client Software's structure, sequence, organization, and code are valuable trade secrets and copyrighted private information to us and our licensors.
4.5. Reverse Engineering. You may not reverse engineer, modify, decompile, disassemble, or otherwise attempt to derive the source code, interfaces, or other information from the Client Software unless and only to the extent that: (a) such activity is expressly permitted by directly applicable law notwithstanding this limitation, and (b) such activity is required to obtain information required to achieve interoperability of independently created software with the Client Software. Any information collected or supplied to you as a consequence of reverse engineering under this section may only be used by you for the purposes indicated in this section and will not be disclosed to any third parties or used to construct software that is substantially similar to the Client Software. You must not disable or circumvent any technological protective measures in or relating to the Exchange Gate Solution, or allow unauthorized third-party applications access.
4.6. Open Source. Any information collected or supplied to you as a consequence of reverse engineering under this section may only be used by you for the purposes indicated in this section and will not be disclosed to any third parties or used to construct software that is substantially similar to the Client Software. You must not disable or circumvent any technological protection measures in or relating to the Exchange Gate Solution, or allow unauthorized third-party applications access.
5. Access information & content
5.1. Access Information. Information can be accessed. You are solely responsible for preserving the confidentiality of Access Information and for all actions taken in reliance on such Access Information. Without our prior written authorization, you will not transfer Access Information to any other party or utilize the access information of another. Any unauthorized use of Access Information or any other breach of security will be immediately reported to us by email to email@example.com. We are not responsible for any loss or damage resulting from misplaced or forgotten Access Information (including associated data and content loss), failure to comply with this section, or unauthorized use of the Access Information.
5.2. Responsibility for Content. All Content is solely your responsibility, as well as the responsibility of the user who created it. We shall not be held liable or responsible for any Content or user data that is deleted or not stored. We reserve the right to label accounts that have been inactive for an extended length of time as "inactive" and archive them. Backing up all Content and end-user data is solely your responsibility. We may preserve and disclose Content if required to do so by law, legal or governmental order, or as reasonably necessary to protect our, users', and/or the public's rights, property, or safety. If you refuse to comply with our request to remove particular Content, we may suspend your access to the Application until you do so. You must immediately terminate an end user's account for your Application if you become aware of any violation of our Acceptable Use Policies by that end-user. In the event of a violation or suspected violation of these Terms or our Acceptable Use Policies, we retain the right to cancel end-user Exchange Gate accounts or disable the Application.
5.3. Use of Content. Users of Exchange Gate Solutions may be exposed to offensive, obscene, objectionable, unlawful, infringing, false, or erroneous Content. You will be responsible for all risks associated with using any Content, including any reliance on its quality, integrity, accuracy, completeness, or usefulness. We reserve the right to refuse or delete any Content that, in our sole judgment, fails to accomplish the objective of the Exchange Gate Solution, violates these Terms, is otherwise illegal, or is otherwise inappropriate. We make no representations or warranties about the accuracy, completeness, or quality of any Content. We will not be liable for any Content in any manner, including, but not limited to, any mistakes, inaccuracies, or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content. We have no responsibility or liability to you or any other Exchange Gate user to maintain, store, or license Content, or to safeguard and preserve the intellectual property rights of Content owners, or to enforce these Terms. You hereby waive and relinquish any claims you may have against us arising or resulting from your use or misuse of Content, your inability to successfully use Content, your failure to comply with these Terms, or any Exchange Gate user's act, omission, or behavior.
5.4. Propriety of Content. You shall not, and shall ensure that none of your end users transmit Content or otherwise conduct or participate in any activities on or via the Exchange gate Solution that are likely to be prohibited by law, or that are violative or in breach of third party rights in any applicable jurisdiction, including but not limited to laws governing libel and defamation, software encryption, technology export, transmission of obscenity, or permissible uses of intellect. You shall not and shall ensure that none of your end-users, upload, download, display, perform, transmit, or otherwise distribute any Content, or otherwise engage in any activity in connection with the Exchange gate Solution, that (a) is hateful, offensive, racist, bigoted, libelous, defamatory, obscene, abusive, pornographic, lewd, erroneous, stalking, or threatening; (b) advocates or encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or regulation; (c) constitutes infringement of the intellectual property rights of any party, including rights to the use of name and likeness, or violation of a right of privacy; (d) creates an impression that is incorrect, misleading, or deceptive, including without limitation by impersonating others or by otherwise misrepresenting identity or affiliation with a person or entity; or (e) divulges other people's private or personally identifiable information without their express authorization and permission. You represent and warrant that you have all necessary rights and licenses to transmit your Content and that all Content you submit is accurate and not misleading to the best of your knowledge, is not confidential or privileged, and is not in violation of third party rights. We may, in our sole discretion, terminate the Exchange gate Solution as to any Content that we believe in our sole judgment is not in compliance with these Terms.
5.5. Account Data. While we will make every effort to back up data, we accept no responsibility or liability for any Content that is deleted or fails to be stored. You understand and agree that your Content will only be retrievable or available through your authorized usage of the Exchange Gate Solution, and that we have no duty to assemble and return your Content to you, even if you choose to cancel your account, unless we otherwise agree in writing.
5.6. License to Content. You hereby give to us a royalty-free, global, permanent, irrevocable, fully paid-up, sublicensable, non-exclusive right and license to use, reproduce, modify, create derivative works of, perform, display, and distribute Content to deliver the Exchange Gate Solution.
6. Other Applications
6.1. Responsibility. The Other Applications are your responsibility. We shall not be liable for any Other Applications in any way, including, but not limited to, liability for any errors or omissions in any Other Applications, or for any loss or damage of any kind suffered as a result of using the Other Applications. You hereby waive and release any claims you may have against us arising out of or related to the use, abuse, alteration, or loss of Other Applications. We may stop providing such features or the Exchange Gate Solution if the providers of Other Applications cease to make the Other Applications available for interoperability with the corresponding features of the Exchange Gate Solution on reasonable terms or otherwise. You will not be entitled to any refund, credit, or other compensation.
6.2. Use of our content. If you install or enable Other Applications for use with the Exchange Gate Solution, you agree that the Other Applications' providers may have access to your Content as needed for the Other Applications' interoperability with the Exchange Gate Solution. We will not be liable for any disclosure, modification, or deletion of your Content as a result of such access by Other Applications or the Exchange Gate Solution allowing Other Applications to interact with it.
6.3. Other applications terms. When you utilize Other Applications, affiliate, or third-party content or services, you may be subject to additional terms and restrictions.
7.1. Professional Services. We shall supply the Professional Services described in the Order if you comply with these Terms, including your payment responsibilities.
7.2. Support Services. We shall offer the Support Services to the extent specified in the Order, subject to your compliance with these Terms, including payment obligations:
- During normal business days, from 0900 to 1700 local London time, we will use commercially reasonable efforts to offer email help desk, inquiry, and incident support in support of your use of the Exchange Gate Solution (excluding Exchange Gate and public holidays). Error reports and problems must be addressed to firstname.lastname@example.org via email. You will make commercially reasonable steps to reduce the number of support requests you receive.
- All support issues and error reports shall be submitted in a manner that we specify, and will include all information needed to reproduce and diagnose the problem.
- You represent and warrant that you have complete right and authority to disclose any Authorized User or third-party data or information to us for Support Services.
- You must first attempt to discover the cause of and fix the issue directly with the Authorized User in question before submitting any form of support request. Only after reasonable conscientious attempts by capable and skilled IT specialists employed by you have failed to remedy the issue may you file a support request with us as outlined in this section. You will make reasonable steps to replicate the situation and collect all relevant and useful data.
- We will make commercially reasonable efforts to resolving any delay, malfunction, failure, or unavailability of the Exchange Gate Solution as quickly as practicable.
- Other services, such as training or set-up support, may be provided as specified in the Order.
- All updates, enhancements, ports, bug fixes, and new releases to the Exchange Gate Solution will be implemented for your benefit when and if they are developed by us, in our exclusive discretion. To minimize disruptions, we shall undertake scheduled maintenance during off-peak hours using commercially reasonable measures. We will make every reasonable effort to minimize the impact of any unscheduled or emergency maintenance on you, but we cannot promise that there will be no negative impact on your use in the case of such unscheduled or emergency maintenance.
- Other services, such as training or set-up support, may be provided as specified in the Order.
7.2. Rights. We retain all right, title, and interest in and to the Exchange Gate Solution, as well as any "Services Deliverables," which are defined as deliverables, software, materials, data, information, or content provided to you in connection with your use of the Exchange Gate Solution, or developed as part of the Services, and all intellectual property rights associated with them. We provide you a non-exclusive, non-transferable, global license to use such Services Deliverables solely for your internal operations in conjunction with your approved usage of the Exchange Gate Solution for as long as your subscription to the Exchange Gate Solution is in place. The licenses given to you in this section are the sole licenses you have for the Services Deliverables or related intellectual property rights.
8. Service level agreement
8.1. Exclusive Remedy. This section 8.0 (a) sets forth your sole and exclusive remedy, as well as Exchange Gate's sole obligation, in the event of any delay, error, fault, failure, or unavailability of the Exchange Gate Solution for any reason; and (b) applies only if the Exchange Gate Solution is subject to downtime as set forth in section 8.2.
8.2. Warranty. Exchange Gate simply warrants to you that the Exchange Gate Solution will achieve 99.9% uptime, subject to 8.5. The term "uptime" as used in this section refers to the Exchange Gate Solution's intended functionality being available at all times.
8.3. SLA. We will issue you "Service Credit(s)" against subscription fees due for the next full month following the month in which warranty noncompliance occurred, as your sole and exclusive remedy and our entire liability, for failure to comply with the uptime warranty of section 8.2. "Service Credit(s)" is defined as a monetary credit, as set out in the table in section 8.6 below, against subscription fees due for the next full month following the month in which warranty noncompliance occurred. Upon confirmation of eligibility, Service Credits will be issued. Service Credits are non-transferable and can only be used to offset future payments owed to us.
8.4. Process. You must tell us through email to email@example.com within thirty days of the first instance of warranty non-compliance to get a Service Credit. Your notification must contain the dates and times of the alleged outage, as well as request logs that back up the claim.
8.4. Exclusions. Your entitlement to Service Credits will not apply in the following circumstances: (a) Scheduled Downtime; (b) downtime caused by the performance of internet services, networks or traffic exchange or control points controlled by entities other than us, or caused by network latency; (c) downtime caused by your acts, omissions, connections or equipment or by Other Applications; (d) if the Exchange Gate Solution becomes unavailable as a result of circumstances or causes beyond our reasonable control, including any force majeure event; (e) suspension or termination as permitted in this Agreement; or (f) suspension or termination for emergency reasons, as required by law or any governmental authority or agency, or as needed to prevent or ameliorate violations or infringements of third party rights or applicable law.
8.4. Service Credits.
|Monthly Uptime Percentage
|99.899% to 97.0%
|5% of the next subscription fee
|96.999% to 95.0%
|10% of the next subscription fee
|94.999% to 92.0%
|20% of the next subscription fee
|30% of the next subscription fee
Please note that we offer 99.999% uptime SLAs for our Enterprise customers.
9.1. Subscriptions. You will pay us the fees listed, on the dates specified, in the Order. Current pricing information and FAQs can be found here. You may be subject to a data transfer limit or overage charges as disclosed on the pricing page. Charges are solely based on our measurements of your use of the Exchange Gate Solution unless otherwise agreed to in writing. By providing us with a billing account, you represent and warrant that you: (a) are authorized to use the billing account that you provided and that any payment information you provide is true and accurate; and (b) authorize us to charge you using your billing account. We may bill you in advance, at the time of purchase, shortly after purchase, or regularly for subscriptions. We will notify you in advance of any change in the amount to be charged for recurring subscription services. We may bill you at the same time for more than one of your prior billing periods for amounts that have not previously been processed. You may not develop multiple Applications to simulate or act as a single Application or otherwise access the Exchange Gate Solution in a manner intended to avoid incurring fees.
9.2. Orders. All payments are non-refundable (except as may otherwise be specified in the Order or these Terms) and are exclusive of taxes, bank service fees, or currency exchange settlements. Payments will be made via the method designated by us. In the event you are delinquent in the payment of any invoice for more than ten business days, we may at our option accelerate your unpaid fee obligations so that all payments are immediately due and payable under the subscription and suspend access to the Exchange Gate Solution and the Services until such accelerated payments and all overdue payments (including interest) are made in full. Notwithstanding any other provision of this Agreement, including section 14.6, nothing herein will be deemed to preclude us from filing a fees and expenses collection action at any time in any court of competent jurisdiction (and our right to pursue such relief is subject to arbitration). Payments to us will be made without deduction, counterclaim, or set-off of any kind. Any payments that are not timely paid as provided hereunder will, at our option, bear interest at the rate of the lower of (a) ten percent per annum; or (b) the highest rate permitted by applicable law. You shall reimburse our costs of collecting fees owed under these Terms, including court costs and reasonable attorneys' fees.
9.3. Billing Statement. The online billing statement we give on the account site contains information about your charges. The only billing statement we provide is this one. You are responsible for printing or saving a copy of each billing statement and keeping such copies for your records. If we make a mistake on a charge to your billing account, you must notify us within 120 days of the first appearance of the error on your billing statement. The charge will then be investigated as soon as possible. You release us from all obligations and claims of damage resulting from the error if you do not notify us within that time frame, and we will not be compelled to remedy the problem or give a refund.
9.4. Response to Process. If we are required to respond to a subpoena or other formal request for records or other information relating to the Exchange Gate Solution, services we have performed or solutions we have provided for you or on your behalf, or to testify by deposition or otherwise, you shall reimburse our time and expenses incurred following our then-current time and expense rates.
9.5. Taxes. You will bear and be responsible for the payment of all taxes, including all sales, use, value-added, rental receipt, personal property, or other taxes and their equivalents which may be levied or assessed in connection with these Terms or provision of the Exchange Gate Solution and Services (excluding only taxes based on our net income). If we are required to pay or collect any such taxes or other charges for which you are responsible under this section, the appropriate amount will be invoiced to and paid by you. To the extent you are required by local law to withhold or deduct taxes based upon our income from any payment(s) owed hereunder, such payment(s) will be increased (grossed up) in such amounts as would have been received by us as if no such withholding or deduction were required.
11. Disclaimer of Warranties, Limitation of Liability & Indemnity
11.1. Disclaimer. TO THE MAXIMUM EXTENT POSSIBLE UNDER APPLICABLE LAW, except as outlined in the SLA, WE DISCLAIM ALL WARRANTIES OF ANY KIND for THE Exchange Gate SOLUTION OR THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT Specifically, we make no warranty that (a) the Exchange Gate Solution or Services will meet your requirements, goals or needs, (b) Exchange Gate Solution access will be uninterrupted, timely, secure or error-free, or (c) any errors or deficiencies in the Exchange Gate Solution or Services will be corrected. We have no responsibility or liability for the deletion of or failure to store your Content or to ensure that your Content is accurate or complete. It is your sole responsibility to back up and maintain the accuracy and completeness of your Content. Because no online system is perfectly secure or reliable, the internet is an inherently insecure medium, and the reliability and security of hosting services, internet intermediaries, your internet service provider, and other application or service providers cannot be assured, you accept such inherent security risks associated with your use of the Exchange Gate Solution.
11.3. Indemnification. You hereby agree to fully indemnify, defend and hold harmless Exchange Gate, its affiliates, officers, directors, employees, and agents of Exchange Gate and its affiliates, from and against all claims, losses, damages, judgments, awards, costs, liabilities, expenses, sanctions, and fees (including our reasonable in-house and external lawyers fees and costs) directly or indirectly caused by or incurred because of a third party allegation, lawsuit, claim or proceeding, arising out of or related to (a) Content or Other Applications; (b) your end-users or any conduct or activity of your end-users; (c) breach of these Terms; (d) infringement of intellectual property rights; or (e) your business activities. We may assume the exclusive defense and control of any matter for which you are required to indemnify us at your expense, and you agree to cooperate with our defense of these claims. You shall not settle or compromise any such claims without our prior written consent.
11.4. General Release. You further agree that these Terms waive and release any claims that would otherwise be preserved by operation of section 1542 of the California Civil Code, which provides: “A general release does not extend to claims which the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that if known by him or her must have materially affected his or her settlement with the debtor or releasing party." You understand that you are releasing us from all claims, whether known or unknown to you, and whether or not you suspect that those claims may exist at this time.
12. Term & Termination
12.1. Term. Access to the Exchange Gate Solution commences upon acceptance of or as applicable the date outlined in the Order and will continue in effect as specified in the Order. These Terms will remain in effect for as long as any Evaluation Trials or subscriptions are in effect. If automatic renewals are allowed in your jurisdiction, we will inform you by email before automatically renewing your subscription. Once we have informed you that your subscription will be automatically renewed, we may charge you the then-current price for the renewal term. We will also remind you that we will bill your specified billing account for the renewal of the subscription, whether it was on file on the renewal date or provided later. We will also provide you with instructions on how you may cancel the subscription. You must cancel the subscription before the renewal date to avoid being billed for the renewal.
12.2. Termination. In addition to sections 14.1, 14.2, and 14.3, a subscription will be terminable for cause as follows: (a) in the event of a material remediable breach of these Terms; in such an event, the non-defaulting party will give notice of such default and opportunity to cure if the breach is remediable or reasonably capable of cure, and if the remediable breach is not substantially cured within thirty days from receipt of such written notice, the non-defaulting party may notify the defaulting party in writing of the immediate termination of all applicable subscriptions; or (b) immediately upon written notice of an irremediable material breach, or breach of sections 3.4, 4.0, 5.0, 7.3, 9.0 or 10.0; or (c) immediately upon our written notice if the Content, Other Applications or the Exchange Gate Solution becomes the subject of a claim of intellectual property or other rights infringement, or of a claim of privacy or data breach. We may terminate a subscription immediately upon written notice in the event your or any of your end user's manner of using the Exchange Gate Solution exceeds normal and reasonable usage, including via unauthorized automated (non-human) initiated requests, or otherwise, and such excessive or detrimental use has not been corrected by you within one business day of our written notice to you. We may additionally terminate a subscription upon written notice to you if you (d) become the subject of a legal proceeding under a law relating to insolvency or bankruptcy; or (e) or your property becomes under the control of a custodian or equivalent under applicable law or is assigned for the benefit of creditors; or (f) generally fail to pay your debts as they become due or acknowledge in writing that you are unable to do so.
12.3. Effect. Upon termination for cause by us, you will pay any unpaid fees covering the remainder of the term of all Orders after the effective date of termination. Termination will not relieve you of the obligation to pay fees payable to us for the period before the effective date of termination. The rights of either party under this section 11 are in addition to any other rights and remedies permitted by law or under these Terms. Breach of these Terms may result in pursuit of all available remedies for intellectual property rights (including copyright infringement), the availability of which you hereby acknowledge.
12.4. Survival. Access to and rights of use associated with the Exchange Gate Solution will terminate upon termination of any subscription. Sections 2.4, 2.5, 3.2, 3.3, 3.4, 3.5, 3.6, 4.3, 4.4, 4.5, 5.0, 6.0, 9.0, 10.0, 11.0, 12.3, 12.4 and 14.0 will survive any termination or expiration of these Terms or any subscription.
13. Data Protection
You will take all necessary and reasonable steps to ensure that you have the full legal right and authority to disclose and process all personal and personally-identifying data and that the processing of such data will not violate any applicable data protection or data privacy laws. You acknowledge that Exchange Gate is a data processor to the extent Exchange Gate processes personal data on your behalf as part of the Exchange Gate Solution and that you are the data controller. The parties hereby agree to the terms of the DPA.
14. General Provisions
14.1. Service Discontinuance/Modification. We reserve the right to change or remove access to any component, feature, or capability of the Exchange Gate Solution at any time, either temporarily or permanently. Even if specific features or services, your settings, and/or any Content you have provided or grown to rely on are permanently lost, we will not be liable for any such modification, suspension, or discontinuance.
14.2. Account Termination. We may terminate your account for cause, including without limitation for: (a) violation of these Terms; (b) abuse of Exchange Gate resources or any attempt to gain unauthorized entry to the Exchange Gate Solution; (c) use of the Exchange Gate Solution in a manner inconsistent with its purpose; (d) any Exchange Gate user's request for such termination; or (e) requirements of or for failure to comply with applicable law, regulation, court or governing agency order, or ethical requirements. We may in addition terminate the availability of the Exchange Gate Solution or Content for our business reasons, including if we elect to cease being in the business of providing it. We will not be liable for any termination of Exchange Gate users' access to the Exchange Gate Solution or Content. After account termination, you will not attempt to register a new account without our permission.
14.3. Account Deactivation. You have the option to delete your account at any moment without receiving a return. Deactivation is the only way to get rid of your account, and it may come with cancellation fees.
14.4. Trademarks; Media. You are granted no right, title, or license to any third party trademarks by these Terms, or to any of our trademarks or servicemarks. We reserve all rights, titles, and interests in and to our trademarks, service marks, trade names, domain names, and similar identifiers, including Exchange GateTM. You hereby authorize us to disclose in our websites, marketing collateral, and corporate presentations that you have selected Exchange Gate and purchased the use of Exchange Gate`s solutions and services.
14.5. Governing Law. The Subject Matter (as defined in section 11.2), and any disputes between us and related to or concerning any of the foregoing (including tort as well as contract claims, and whether pre-contractual or extra-contractual) will be governed by the laws of Latvia.
14.6. Dispute Resolution. A) Any disputes between or claims brought by you or us arising out of or related to the Subject Matter (including tort as well as contract claims, and whether pre-contractual or extra-contractual, as well as the arbitrability of any disputes (subject to section 14.6(B) below), will be referred to and finally settled by binding arbitration before the International Court of Arbitration by the Rules of Arbitration of the International Chamber of Commerce in effect at the time of arbitration except as inconsistent with this section. The arbitration will be conducted by telephone, on-line, and/or based solely upon written submissions where no in-person appearance is required. If in-person appearance is required, such hearings will be held in London, England. The arbitrator will apply the law specified in section 14.5 above. All awards may if necessary be enforced by any court having jurisdiction. The existence of any dispute, the existence or details of the arbitration proceeding, and all related documents, materials, evidence, judgments, and awards therein, must be kept confidential. Except as required by law, no party will make any public announcements for the proceeding or the award, except as required to enforce the same. The parties hereby waive the right to a trial by jury and agree to only bring claims in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. All disputes will be arbitrated only on an individual basis and not in a class, consolidated or representative action. The arbitrator does not have the power to vary these provisions. All claims (excluding requests for injunctive or equitable relief) between the parties must be resolved using arbitration following this section. Should either party file an action contrary to this section, the other party may recover lawyers' fees and costs associated with enforcing this section, provided that the party seeking the award has notified the other party in writing of the improperly filed claim, and the other party has failed to withdraw the claim in a timely fashion. (B) Notwithstanding the foregoing, nothing in this section will preclude the right and ability to bypass arbitration and file and maintain at any time an action for recovery of injunctive or provisional relief in any court of competent jurisdiction under the laws applicable thereto.
14.7. Limitation. You agree that, regardless of any legislation or law to the contrary, any claim or cause of action arising out of or related to the Subject Matter must be filed within one year of the occurrence of the claim or cause of action, or the claim or cause of action will be eternally barred.
14.8. Assignment. Without our prior written consent, you may not assign, delegate, or transfer these Terms in whole or in part, whether voluntarily or involuntarily, by merger, consolidation, dissolution, sale of assets, or otherwise. Without such written authorization, any alleged assignment, delegation, or transfer will be null and invalid. We reserve the right to assign these Terms at any time without notification or consent. The parties, as well as their respective and authorized successors and assigns, will be bound by and benefit from these Terms.
14.9. Injunctive Relief. You acknowledge and agree that any breach of these Terms, or any unauthorized use, disclosure, or distribution of the Exchange Gate Solution, may cause us irreparable harm, the extent of which is difficult to estimate and that we will be entitled to seek immediate injunctive relief (in addition to any other available remedies) in any court of competent jurisdiction under the applicable laws.
14.10. Miscellaneous The Terms constitute the entire agreement between you and us and govern your use of the Exchange Gate Solution and Services, superseding any prior agreements, understandings, communications, or proposals. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. No waiver of any provision of these Terms will be deemed a further waiver or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under these Terms will not constitute a waiver of such right or provision. In the event of any conflict or inconsistency between these Terms and any Exchange Gate website page (including any page describing or summarizing your or our rights, obligations, and/or these Terms), these Terms will control. Nothing herein will be deemed to create any agency, partnership, joint venture, employee-employer, or franchisor-franchisee relationship of any kind between us and any user or other person or entity, nor do these terms extend rights to any third party. The parties hereto confirm that they have requested that these Terms and all attachments and related documents if any, be drafted in English.