Version Date: January 2022
EXATHINK PROVIDES THE SERVICES SOLELY ON THE TERMS OF SERVICE SET FORTH HEREIN AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY USING OR PURCHASING THE SERVICES, YOU (A) ACCEPT THE TERMS OF SERVICE AND AGREE THAT YOU ARE LEGALLY BOUND BY THEM; AND (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THE TERMS OF SERVICE ON BEHALF OF THE ENTITY YOU REPRESENT AND BIND SAID ENTITY TO ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF SERVICE, YOU MUST NOT USE THE SERVICES OR DOCUMENTATION.
1. An "Account" represents Your service and legal relationship with Exathink as it relates to the use of this website and the Polaris AdvisorPlatform (the "Services"). Accounts are created by authorized Exathink representatives for companies or corporate entities that subscribe to the Services in conjunction with advisory programs offered by Exathink. This account relationship is deemed to bind the company or corporate entity to these terms of service. A “User Account” represents an individual User’s authorization to log in to and use the Service and serves as a User’s identity on the Service. At least one user in an account will be invited by an authorized Exathink representative as an "Account Owner" and it is expressly understood that the user logging into such an account as an Account Owner is explicitly authorized to bind the corporate entity to these terms of service. An Account Owner or Exathink representative authorized by the Account Owner may invite additional users to an account, including as an Account Owner and it is explicitly understood that each such user who logs in to a user account is also bound by these terms of service.
2. “Confidential Information” means all confidential information disclosed by a “disclosing party” to the other, the “receiving party,” whether orally or in writing, whether designated as confidential or reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including but not limited to all code, inventions, know-how, business, technical and financial information disclosed to the receiving party.
3. “Customer Account Data” means the personal information that Exathink collects on You as a User of the Service and which may include Service usage, data analytics, and contact information from Your Account as further identified in Exathink’s Privacy Statement (“Exathink’s Privacy Statement”).
4. “Exathink” refers to Picothink, LLC dba Exathink LLC, with a principal place of business at 211 W. Wacker Ave, Suite 300, Chicago, IL 60602
5. “Exathink Technology” means the Services (including all no-charge free Services), their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for Exathink.
6. “Service(s)” means the software development analytics and performance insights that are provided to You as a cloud based software as a service, in conjunction with an advisory plan selected in Your Account. Advisory services offered by Exathink are not covered within the scope of these terms and conditions and must be separately agreed to in writing within specifically scoped engagement letters executed by Exathink, and any entity that engages Exathink to provide such advisory services.
7. “ALM Data” means information contained within a User’s Application Lifecycle Management systems (e.g. Jira, GitHub, GitLab, Bitbucket, Pivotal Tracker etc), which the Service uses to provide software development analytics and performance insights.
8. “Term” means either the period for which You use the Service and/or as an Organization purchase an advisory services plan on a monthly or annual advisory services basis as set forth in Your Account, including any renewals thereof in accordance with Section 7.1.
9. “Users”, “You,” and “Your” refers to the individual person, company, or organization that is using the Service, and may be used interchangeably throughout this Agreement,, for whom an Account has been created, that accesses or uses any part of the Account; or that directs the use of the Account in the performance of its functions. Users may include but are not limited to Your employees, consultants, contractors and agents. A User must be at least 13 years of age.
By continuing to access this site, you can sign up for an account; sign up for services; input and analyze data; make payments; use provided services and tools; fill out forms; and receive information about Exathink products and services.
Any information or advice given by the Company on the Websites is not meant to take the place of advice of a licensed professional who you hire to give you personalized advice. It is general advice, strategies, and information about our company.
We cannot and do not guarantee any sort of specific result or outcome outside of the negotiated scope of a specific consulting engagement that is covered by its own separate terms and conditions. This agreement covers only the tools for you to use for yourself, organization, and business. Actually achieving results is dependent on your ability to implement, your individual circumstances, your business circumstances, and many factors that are not under Exathinks’s control or that Exathink knows about.
1. Users. Subject to these Terms of Service, You retain ultimate administrative control over Your User Account and the ALM System Data within it.
2. Organizations. The "owner" of an Organization that was created under these Terms of Service has ultimate administrative control over that Organization and the ALM System Data within it. Within the Service, an owner can manage User access to the Organization’s Account. An Account may have multiple organizations and an Organization may have multiple owners, but there must be at least one User Account designated as an owner of an Account and each Organization within it. If You are the owner of an Organization under these Terms, Exathink considers You responsible for the actions that are performed on or through that Organization.
3. User Accounts and Organizations have different administrative controls. You must have an Account to use the Services. Organizations will indicate the advisory services plan chosen in Your Account. Pricing, functionality, the quantity of Users and support will vary according to the advisory services plan chosen. All use of the Services by You and Your Users must be within the authorized scope of use set forth in these Terms of Service and the applicable advisory services plan in Your Account. You are responsible for all Users’ compliance with these Terms of Service and Your Account. If You elect a paid advisory services plan, additional information will be required for billing purposes
1. Access to Services. Exathink grants You a non-exclusive right to access and use the Services during the applicable Term in accordance with the applicable advisory services plan chosen by You in Your Account, these Terms of Service.. You acknowledge that the Services are on-line and advisory services-based and that Exathink may make changes to the Services from time to time, provided that such changes do not materially diminish the functionality of the Services.
2. Consulting Clients. You may already be a consulting client or you may be signing up to be a consulting client of Exathink - either on an ongoing or one-off basis. Consulting services are governed by a separate agreement and/or statement of work - these terms and conditions apply to the use of the Services or accessing of the website as part of the scope of such agreements or statement of work.
3. Restrictions. Except as otherwise expressly permitted in these Terms of Service, You shall not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, reverse engineer, or provide access to the Services to a third party, (b) use the Services for the benefit of any third party, (c) interfere or otherwise circumvent mechanisms in the Services intended to limit the scope of use, or (d) publicly disseminate, or cause the dissemination of, false or misleading information regarding the performance of the Services. You shall comply with all laws applicable to Your use of the Services. Any use of the Services in breach of these Terms of Service, Your Account or the Service documentation, that in Exathink’s reasonable judgment threatens the security, integrity or availability of the Services or of its intellectual property rights associated with, arising out of or integral to the Services, may result in immediate suspension of Your access to the Services. However, Exathink agrees to use commercially reasonable efforts (as dictated by the circumstances) to provide You with prior notice of the planned suspension and an opportunity to remedy such violation or threat either before or after the suspension occurs.
4. Credentials. You shall keep Your user IDs and passwords for the Services strictly confidential and not share such information with any unauthorized persons. You are responsible for any and all actions taken through use of Your Accounts and passwords. You agree to notify Exathink immediately if You become aware of any unauthorized use of the Services.
5. ALM System Data. You retain all right, title and interest in and to ALM System Data in the original form provided to Exathink via third party application programming interfaces used to import this data into the Service. Subject to the terms of these Terms of Service, You grant to Exathink a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit and share the ALM System Data with Exathink’s authorized business partners to the extent necessary to provide the Services to You and in accordance with Exathink’s Privacy Statement. Exathink may also access Your Account or instance in order to respond to support requests. You shall ensure that Your use of the Services including tracking of Users and all ALM System Data are at all times compliant with applicable local, state, federal and international laws and regulations including those applicable to data privacy and works council, as applicable. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all ALM System Data. You are solely responsible for the installation, maintenance, repair, use, and upgrade of the third party software that the ALM System Data is derived from that the Service is used with.
6. With respect to all reports delivered or made available to You (whether through physical or electronic delivery or through a web-based dashboard or portal) in connection with Your use of the Services (“Reports”), the template, design, and “look and feel” of the Reports (the “Report Templates”) shall remain the sole and exclusive property of Exathink. Exathink hereby grants to You a license to use and distribute the Report Templates for Your business purposes during the Term. You represent and warrant that to the best of Your knowledge, the ALM System Data does not contain any viruses, Trojan horses, worms or other components that would limit or harm the functionality of the Services. You consent to Your Account information and ALM System Data being stored in the United States as part of the Services.
7. Security. Exathink implements industry standard security procedures to help protect ALM System Data from security attacks. However, You acknowledge that use of the Services necessarily involves transmission of ALM System Data over networks that are not owned, operated or controlled by Exathink, and Exathink is not responsible for any ALM System Data lost, altered, intercepted or stored across such networks. Exathink cannot guarantee that its security procedures will be error-free, that transmissions of ALM System Data will always be secure or that unauthorized third parties will never be able to defeat Exathink security measures or those of Exathink’s third-party hosting providers. You are solely responsible for maintaining the security of Your network and computer systems. Exathink assumes no responsibility or liability for backing up ALM System Data as the primary source.
8. Use Verification. If Your use and Your Users’ use of the Services exceeds the permitted scope of use set forth in the advisory services plan elected in Your Account and these Terms of Service including the number of Users being tracked, Your Account will be charged the next month on a go-forward basis for the additional Users. If Exathink determines that You have exceeded the permitted scope of use, Exathink will notify You of its determination and may require You to immediately discontinue the unpermitted use or terminate Your access and use of the Services. Exathink may invoice You for additional Users commensurate with Your actual past use and You shall pay Exathink’s invoice on receipt.
9. Support and Maintenance. During the Term, Exathink shall provide support and maintenance, if any, as part of the Services at no additional charge in accordance with an advisory services plan selected by You.
10. User Consent To Receive Communications In Electronic Form. For contractual purposes, you: (a) consent to receive communications from us in an electronic form via the email address you have submitted; and (b) agree that all Terms of Use, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your non-waivable rights. We may also use your email address to send you other messages, including information about the Site or the Service and special offers. You may opt out of such email by changing your account settings, using the “Unsubscribe” link in the message, or by sending an email to support@exathink.com..
11. Impossibility. Exathink is hosted on servers maintained by other people, much like almost everyone else with a website. We, therefore, cannot be and are not responsible to you for any server outages or downtime, any buffering problems, or any delay, damage, or failure caused by or occasioned by any act of God, pandemic, act of nature or the elements, terrorism, insurrection, revolution or civil strife, piracy, civil war or hostile action, labor strikes, acts of public enemies, federal or state laws, rules and regulations of any governmental authorities having jurisdiction over the premises, inability to procure material, equipment, or necessary labor in the open market, acute and unusual labor, material, or equipment shortages, or any other causes beyond the control of Exathink, (Collectively, an “Force Majeure Event”). Delays due to any of the above causes shall not be deemed to be a breach of or failure to perform under this Agreement. Exathink shall not be required against its will to provide refunds or make any adjustments except in accordance with applicable law.
1. Delivery. Exathink shall deliver the login instructions for the Services to the email address(es) specified in Your Account.
2. Pricing. If You elect a paid plan, that price will remain Your price for the duration of the payment term exclusive of any advisory services plan changes; however, prices are subject to change at the end of a payment term.
Trial and Pilot Programs: Exathink will from time to time engage with prospective customers to implement time limited proof of concepts programs variously called pilots or trials. The scope and timelines and any potential fees for these programs will be governed by a separate statement of work. However, the terms and conditions of this document will continue to apply for all instances where Exathink Technology is used in as part of such programs, and will be deemed to continue to apply if such Trial or Pilot programs transition at the end of the program term to a free or paid advisory services program from Exathink.
3. Upgrades, Downgrades, and Changes. Exathink will immediately bill You when You upgrade from a free advisory services plan, or a trial or pilot program, to any paid advisory services plan. If You change from a monthly billing plan to a yearly billing plan, will bill You for a full year at the next monthly billing date. If You upgrade to a higher level of service, we will bill You for the upgraded plan immediately.
4. Billing, Schedule, and No Refunds. For monthly advisory services plans, the Service is billed on an individual monthly go-forward basis based on the number of Contributors in your Account as of the last day of a 30 day cycle [or on a yearly basis in advance with any excess added Users invoiced on a pro-rata basis for that month] respectively and is non-refundable. There will be no refunds or credits for partial months of service, downgrade refunds, or refunds for months unused with an open Account; however, the Service will remain active for the length of the paid billing period. By agreeing to these Terms of Service, You are giving Exathink permission to charge Your on-file credit card, or other approved methods of payment for fees that You authorize for Exathink. You are responsible for all fees, including taxes, associated with Your use of the Service. By using the Service, You agree to pay Exathink any charge incurred in connection with Your use of the Service. If You dispute the matter, contact Exathink at support@exathink.com. You are responsible for providing us with a valid means of payment for paid advisory services plans. Accounts with free advisory services plans are not required to provide payment information.
5. Invoicing: You agree to pay the fees in full, up front without deduction or setoff of any kind, in U.S. Dollars. You must pay the fees within thirty (30) days of the Exathink invoice date. Amounts payable under these Terms of Service are non-refundable, except as otherwise provided in these Terms of Service. If You fail to pay any fees on time, Exathink reserves the right, in addition to taking any other action at law or equity, to (i) charge interest on past due amounts at 1.0% per month or the highest interest rate allowed by law, whichever is less, and to charge all expenses of recovery, and (ii) terminate the applicable order form. You are solely responsible for all taxes, fees, duties and governmental assessments (except for taxes based on Exathink's net income) that are imposed or become due in connection with the Service.
1. Ownership and Feedback. The Services are made available on a limited license or access basis, and no ownership right is conveyed to You, irrespective of the use of terms such as “purchase” or “sale”. Notwithstanding anything to the contrary, except for the limited license rights expressly provided in these Terms of Service, Exathink and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to the Services, and Exathink Technology and Customer Account Data. No work product of any kind is provided under these Terms of Service or any other agreement. At no time during or after the term of this agreement shall any artifact exist that could be considered Your property other than the aforementioned ALM System Data. From time to time, You may choose to submit feedback or Service enhancement requests in the course of using the Services. You hereby grant to Exathink a fully paid, royalty free, worldwide, perpetual, unlimited license in and to any suggestions, enhancement requests, communications, recommendations or other advice or feedback (“Feedback”) that You or Your Users provide to Exathink relating to the Services or any of the Exathink Technology made available to You or Your Users, or the Services provided by Exathink to You hereunder. Feedback specifically excludes ALM System Data or Your Confidential Information.
2. Confidentiality. Except as otherwise set forth in these Terms of Service, each party agrees that all Confidential Information disclosed to a Receiving Party by the Disclosing Party constitutes the confidential property of the Disclosing Party. Any Exathink Technology and any performance information relating to the Services shall be deemed Confidential Information of Exathink without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party's nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and, if lawfully permitted, with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. Nothing in this Agreement shall limit the Exathink’s ability to use Confidential Information for the provision of services, for the running of any programs, or for maintenance for You.
3. Copyright Complaints. If you are a copyright owner or an agent thereof and believe, in good faith, that any materials on this site infringe upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (see 17 U.S.C 512) (“DMCA”) by sending the following information in writing to the Company’s designated support email with the subject: “Exathink Copyright Complaint”:
a. The date of your notification;
b. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
c. A description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
d. A description of the material that is claimed to be infringing or to be the subject of infringing activity and information sufficient to enable us to locate such work;
e. Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and/or email address;
f. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
g. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
In order to offer our services we may make use of third party applications or services. Additionally, we may provide you with convenient links to third party website(s) (“Third Party Sites”) as well as links to content or applications (“Third Party Services” and “Third Party Content”) that we find useful. These links are provided as a courtesy to You. However, once you leave Exathink or otherwise access any Third Party Sites, Third Party Services, and Third Party Content or their promotions, Exathink has no control over and no liability for the materials, information, goods or services available on these Third Party Sites, Third Party Services or Third Party Content. Such Third Party Sites, Third Party Services, and Third Party Content are not investigated, or monitored for appropriateness, or completeness by Exathink on any regular basis, and Exathink is not responsible for them, even if you accessed them through the Site. Inclusion of, linking to or permitting the use or installation of any Third Party Site, Third Party Services, or Third Party Content does not mean we are in any way responsible for them or the results that you may get using them.
If you decide to leave the Site and access the Third Party Sites or to use or install any Third Party Services, or follow any Third Party Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site or relating to any applications you use or install from the site.
If Exathink is receiving any financial gains from linking to or referring to a particular site or service, we will be sure to let you know by labeling the content as affiliate or advertising.
1. Term. These Terms of Service shall remain in effect for the Term, unless sooner terminated as permitted herein.
2. Termination. You may close Your Account at any time. Exathink may terminate Your Account at any time upon thirty (30) days written notice to You for any or no reason. Unless either party cancels Your advisory services prior to expiration of the current Term, Your advisory services plan will automatically renew for another Term of a period equal to your initial advisory services Term. You will provide any notice of non-renewal through the means Exathink designates, which may include account settings in your Account or contacting Exathink’s support team at support@exathink.com.. Cancelling Your advisory services means that You will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the Services continuing to be offered and will be charged at the then-current rates.
3. Effect of Termination. Upon termination of Your Account, the access and use rights and license granted in Section 3 shall terminate immediately and You and Your Users shall no longer have any right to use or access any Services, or any information or materials provided by Exathink in connection with the Services, including Exathink Confidential Information. Exathink will delete ALM System Data from the Services within thirty (30) days, after the termination of Your Account upon Your written request to support@exathink.com and all ALM System Data will be retained by Exathink if You do not request deletion. If Exathink elects to terminate Your Account for any or not reason, Exathink shall refund to You all amounts paid in advance, if any, for use of the Services after the termination date on a pro-rata basis as its sole and exclusive obligation and Your sole and exclusive remedy.
4. Survival. The following provisions will survive any termination or expiration of these Terms of Service: Sections 4.4, 4.5. 5, 6, 7.3, 7.4, 8.3, 9, 10.2, 11, 12, 13, 14, and 15.
1. Exathink Warranties. Exathink warrants that during the Term, the Services shall, when properly used in the manner authorized by these Terms of Service shall function in substantial conformity with the applicable Service documentation for the advisory services plan elected. For any breach of the warranty herein, uncured by Exathink within thirty (30) days of reporting such warranty defect, Your sole and exclusive remedy shall be to terminate Your Account and Exathink shall refund to You all amounts paid in advance, if any, on a pro-rata basis corresponding to the period of discontinuation as its sole and exclusive obligation. Notwithstanding the foregoing, this warranty shall not apply to any non-conformity resulting from a modification of or defect in the Services that is made or caused by any person other than Exathink or a person acting at Exathink’s direction. Warranty is fully excluded for all free advisory services plans, or trial and pilot programs for the Service.
2. Your Warranties. You represent and warrant that You have the legal power and authority to enter into these Terms of Services and that that the ALM System Data provided by You in connection with these Terms of Service does not and will not violate any applicable law or regulation and that You have obtained any necessary consents to use and provide the ALM System Data to Exathink. In the event of any breach, or reasonably anticipated breach, of any of Your warranties herein, in addition to any other remedies available at law or in equity, Exathink will have the right to immediately, in Exathink’s sole discretion, suspend any related Services or terminate Your Account if deemed reasonably necessary by Exathink to prevent any harm to Exathink or its business.
3. DISCLAIMER. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED ABOVE, TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXATHINK DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WARRANTIES ARISING UNDER STATUTE, WARRANTIES OF MERCHANTABILITY, ACCURACY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXATHINK DOES NOT GUARANTEE THAT (A) THE SERVICES WILL PERFORM ERROR-FREE OR UNINTERRUPTED, OR THAT EXATHINK WILL CORRECT ALL ERRORS IN THE SERVICES; (B) THE SERVICE WILL OPERATE IN COMBINATION WITH YOUR CONTENT OR APPLICATIONS, OR WITH ANY OTHER SOFTWARE, HARDWARE, SYSTEMS, OR DATA; AND (C) THAT ANY SERVICES, INFORMATION OR OTHER MATERIAL THAT YOU OBTAIN FROM EXATHINK UNDER THIS AGREEMENT, WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS.
NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR COST OF COVER OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. EXATHINK’S LIABILITY TO YOU SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID AND/OR TO BE PAID BY YOU DURING THE LAST 12 MONTHS PRIOR TO THE CLAIM.
1. By Exathink. Exathink agrees to defend, indemnify and hold You harmless from and against any loss, claim, demand, cost, liability, damage, judgment or settlement, including attorneys’ fees, arising directly from or relating to (i) any third-party claim alleging that a Service, when used as authorized hereunder, (a) violates applicable law, or (b) infringes a patent or registered copyright, each enforceable in a country that is a signatory to the Berne Convention. Exathink’s indemnification obligation under this Section 10.1 is subject to Exathink receiving (a) prompt written notice of such claim (provided, however, that a delay in notification does not excuse Exathink’s obligations except to the extent Exathink is materially prejudiced by such delay); (b) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (c) Your reasonable cooperation. If Your use of a Service is (or in Exathink’s opinion is likely to be) enjoined, if required by settlement, or if Exathink determines such actions are reasonably necessary to avoid material liability, Exathink may, at its option and in its discretion: (x) procure a license for the continued use of the Service; (y) substitute a substantially functionally similar Service; or (z) terminate Your Account and refund any prepaid amounts, if any, for the periods after the termination date. Notwithstanding the foregoing, Exathink’s indemnification obligations above do not apply: (1) if the Service is modified by You or a third party acting on its behalf, but solely to the extent the alleged infringement is caused by such modification; (2) if the Service is used in combination with any non-Exathink service, software or equipment without Exathink’s approval, but solely to the extent the alleged infringement is caused by such combination; (3) to unauthorized use of the Services which gave rise to the claim; (4) to any claim arising as a result of ALM System Data or circumstances covered by Your indemnification obligations in Section 10.2; (5) if You settle or make any admissions with respect to a claim without Exathink’s prior written consent; or (6) if the total aggregate fees we receive with respect to Your advisory services plan for the Services in the twelve (12) month period immediately preceding the claim is less than US$50,000. THIS SECTION 10.1 STATES EXATHINK’S SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY SERVICE OR OTHER ITEMS PROVIDED BY EXATHINK UNDER THESE TERMS OF SERVICE.
2. By You. You agree to defend, indemnify and hold harmless Exathink from and against any loss, claim, demand, cost, liability, damage, judgement or settlement, including attorneys’ fees, arising from or relating to any claim brought by a third party alleging that (i) ALM System Data infringes or misappropriates the intellectual property rights of a third party or violates applicable law including those related to data privacy, or (ii) You have provided Exathink with or access to personal information of any User without first obtaining the individual’s consent to provide the information to Exathink if required by applicable law or regulation. Your indemnification obligation under this Section 10.2 is subject to You receiving (a) prompt written notice of such claim (provided, however, that a delay in notification does not excuse Your obligations except to the extent You are materially prejudiced by such delay); (b) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (c) Exathink’s reasonable cooperation.
These Terms of Service will be governed by and construed in accordance with the applicable laws of the State of Illinois, without giving effect to the principles of that State relating to conflicts of laws. In the event of any controversy or claim arising out of or relating to these Terms of Service, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available pursuant to this Section 11 (Governing Law). All negotiations pursuant to this Section 11 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.
You agree that Exathink may identify You as a Exathink customer in its promotional materials. You may request that Exathink stop doing so at any time by submitting written notice via e-mail to: support@exathink.com.
You agree to comply with any applicable export and import laws and regulations that apply to Your use of the Services. You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Services or any direct Service thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Order Forms or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant to Exathink that (a) neither You nor any User is located in or will access the Services from any country that is subject to a U.S. trade embargo, and (b) neither You nor any User is on any restricted party list maintained by the U.S. government (e.g. the OFAC consolidated Personnel Screening List, BIS Denied Persons List or the Unverified List, or similar list attained by the export trade control agencies and offices of the US Government) and You agree to notify Exathink promptly if You or any User appears on any such restricted party list during the Term.
Exathink may update or modify these Terms of Service from time to time, including any referenced policies and other documents. If Exathink modifies these Terms of Service during the Term, the modified version will only be effective upon the next renewal term. If You object to the updated Terms of Service, as Your exclusive remedy, You may choose not to renew Your advisory services plan and terminate these Terms of Service and your Account.
General Provisions.
Any notice under these Terms of Service must be given in writing. Notice may be given to You via email or through Your Account. Notices will be deemed given upon the first business day after the notice is sent. You may provide notice to Exathink LLC., at: 4919 N. Hoyne Ave, Chicago IL 60625, , Attn: Legal Notice. Notices sent by You to Exathink will be deemed given upon receipt. Neither party shall be liable to the other for any delay or failure to perform any obligation under these Terms of Service (except for a failure to pay Fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power of telecommunications or data networks or services, or refusal of a license by a government agency. You may not assign these Terms of Service to a third party without Exathink’s prior written consent, which consent will not be unreasonably withheld. These Terms of Service are the entire agreement between Exathink and You relating to the Services and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Services or any other subject matter covered by these Terms of Service. If any portion of these Terms of Service is found to be void or unenforceable, the remaining provisions of these Terms of Service shall remain in full force and effect. No failure or delay by the injured party to these Terms of Service in exercising any rights under these Terms of Service shall operate as a waiver of such rights, nor shall any single or partial exercise of such rights preclude any other or further exercise of such rights or the exercise of any rights under these Terms of Service at law or equity. The parties are independent contractors. These Terms of Service shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party.
