Last updated: May 15, 2023
These Terms of Use (these "Terms") constitute the entire agreement between you and xMentium Inc. ("xMentium", "us", "our", and "we") regarding the use of all websites and products owned and administered by xMentium Inc. (the "Sites"), unless you enter into a separate commercial agreement with xMentium for use of the Sites.
All websites are copyrighted works belonging to xMentium. Certain features of the Sites may be subject to additional guidelines, terms, or rules, which will be posted on the Sites in connection with such features, or contained in a separate commercial agreement between you and xMentium. All such additional terms, guidelines, and rules are incorporated by reference into these Terms.
These Terms set forth the legally binding terms and conditions that govern your use of the Sites. By accessing or using the Sites, you are accepting these terms (on behalf of yourself or the entity that you represent), and you represent and warrant that you have the right, authority, and capacity to enter into these terms (on behalf of yourself or the entity that you represent). You may not access or use the Sites or accept the terms if you are not at least 18 years old. If you do not agree with all of the provisions of these terms, do not access and/or use the Sites.
1. Accounts
1.1 Account Creation In order to use certain features of the Sites, you must register for an account ("Account") and provide certain information about yourself as prompted by the account registration form, or access the Sites using your organization's identity provider. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Sites. xMentium may suspend or terminate your Account in accordance with Section 6.
1.2 Account Responsibilities You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify xMentium of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. xMentium cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
1.3 Account Security xMentium will implement and maintain appropriate administrative, physical, and technical security measures designed to protect the security, confidentiality, and integrity of, and prevent the unauthorized disclosure of, your data.
2. Access to the Sites
2.1 License Subject to these Terms, xMentium grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Sites.
2.2 Certain Restrictions The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Sites, whether in whole or in part, or any content displayed on the Sites; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Sites; (c) you shall not access the Sites in order to build a similar or competitive websites, product, or service; and (d) except as expressly stated herein, no part of the Sites may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Sites shall be subject to these Terms. All copyright and other proprietary notices on the Sites (or on any content displayed on the Sites) must be retained on all copies thereof.
2.3 Modification xMentium reserves the right, at any time, to modify, suspend, or discontinue the Sites (in whole or in part) with or without notice to you. You agree that xMentium will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Sites or any part thereof.
2.4 Ownership You acknowledge that all the intellectual property rights, including copyrights, patents, trade marks, and trade secrets, in the Sites and its content are owned by xMentium or xMentium's suppliers. Neither these Terms (nor your access to the Sites) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. xMentium and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
2.5 Your Data Data you provide to the Sites is exclusively owned by you. You grant xMentium a non-exclusive, worldwide, royalty-free license to host, copy, use, display and transmit data you provide to the Sites as appropriate for xMentium to provide and ensure proper operation of the Sites.
2.5 Feedback If you provide xMentium with any feedback or suggestions regarding the Sites ("Feedback"), you hereby assign to xMentium all rights in such Feedback and agree that xMentium shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. xMentium will treat any Feedback you provide to xMentium as non-confidential and non-proprietary. You agree that you will not submit to xMentium any information or ideas that you consider to be confidential or proprietary.
3. Indemnification
You agree to indemnify and hold xMentium (and its officers, employees, and agents) harmless, including costs and attorneys' fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Sites, (b) your violation of these Terms or (c) your violation of applicable laws or regulations. xMentium reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of xMentium. xMentium will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
4. Disclaimers
THE SITES IS PROVIDED ON AN "AS-IS" AND "AS AVAILABLE" BASIS, AND XMENTIUM (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
5. Limitation on Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL XMENTIUM (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SITES, EVEN IF XMENTIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THESE TERMS.
6. Term and Termination
You may terminate your use of the Sites at any time by discontinuing use of the Sites Subject to this Section, these Terms will remain in full force and effect while you use the Sites. We may suspend or terminate your rights to use the Sites (including your Account) at any time for any reason at our sole discretion, including for any use of the Sites in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Sites will terminate immediately. xMentium will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 2.2 through 5 and Sections 3 through 7.
7. General
7.1 Changes These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Sites. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Sites following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
7.2 Export The Sites may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from xMentium, or any products utilizing such data, in violation of the United States export laws or regulations.
7.3 Disclosures xMentium is located at the address in Section 8.8. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
7.4 Electronic Communications The communications between you and xMentium use electronic means, whether you use the Sites or send us emails, or whether xMentium posts notices on the Sites or communicates with you via email. For contractual purposes, you (a) consent to receive communications from xMentium in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that xMentium provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
7.5 Entire Terms These Terms constitute the entire agreement between you and us regarding the use of the Sites, unless you enter into a separate commercial agreement with xMentium for use the Sites. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word "including" means "including without limitation". If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to xMentium is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without xMentium's prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. xMentium may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
7.6 Copyright/Trademark Information. Copyright © 2023 xMentium Inc. All rights reserved. All trademarks, logos and service marks ("Marks") displayed on the Sites are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
7.7 Contact Information:
Privacy Officer
1800 Wazee Street, Suite 300 Denver, Colorado 80202
Telephone: 888-673-4285
Email: [email protected]