Website Terms of use

Welcome to the XMPie’s web services on www.xmpie.com (the “Website“), an online resource for information, activities, products and services related to XMPie Inc. and/or XMPie Ltd. (“XMPie“, “We” and “Our“).

Please carefully read the following terms and conditions. By using and accessing the Website, and the content and services contained therein, you agree to be bound by these terms of use (the “Terms“, or the “Terms of Use“) including any other document incorporated thereto. If you do not agree to be bound by the Terms, you may not access or use the Website.

These Terms apply to the use of the Website, the services and content included therein by any computer or other communication means (such as cellular phones, PDA’s, etc.). These Terms further apply to use of the Website via the Internet network or any other communication networks.

Acceptable use of the Website

The following terms define the acceptable use of the Website and the services available through the Website (the “Services“). Subject to the Terms of Use, you may access and use the content and Services on the Website. You may not use the content and the Services otherwise, unless XMPie provided you with explicit, prior, written permission.

You agree that you are solely responsible for all acts or omissions associated with your access and use of the Website and the access and use of the Website by anyone on your behalf. While using the Website, you agree to refrain from willfully, or carelessly –

Breaching the Terms or any other applicable rules and instructions that We may convey with respect to the use of the Website and any part thereof;
Interfering with, burdening or disrupting the functionality of the Website;
Circumventing or manipulating the operation, or functionality of the Services;
Posting false, inaccurate, or misleading content;
Using or launching any automated system, including, without limitation, robots, crawlers and similar applications to collect and compile content from the Website, for the purposes of competing with XMPie, or in such ways that might impair or disrupt the Website’s functionality;
Displaying the Website or any part thereof in an exposed or concealed frame, or linking to elements on the Website, such as images, independently from the web pages on which they originally appear;
Displaying content from the Website, including by any software, feature, gadget or communication protocol, which alters the content or its design;
Impersonating any person or entity, or making any false statement pertaining to your identity, employment, agency or affiliation with any person or entity;
Collecting, harvesting, obtaining or processing personal information of or about other users, without their explicit consent;
Abusing, harassing, threatening, impersonating or intimidating other users;
Linking to the Website from web pages that contain pornographic content or content that encourages racism or wrongful discrimination;
Violating any applicable local, state, national or international law, statute, ordinance, rule or regulation.

User generated content on the Website

We offer you certain Services and ways to use content on the Website, whether your own content or of other users (such as public comments). You may upload or otherwise make your content available when using the Website (for convenience purposes We will name all of these actions as “Post” or “Posting“).

We do not warrant or guarantee that any content that you wish to Post on the Website will be posted or that We will Post it indefinitely.

We encourage free speech and open discussion on the Website. Users may Post comments and content, in some sections of the Website, such as “XMPie blogs”. You may find some of the comments Posted therein inaccurate, unhelpful, objectionable, annoying, improper, unlawful or immoral. We do not endorse any user generated content and its publication does not attest to Our acceptance of it.

By Posting content on the Website, you accept, and are fully accountable for any consequences resulting from Posting the content. You must ensure that such content and its use on the Website are lawful. Among other things, you must not Post any content, which may reasonably be deemed as –

Infringing or violating intellectual property rights of other parties, including patents, copyrights, trademarks, service marks and trade secrets;
Identifying minors, their personal details or their address and ways to contact them;
Software viruses, Trojan Horses, Worms, Vandals, Spyware and any other Malicious Applications or harmful computer code;
Passwords, user names and other details enabling the use of computer software, digital files, Internet sites or services, requiring registration or charge, without such payment or registration;
Encouraging, supporting, assisting, providing instructions or advising in the committing of a criminal offense, under the applicable laws;
Constituting defamation of a person or violating a person’s right for privacy or right of publicity;
Commercial content, including advertisements, sponsorships, solicitations, endorsements and public relations material which is not related to XMPie and/or its products, unless you received Our prior consent, and subject to the terms of such consent;
Prohibited by any applicable law, including court restraining orders, to be Posted, published, disseminated, or otherwise made available to the public;
Threatening, abusive, harassing, defamatory, libelous, vulgar, obscene or racially, ethnically or otherwise objectionable;
Unsolicited commercial communications (‘SPAM’), chain letters or pyramid schemes;
Misleading a consumer.

We may review posted content and delete, remove or block it, or refuse to Post it on the Website, without any prior notice, in Our sole discretion, for any reason that We may consider to be justified, including, without limitation –

To prevent misuse of the Services;
To enable civilized discussions;
When We deem the content to be in breach of the Terms, or an infringement of any applicable law;
When the owner of content that you have Posted wishes it to be removed, whether as result of a person’s complaint, or of our own initiative.

Under no circumstances will any of the above be construed as an obligation on Our part to review, or monitor users’ content on the Website.

We may also delete content after a certain period of time from initial Posting. Consequently, you might not find content that you or any other user previously Posted on the Website. Should We decide to publish any content that you Posted on the Website – We may edit such content, at Our sole discretion, including shortening it.

Unless otherwise written, the content you Post to the Website will be available to all Internet users. Please exercise caution and common sense when submitting personal details or any other sensitive or confidential information.

Registration and user account

The Website serves all Internet users. However, certain Services such as XMPie Circle or the XMPie Customer Portal, may be available to registered users only.

When you register with the Website, or while completing Our online contact forms, We will ask you to provide certain contact and personal details. You must submit only true, accurate and complete details. Bear in mind that false, incorrect or outdated information may prevent you from registering and impair Our ability to provide you with the Services, and contact you. We will explicitly indicate the fields for mandatory completion. If you do not enter the requisite data in these fields, you will not be able to register with the Website or complete the contact forms. We will only use your personal details in accordance with Our Privacy Policy which is incorporated by reference to the Terms.

If you use a username and password to log-in to certain Services on the Website, you agree to maintain your username and password in absolute confidentiality and refrain from disclosing them to others. Make sure that you change your password frequently and at least once every six months.

You are fully accountable for any outcome resulting from your failure to provide true, accurate and complete details in the course of the registration or form completion process, and for any use or misuse of your account on the Website as a result of conveying your details to someone else.

We may deny, or cancel your account, for any reason, at any time and at Our sole discretion. We may notify you that We canceled your account by sending you a message, to the e-mail address that you provided during the registration process. The cancellation will go into effect on the date stated in the message. Such notification may go into effect immediately. In addition, notwithstanding any remedies that may be available to XMPie under any applicable law, We may temporarily or permanently deny, limit, suspend, or terminate your account, prohibit you from accessing the Website or any part thereof, remove content that you have Posted on the Website and take technical and legal steps to keep you off the Website, if We believe that –

You have abused your rights to use the Website or the Services; or,
You have breached the Terms; or,
You deliberately submitted false information; or,
You have performed any act or omission that violates any applicable law, rules, or regulations; or,
You have performed any act or omission which is harmful or likely to be harmful to XMPie, or any other third party, including other users and partners of XMPie; or,
You made use of the Services to perform an illegal act, or for the purpose of enabling, facilitating, assisting or inducing the performance of such an act; or,
You conveyed your password to another person or entity; or,
You have failed to pay for fee based Services, available on the XMPie Circle (see below); or
You have abandoned your account.

Downloads

Some areas of the Website may include downloadable materials (the “Materials”). You must treat such materials as follows –

Unless otherwise specified under these Terms or on the Website, you may download one copy of the Materials on any single computer or device for your personal and/or non-commercial use only, provided you keep intact all copyright and other proprietary notices; and,
Materials available for download through Restricted Areas or the Customer Portal including, but not limited to, software and documentation, may be downloaded and used only subject to the specific terms and conditions and license provisions applicable to each of these Materials.

XMPie Circle

As part of the Website’s Services, XMPie has established the XMPie Circle (also referred to as the “Circle“) as an interactive, digital storyboard used to help visualize and plan individualized customer communications campaigns. The Circle is available to end customers and requires registration. Certain services (hereinafter referred to as the “Circle services”), are accessible only to registered users who purchased a subscription. You may use Circle services subject to the limitations, as published in the XMPie Circle.

The subscription may be limited to a certain time period and may include additional limitations, inter alia the extent of content that the subscriber may access through the Services.

Payment for the Circle services will be charged in advance for the full subscription period. All fees are quoted in U.S. Dollars, unless expressly stated otherwise and will be published on the Website and on XMPie’s quoting tools. You must pay the fees in the currency indicated in the payment terms. Payments will include sales tax, value added tax, or any other tax, as applicable to your transaction.

You agree to pay all fees and taxes in a timely manner and reimburse XMPie for any interest and collection costs that may result from overdue payments.

Subscription fees are not refundable.

From time to time, XMPie may change the availability of the Circle services and the available payment means and methods. XMPie will post a notice in the XMPie Circle accordingly.

Links to other sites

The Website may contain links to content published on other websites or external sources, provided by third parties. We do not operate, or monitor these websites and content. You may find them or the information and content posted therein not compatible with your requirements, or you may object to their content, or find such content to be annoying, improper, unlawful or immoral. By linking to a certain website, We do not endorse, or sponsor its content, or confirm its accuracy, credibility, authenticity, reliability, validity, integrity, or legality. We assume no responsibility or liability for such third party websites or content, or their availability.

Privacy

We respect your privacy. Our Privacy Policy explains the accepted privacy practices on the Website. The Privacy Policy is incorporated by reference to the Terms.

Intellectual property

All rights, title and interest in and to the Website (except – as provided below with respect to users’ and third parties’ content), including, without limitation, patents, copyrights, trademarks, trade names, service marks, trade secrets and other intellectual property rights, and any goodwill associated therewith, are owned by, or licensed to XMPie. The Terms do not grant you any rights to patents, copyrights, trademarks (whether registered or unregistered), trade names, trade secrets, domain names or any other rights, functions or licenses with respect of the Website or any of the content included therein.

Unless otherwise expressly permitted in the Terms, you may not copy, distribute, display or perform publicly, sublicense, decompile, disassemble, reduce to human readable form, execute publicly, make available to the public, adapt, make commercial use, process, compile, translate, sell, lend, rent, reverse engineer, combine with other software, modify or create derivative works of any of the content on the Website, which is subject to intellectual property rights or other proprietary rights, either by yourself or by a third party on your behalf, in any way or by any means, including, but not limited to electronic, mechanical or optical means, without prior written authorization from XMPie.

You may not adapt or otherwise use any name, mark or logo that is identical, or confusingly similar to any of Our trademarks, service marks and logos. You must avoid any action or omission that may dilute, or tarnish Our goodwill. Trademarks and advertisements of XMPie on the Website are the exclusive property of XMPie.

We do not claim ownership to content that you Post on the Website. However, when you do so, you represent and warrant that you are the rightful owner of all rights to that content or that you are licensed by the rightful owners to Post and use such content on the Website, in accordance with the Terms.

By submitting content, including data, images, sounds, text, ideas, concepts, know-how, or techniques for Posting on the Website, and including any and all communications that you make with other users on or through the Website, you grant XMPie a royalty-free, worldwide, non-exclusive, perpetual and irrevocable license, to copy, distribute, display publicly, decompile, disassemble, reduce to human readable form, execute publicly, make available to the public, adapt, sub-license, make commercial use, process, compile, translate, sell, lend, rent, reverse engineer, combine with or incorporate into other content, modify and create derivative works on the Website, and in other communication and information networks, platforms, applications and services. You further waive all rights of attribution with respect to the use of your content.

XMPie respects the intellectual property rights of others. If you believe that certain content published on the Website infringes upon your rights, you may contact us by using the ‘Contact Us’ form on the Website, and We will do our best to provide a prompt response to your complaint.

DISCLAIMER OF WARRANTY

XMPIE PROVIDES THE WEBSITE AND THE SERVICES AND CONTENT INCLUDED THEREIN FOR USE ON AN “AS IS” AND “AS AVAILABLE” BASIS. THEY CANNOT BE CUSTOMIZED TO FULFILL THE NEEDS OF EACH AND EVERY USER. XMPIE DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, COMPATIBILITY, PERFORMANCE, SECURITY OR ACCURACY. XMPIE DOES NOT WARRANT THAT THE WEBSITE WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER, OR THAT IT WILL ALWAYS BE AVAILABLE OR FREE FROM ALL HARMFUL COMPONENTS. YOU AGREE AND ACKNOWLEDGE THAT THE USE OF THE WEBSITE IS ENTIRELY, OR AT THE MAXIMUM PERMITTED BY THE APPLICABLE LAW, AT YOUR OWN RISK.

CORRECT PROFESSIONAL COUNSEL DEPENDS ON THE EXACT CIRCUMSTANCES OF EACH AND EVERY CASE. THE CONTENT ON THE WEBSITE IS NOT A SUBSTITUTE TO SUCH COUNSEL. THIS IS TRUE ESPECIALLY AND IN PARTICULAR FOR THE CONTENT POSTED IN COMMUNITIES AND BLOGS. SUCH CONTENT IS NOT A SUBSTITUTE FOR PROFESSIONAL COUNSEL AND CARE, WHERE SUCH ARE REQUIRED. SUCH CONTENT MAY SOMETIMES REFLECT A CERTAIN APPROACH OR PERSONAL OPINION OF THE WRITER. THEREFORE IT SHOULD BE TREATED WITH THE NECESSARY CAUTION. IF YOU DECIDE TO RELY UPON THE CONTENT POSTED ON THE WEBSITE OR TO ACT THEREUPON, YOU BEAR THE FULL AND SOLE RESPONSIBILITY FOR YOUR ACTIONS AND, ANY POSSIBLE CONSEQUENCES.

LIMITATION OF LIABILITY

XMPIE, INCLUDING ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS AND AGENTS WILL NOT BE LIABLE TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGE, OR ANY OTHER DAMAGE, AND LOSS (INCLUDING LOSS OF PROFIT AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT, CONTRACTUAL, OR IN ANY OTHER FORM OF LIABILITY, ARISING FROM, OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE THE WEBSITE OR ANY OF THE SERVICES THEREIN, OR FROM ANY FAILURE, ERROR, OR BREAKDOWN IN THE FUNCTION OF THE WEBSITE, OR FROM ANY FAULT, OR ERROR MADE BY OUR STAFF OR ANYONE ACTING ON ITS BEHALF, OR FROM YOUR RELIANCE ON POSTED CONTENT ON THE WEBSITE, OR FROM ANY COMMUNICATION WITH THE WEBSITE, OR WITH OTHER USERS ON OR THROUGH THE WEBSITE, OR FROM ANY DENIAL OR CANCELLATION OF YOUR USER ACCOUNT, OR FROM RETENTION, DELETION, DISCLOSURE AND ANY OTHER USE OR LOSS OF YOUR CONTENT ON THE WEBSITE. IN ANY EVENT, YOUR SOLE REMEDY WILL BE LIMITED TO CORRECTING SUCH ERRORS, OR MALFUNCTIONS, AND IN ACCORDANCE WITH THE RELEVANT CIRCUMSTANCES.

Indemnification

You agree to indemnify, defend and hold harmless XMPie, its managers, directors, shareholders, employees, sub-contractors, affiliates, agents and anyone acting on their behalf, at your own expense and immediately after receiving written notice from XMPie, from and against any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, resulting from any complaint, claim, or demand, arising from or related to your breach of the Terms, or any other terms, rules or regulations applicable to the Website, or your violation, or infringement of other persons’ rights.

Changes in the Website

From time to time, we may change the Website’s layout, design or display, as well as the scope and availability of the content and Services accessible therein, without giving prior notice. By their very nature, changes of this type may cause inconvenience or even malfunctions at first. You agree and acknowledge that We do not assume any responsibility with respect to, or in connection with the introduction of such changes or from any malfunctions or failures that may result therefrom.

Availability

The availability and functionality of the Website depends on various factors and elements, including software, hardware and communication networks. Third parties provide some of these elements. None of these factors are fault free. We do not warrant or guarantee that the Website will operate without disruption, errors or interruptions, or that it will be accessible, or available at all times, or immune from unauthorized access or error free.

Termination of operation

At all times, XMPie may terminate the operation of the Website, or any part thereof, either temporarily or permanently. We will publish a termination notice, reasonable time prior to the termination of the Website. XMPie will maintain backup copies of the content on the Website for an additional reasonable amount of time, and afterwards will be entitled to delete the content without maintaining any backup copy thereof and without giving additional notice. You agree and acknowledge that XMPie does not assume any responsibility with respect to, or in connection with the termination of the Website’s operations and loss of any data as a result.

Governing law and jurisdiction

These Terms and your use of the Website will be governed by and construed in accordance with the laws of the State of New York, USA, excluding any otherwise applicable rules of conflict of laws, which would result in the application of the laws of a jurisdiction other than the State of New York.

The New York State Courts located in New York County and the U.S. District Court for the Southern District of New York shall have sole and exclusive jurisdiction over you and the Company and the subject matter of these Terms. Each party hereby expressly consents to personal jurisdiction in New York and expressly waives any right to object to such personal jurisdiction or the convenience of such forum.

Amendments to the Terms

From time to time, XMPie may change the Terms. Substantial changes will take effect 30 days after XMPie has posted an initial notification on the Service’s homepage or on any other relevant web pages on the Services, with respect to such changes. Other changes will take effect 7 days after their initial posting on the Service, unless XMPie amends the Terms to comply with legal requirements. In such cases, the amendments will become effective immediately upon their initial posting, or as required.

You agree to be bound by any of the changes made in the Terms, including changes to any and all documents, forms and policies incorporated thereto. Continuing to use the Website will indicate your acceptance of the amended terms. If you do not agree with any of the amended terms, then you must refrain from any further use of the Website.

Interpretation

The section headings in the Terms are included for convenience only and will take no part in the interpretation or construction of the Terms.

Severability

If any provision of the Terms is held to be illegal, invalid, or unenforceable by a competent court, then the provision will be performed and enforced to the maximum extent permitted by law, and the remaining provisions of the Terms will continue to remain in full force and effect.

Survival

The provisions of the Intellectual Property, Disclaimer of Warranty, Limitation of Liability and Indemnification Sections, will survive the termination or expiration of the Terms or the termination of the Website’s operation.

Correction of errors

We put forth great effort in ensuring the reliability of facts and information that We Post on the Website. However, errors may sometimes occur. If you think that any information or publication that We have Posted on the Website is erroneous, contact us by using the ‘Contact Us’ form on the Website.

Contact us

XMPie respects the privacy and good reputation of the Website users. If you think that certain Posting or content published on the Website harms or offends you in any way, please email us at info@xmpie.com and we will do our best to provide a prompt response to your complaint.

Last Updated: September 12, 2013