Terms of Use

End User Agreement

BY USING ALL OR ANY PORTION OF X-ANALYTICS, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS LEGALLY BINDING BETWEEN YOU AND SECURE SYSTEMS INNOVATION CORPORATION (SSIC). IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT USE THE X-ANALYTICS APPLICATION. IF YOU WISH TO USE THE X-ANALYTICS APPLICATION AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT AND AUTHORITY TO DO SO.

This End User Agreement (“Agreement”) is between Secure Systems Innovation Corporation (hereafter “SSIC”), owner of the X-Analytics Application (as defined below) and the customer (individual or entity) that has procured the access to the X-Analytics Application (as defined below) for use as an end user (“you”).

Definitions

Affiliate: means each legal entity that is directly or indirectly controlled by you on or after the Effective Date and for so long as such entity remains directly or indirectly controlled by you (where “controlled” means the ownership of, or the power to vote, directly or indirectly, a majority of any class of voting securities of a corporation or limited liability organization, or the ownership of any general partnership interest in any general or limited partnership).
Authorized Partner: means any of SSIC’s authorized resellers, business partners, distributor, or OEM.
Authorized User: means those uniquely identified individuals who are authorized by you to use the X-Analytics Application regardless of whether those individuals are actively using the X-Analytics Application at any given time. Rights granted on an Authorized User basis may be reassigned between uniquely identified individuals over time but may not be reassigned so frequently as to enable the sharing of a single user seat between multiple users.
Contractor: means those independent third parties who perform services related to this Agreement for you, but solely to the extent they are acting on your behalf.
Customer Data: means data generated by you or your Authorized User and used by or imported into the X-Analytics Application.
Documentation: means any supporting product or related services help and technical specifications documentation provided by SSIC with the X-Analytics Application to you.
Effective Date: means the date of your first Ordering Document or the initial date granted access to the X-Analytics Application (whichever is earlier).
Ordering Document: means any order on an SSIC or Authorized Partner order form which references this Agreement. Each Ordering Document which references this Agreement shall be deemed a part of this Agreement.
Service Term: means the X-Analytics Application service term specified on the applicable Ordering Document or by an Authorized Partner. The Service Term may be a fixed term, a limited term for Evaluation Versions, or perpetual.
X-Analytics Application means the proprietary X-Analytics application, modules, and components that power service offerings in connection with this Agreement (or as otherwise specified in any related Ordering Document), as more fully described in the Documentation. “X-Analytics Application” shall also include any Support and Maintenance Services releases provided to you under this Agreement. Unless otherwise noted, the X-Analytics Application and Documentation are referred to collectively herein as “X-Analytics Application.”

Grant of Access

Subject to all of the terms and conditions of this Agreement, and except as set forth in Section 6 (Term and Termination), during the applicable Service Term, SSIC grants you a limited, worldwide, non-transferable, non-sublicensable, non-exclusive right to access and use the X-Analytics Application for which you have procured from SSIC or an Authorized Partner, but only in accordance with the applicable Ordering Document: and the number of Authorized Users (as applicable), as mutually agreed upon by you, SSIC, and an Authorized Partner. You may allow your Contractors and Affiliates to use the X-Analytics Application in accordance with this Agreement, provided you shall remain liable for all acts and omissions of your Affiliates and Contractors as if their acts or omissions were your own.

Usage Restrictions

As a condition of your use of the service, you shall not (and shall not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer the X-Analytics Application or Third Party Code or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the X-Analytics Application by any means whatsoever; (b) distribute, sell, sublicense, rent, lease or use the X-Analytics Application; (c) remove any product identification, proprietary, copyright trademark, service mark, or other notices contained in the X-Analytics Application; (d) modify any part of the X-Analytics Application, create a derivative work of any part of the X-Analytics Application or incorporate the X-Analytics Application into or with other software or applications, except to the extent expressly authorized in writing; (e) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the X-Analytics Application; (f) utilize any equipment, device, software, or other means designed to circumvent or remove any form of copy protection used by SSIC in connection with the X-Analytics Application, or use the X-Analytics Application together with any authorization code, Product Key, serial number, or other copy protection device not supplied by SSIC or through an Authorized Partner; (g) use the X-Analytics Application to develop a product which is competitive with any SSIC product offerings; (h) assert, nor will you authorize, assist or encourage any third-party to assert, against SSIC or any of its affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Application or Support and Maintenance or Professional Services you have purchased or used hereunder

Ownership

Notwithstanding anything to the contrary contained herein, except for the limited usage rights expressly provided herein, SSIC has and will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the X-Analytics Application, Third Party Code, Deliverables, and all copies, modifications and derivative works thereof (including any changes which incorporate any of your ideas, feedback or suggestions). You acknowledge that you are obtaining only a limited access right to the X-Analytics Application and Third Party Code and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise.

Payment

You shall pay all fees associated with the X-Analytics Application service and any services purchased hereunder as set forth in the applicable Ordering Document. All payments shall be made in the currency noted on the applicable Ordering Document on the date as stated within the applicable Ordering Document. Except as expressly set forth herein, all fees are non-refundable once paid. If any withholding tax is required by applicable law to be paid by you in relation to payments due to SSIC or Authorized Partner hereunder, you will provide SSIC or Authorized Partner (as applicable) with official receipts and/or certificates from the appropriate taxing authorities to establish that any applicable taxes have been paid.

Term and Termination

Term of Service. Your access to the X-Analytics Application expires at the end of the applicable Service Term. Service Terms may be renewed if mutually agreed by the parties in an Ordering Document.
Term of Agreement. This Agreement commences on the Effective Date and expires at such time as all Service Terms and service subscriptions hereunder have expired in accordance with their own terms (the “Term”). Either party may terminate this Agreement according to the provisions of the applicable Ordering Documents
Termination. Upon any expiration or termination of this Agreement, you shall cease any and all use of any Analytics, destroy all copies thereof and so certify to SSIC in writing, and immediately pay any outstanding fees due hereunder.

Disclaimer of Warranties

THE X-ANALYTICS APPLICATION IS PROVIDED TO YOU "AS IS, AS AVAILABLE" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SSIC, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, SSIC PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE X-ANALYTICS APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED
WITHOUT LIMITING THE FOREGOING, NEITHER SSIC NOR ANY SSIC PROVIDER MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED:
1. (I) AS TO THE OPERATION OR AVAILABILITY OF THE SSIC X-ANALYTICS APPLICATION, OR THE INFORMATION, CONTENT, THE X-ANALYTICS APPLICATION, AND MATERIALS OR PRODUCTS INCLUDED THEREON;
2. (II) THAT THE X-ANALYTICS APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE;
3. (III) AS TO THE ACCURACY, RELIABILITY, OR CURRENCY OF ANY INFORMATION OR CONTENT PROVIDED THROUGH THE X-ANALYTICS APPLICATION;
4. OR (IV) THAT THE X-ANALYTICS APPLICATION, ITS SERVERS, THE CONTENT, OR E-MAILS SENT FROM OR ON BEHALF OF SSIC ARE FREE OF VIRUSES, SCRIPTS, TROJAN HORSES, WORMS, MALWARE, TIMEBOMBS OR OTHER HARMFUL COMPONENTS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
YOU AGREE THAT SSIC ASSUMES NO RESPONSIBILITY FOR ANY CONTENT YOU SUBMIT, UPLOAD, CREATE OR MAKE AVAILABLE THROUGH THE X-ANALYTICS APPLICATION.
IS NOT LIABLE FOR THE ACTS OR OMISSIONS OF ITS CONTRACTORS, VENDORS AND SERVICE PROVIDERS.

Limitation of Liabilities

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SSIC OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:

PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OR CORRUPTION DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES;
DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE GREATER OF (i) THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION AND (ii) ONE HUNDRED DOLLARS (U.S.). THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR SSIC WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

SSIC DOES NOT GUARANTEE THE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE X-ANALYTICS APPLICATION, SSIC SERVICES, OR ANY RELATED SERVICES. THE OPERATION OF THE X-ANALYTICS APPLICATION MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE THE CONTROL OF SSIC. UNDER NO CIRCUMSTANCES SHALL SSIC BE LIABLE FOR ANY DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE X-ANALYTICS APPLICATION, INCLUDING BUT NOT LIMITED TO RELIANCE BY YOU ON ANY INFORMATION OBTAINED FROM THE X-ANALYTICS APPLICATION OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO SSIC RECORDS, PROGRAMS, OR SERVICES. USER HEREBY ACKNOWLEDGES THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT, DATA, AND INFORMATION SUBMITTED THROUGH THE X-ANALYTICS APPLICATION AND YOU TO THE X-ANALYTICS APPLICATION.

Indemnification

Use of Confidential Information. Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software or application (including X-Analytics Application), pricing, documentation or technical information provided by SSIC (or its agents), performance information relating to the X-Analytics Application, and the terms of this Agreement shall be deemed Confidential Information of SSIC without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not disclose any Confidential Information to anyone other than its affiliates, employees and consultants (“Representatives”) who have a need to know and who agree in writing to keep the information confidential on terms no less restrictive than those contained in this Agreement. Both SSIC and Organization will ensure that their respective Representatives comply with this Agreement and will be responsible for any unauthorized use or disclosure of Confidential Information by such Representatives. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and 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 seek appropriate equitable relief in addition to whatever other remedies it might have at law.

Data Privacy

At SSIC, we place the highest importance on respecting and protecting the privacy of our customers. Our most important asset is our relationship with you. We want you to feel comfortable and confident when using our products and services and with entrusting your information to us. To contact us with a question, contact us at privacy@x-analytics.com. You are responsible for protecting the information on your computer such as by installing anti-virus software, updating your software, password protecting your files, and not permitting third party physical or electronic access to your computer.

Export Compliance

You acknowledge that the X-Analytics Application is subject to United States export control and economic sanctions laws, regulations, and requirements, and to import laws, regulations, and requirements of foreign governments. You agree that (1) all use, exports, and imports related to this Agreement will be in compliance with these laws and regulations and (2) you shall not allow any third party to export, re-export, or transfer any part of X-Analytics Application in violation of these laws and regulations. The foregoing obligations include but are not limited to you or a third party exporting, transferring, or importing the X-Analytics Application to: (a) to any country subject to export control embargo or economic sanctions implemented by any agency of the U.S. or foreign governments; (b) any person or entity on any of the U.S. Government’s Lists of Parties of Concern (http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-ofconcern) or applicable international specially-designated parties or economic sanctions programs; (c) to any end-user for any known end use related to the proliferation of nuclear, chemical or biological weapons or missiles, without first obtaining any export license or other approval that may be required by any U.S. Government agency having jurisdiction with respect to the transaction; or (d) otherwise in violation of any export or import laws, regulations or requirements of any United States or foreign agency or authority.

General

Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. SSIC may assign this Agreement to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of SSIC’s assets or voting securities. You may not assign or transfer this Agreement, in whole or in part, without SSIC’s written consent except that you may assign your rights and obligations under this Agreement, in whole but not in part, without SSIC’s written consent in connection with any merger, consolidation, sale of all or substantially all of your assets, or any other similar transaction provided that: (a) the assignee is not a direct competitor of SSIC; (b) you provide prompt written notice of such assignment to SSIC; (c) the assignee is capable of fully performing your obligations under this Agreement; and (d) the assignee agrees to be bound by the terms and conditions of this Agreement. Any attempt to transfer or assign this Agreement without such written consent will be null and void.
Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the State of Delaware, without regard to any conflict or choice of law provisions that may apply in any jurisdiction. The parties agree that the proper venue for any dispute regarding this Agreement will be within the Commonwealth of Virginia and within 50 miles of Arlington, Virginia, or, in the event that federal jurisdiction applies, the United States Court for the Eastern District of Virginia, Alexandria Division.
Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Notwithstanding the foregoing, if you have entered into a separate written service agreement signed by SSIC for use of the X-Analytics Application, the terms and conditions of such other agreement shall prevail over any conflicting terms or conditions in this Agreement.
Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
Authorized Partner. If you received the X-Analytics Application under an agreement (“Partner Agreement”) with an authorized X-Analytics reseller, business partner, distributor, or OEM (“Authorized Partner”) then, notwithstanding anything to the contrary in this Agreement: (a) your use of the X-Analytics Application is subject to any additional terms in the Partner Agreement, including any limitations on use of the X-Analytics Application in conjunction with third-party applications; and (b) you agree to pay the Authorized Partner the fees agreed in the Partner Agreement and you have no direct payment obligations to SSIC for that purchase under Section 5 above. If your warranty and limitation of liability terms stated in your Partner Agreement are different than what is stated in Section 7 or 8 herein, then SSIC has no warranty or liability obligations to you under this Agreement. If your warranty and liability terms passed on in your Partner Agreement are as stated herein, then Section 7 and 8 shall apply to you as written. Notwithstanding anything in this Agreement to the contrary, (i) the Partner Agreement may not modify any of the remaining terms of this Agreement and (ii) the Partner Agreement is between you and the Authorized Partner and is not binding on SSIC. SSIC may terminate this Agreement (including your right to use the X-Analytics Application) in the event SSIC fails to receive payment for your use of the X-Analytics Application from the Authorized Partner or if you breach any term of this Agreement.

This End user agreement is hereby entered into by the Parties as of the date accepted by you.