By creating a subscription and/or utilizing Xploritas Software Services (‘Application’), you agree to be bound by these terms and conditions. If you do not agree to these terms and conditions, then you are not authorized to use the application.
a. The application is a database and Software Web Services Application offered to the Client over the Internet.
b. A User refers to each employee of the Client who accesses the Application on the Client’s behalf or invitation.
c. “Availability” or “Available” means the Client can log into the Application. “Unavailable” or “Unavailability” means the Client is unable to log into the Application.
d. Party or parties refer to either the Client or Xploritas.
Xploritas runs a Bank Relationship Management Application, which enables the user to manage bank relationships. After subscription, the Application is accessible via the website https://www.xploritas.com. These terms and conditions apply for all Users of the Application.
Xploritas applies a privacy policy that is related to all users' personal data. Please see https://www.xploritas.com for the current privacy policy.
The term of the subscription shall commence on the commencement date of the subscription and shall continue until the subscription is terminated.
a. Subject to these terms and conditions, Xploritas grants to the Client a nonexclusive, revocable, non-sublicensable, non-transferable license to access and use the Application during the Term solely for its internal business. The Client is solely responsible for providing all telecommunications, computer and other equipment necessary for accessing the Application.
b. No trademark license, right or interest in the trademarks, trade names or service mark of either party or its licensor is granted hereunder, except as either party may agree in writing.
a. Exclusion of Consequential Damages. In no event shall either party be liable for any indirect, incidental, special, or consequential damages, including without limitation damages for losses of profits, data, or use, incurred by either party or any third party, whether in an action in contract or tort, even if the other party has been advised of the possibility of such damages.
b. Limitation of Direct Damages. The aggregate and cumulative liability of Xploritas and its suppliers for damages hereunder shall in no event exceed the amount of fees paid by the Client for the previous twelve (12) months. Except for actions for non-payment or breach of confidentiality or intellectual property rights, no action (regardless of form) arising out of these terms and conditions may be commenced by either party more than one (1) year after the cause of action has accrued.
a. General Indemnity. Each party (“Indemnitor”) shall defend and indemnify the other party, its employees, officers, directors and agents (“Indemnitee”) against all damages for bodily injury, death, or damage to real or tangible personal property, proximately caused by the Indemnitor in the course of performing these terms and conditions, provided that: (i) the Indemnitor receives prompt written notice of the claim from the Indemnitee under this Section; (ii) the Indemnitor has the right to control the defence of such a claim and any related settlement negotiations, and; (iii) the Indemnitee provides to the Indemnitor, at the Indemnitor’s request and expense, with the assistance, information and authority necessary to perform the Indemnitor’s obligations under this Section.
b. Notwithstanding the foregoing, Xploritas shall have no liability for any claim of infringement based on the use of the Application other than in accordance with these terms and conditions; or, any materials, content or information provided to Xploritas by the Client, for which the Client shall be solely responsible. If the Application is held to infringe or is believed by Xploritas to infringe, Xploritas shall have the option, at its expense, to either replace or modify the Application to be non-infringing. If it is not commercially reasonable to perform either of the foregoing options, then Xploritas may terminate the subscription and refund the prepaid, unused subscription fees paid for the Application. This Section states Xploritas’s entire liability and the Client’s exclusive remedy for any claim of infringement.
a. Xploritas uses commercially reasonable efforts to correct errors (a material failure of the Application to function) or provide a reasonable workaround. This is the Client’s sole and exclusive remedy for errors. Xploritas shall adopt commercially reasonable measures to ensure that the security of the Application meets relevant industry standards. Xploritas privacy and security measures are described on https://www.xploritas.com. The Client is responsible for the security of all usernames and passwords granted to it, for the security of the systems used to access the Application and for its users’ compliance with these terms and conditions. The Client acknowledges that the Application is not intended for processing of health information, personal credit card numbers, personal financial account numbers, or other similarly sensitive personal information, and the Client assumes all risk arising from the use of any such sensitive information with the Application, including the risk of any inadvertent disclosure or unauthorized access thereto.
b. Disclaimer of warranty. The Application, access thereto, and any services provided hereunder are provided on an “as is” basis, and Xploritas (a) does not make, and hereby expressly disclaim, any and all warranties, representations or conditions, whether express, implied, statutory or otherwise, including but not limited to warranties of merchantability, fitness for a particular purpose, and any warranties arising from course of dealing, usage or trade practice; (b) does not warrant that access to the Application will be uninterrupted, error-free or secure, or that any information, software or other material accessible through the Application is free of viruses (although Xploritas represents that it will use commercially reasonable efforts to avoid viruses) or other harmful contents or components; (c) shall in no event be liable to the Client or anyone else for any inaccuracy, error or omission in, or loss, injury or damage (including loss of data) caused in whole or in part by, or failures, delays or interruptions of the Application.
a. An overview of fees is available on request.
b. In the event the Client gives access to the Application to non-authorized Users, Xploritas shall be entitled to recover the full amount with the Client of any license fees that would relate to such Users.
c. All fees are payable in the currency set forth in the applicable subscription. All fees and amounts are non-refundable. All payments, if invoiced, are due within fifteen (15) days from the date of invoice. All payments not made within such fifteen (15) day period shall be delinquent. Late fees shall accrue on all delinquent payments at the lesser of (i) 1.5% per month, or (ii) the maximum rate allowed under law. If delinquent payments are not made within fifteen (15) days of written notice to the Client by Xploritas, then Xploritas may, at its sole discretion, immediately terminate the subscription and the Client’s access to the Application with no further liability to the Client. Notwithstanding the above, Xploritas may for each renewal period of the subscription increase its fees by not more than five (5%) percent unless the Client is provided with a notice of new pricing not less than 90 days prior to the applicable Renewal Term.
a. These terms and conditions shall continue to be in force until terminated by either party in accordance with this Section.
b. Termination for Breach. If either party materially breaches these terms and conditions and such a breach is not cured within thirty (30) days after written notice is given to the breaching party, then the other party may, by giving written notice to the breaching party, terminate the subscription as of the end of such thirty (30) day period or such later date as is specified in such notice of termination. Xploritas may terminate the subscription for the cause if the Client becomes the subject of a petition of bankruptcy or another proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
c. Automatic Renewal. Subscriptions are automatically renewed until terminated by the Client. The client can terminate monthly.
a. These terms and conditions shall be construed and governed exclusively by the laws of Switzerland, without regard to its conflicts of laws.
b. Xploritas reserves the right to amend the terms and conditions. The Client shall be informed of such amendments by email or through the information being made available on https://www.xploritas.com. The Client shall be deemed to have received such notice within two (2) weeks of the notice being sent by email or made available on the above-mentioned website. Where the Client does not accept the amendment, the Client shall be entitled, within thirty (30) calendar days from the date of dispatch of the email or, where appropriate, thirty (30) calendar days from the amendment being published on the above-mentioned website, provided that the changes have an adverse effect, that could not be considered as minor, on the Client, to terminate the subscription with immediate effect. Where the subscription is not terminated by the Client within the time, the Client shall be deemed to have accepted the new terms and conditions.
c. Neither party may assign the subscription, or its rights or duties hereunder, to any third party, in whole or in part.
d. The provisions of these terms and conditions are severable. If any one provision is held to be invalid, the invalid provision will be replaced by a valid clause coming closest to the invalid clause’s intention. No failure or delay by a party in enforcing any right under these terms and conditions shall constitute a waiver of that right.
e. These terms and conditions have been prepared in the English language and the same shall be controlling in all respects. Any non-English versions of these terms and conditions are provided solely for accommodation purposes. These terms and conditions constitute the entire, exclusive, and final statement of the terms and conditions with respect to this subject matter and supersedes all prior and contemporaneous representations. There are no intended third-party beneficiaries under these terms and conditions.
f. These terms and conditions are executed electronically.
g. Except for the Client’s obligations to make payments as set forth in these terms and conditions and each party’s obligations related to confidentiality, each party shall be excused from performance for any period during which, and to the extent that, it or its subcontractor(s) is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control and without its fault or negligence. Such acts shall include, without limitation acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental laws, and regulations imposed after the fact, fire, communication line failures, power failures, earthquakes, floods, or other natural disasters (a “Force Majeure Event”). Delays in delivery or in meeting completion dates due to Force Majeure Events shall automatically extend such dates for a period equal to the duration of such events.
a. Application of availability. Provided that the Client remains current in its payment obligations to Xploritas as set forth in these terms and conditions, the Client shall have the right to the availability provisions set forth herein.
b. Scheduled Downtime. The Application may be inaccessible to the Client during Scheduled Downtime as published on https://www.xploritas.com. Xploritas reserves the right to change the Scheduled Downtime to other non-business hours. Scheduled Downtime shall not be considered times when the Application is Unavailable.
c. Exceptions to “Unavailability”. In addition to Scheduled Downtime, any period in which the Client is unable to use the Application due to the conduct of the Client or any circumstances outside of the control of Xploritas or its third-party providers, including but not limited to the following, shall not be considered times when the Application is Unavailable:
i. Outages resulting from the Client’s equipment and/or third-party equipment not within the sole control of Xploritas.
ii. No access to the Internet by the Client.
iii. Other activities the Client directs, denial of service attacks, natural disasters, changes resulting from government, political, or other regulatory actions or court orders, strikes or labour disputes, acts of civil disobedience, acts of war, and other Force Majeure items.
iv. The Client’s negligence or breach of its material obligations under these terms and conditions.
v. Lack of availability or untimely response time of the Client to respond to incidents that require its participation for source identification and/or resolution.
d. Target System Availability. The “Target System Availability Level” is the Application Availability Level that Xploritas plans to meet or exceed during each quarter. The “Application Availability Level” is the number of hours during a particular period that the Application was Available to the Client, excluding Scheduled Downtime (as defined above), divided by the total number of hours during such period (as measured at the end of such period) excluding Scheduled Downtime (as defined above). The Target Application Availability Level is 99.5% in any calendar quarter.
