Terms Of Use - Exsurgo Ltd.

Axon app and Exsurgo Connect cloud service terms of use

Acceptance of Terms
1. These Terms of Use (Terms) apply to your use of the Axon App (App) and Exsurgo Connect cloud services (Cloud Service). By accessing and using the App or Cloud Services you agree to be bound by these Terms.
2. If you do not agree to these Terms, you are not authorized to access and use the App or Cloud Services, and you must immediately stop doing so.
Changes
1. We may change these Terms at any time by updating them on the App and Cloud Services. If we make changes, we will provide you with notice of such changes by any reasonable means, including by posting the updated Terms on the App or the Cloud Services or by sending an email to you at the most recent email address we have on file for you. Unless stated otherwise, any change takes effect immediately. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the App or Cloud Services, you agree to be bound by the changed Terms.
2. These Terms were last updated on 30th October 2023.
Definitions
1. In these Terms:
2. Confidential Information means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the provision and use of the App or Cloud Services. Our Confidential Information includes Technology and all associated Intellectual Property Rights owned by us (or our licensors), including the App and Cloud Services. Your Confidential Information includes your Data collected and stored on our servers.
3. Data means all data, content, and information (including personal information) that is collected using Axon.
4. Force Majeure means an event that is beyond the reasonable control of a party, excluding:
  a) an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
  b) a lack of funds for any reason
5. Intellectual Property Rights means all worldwide rights associated with
  a) patents and patent applications,
  b) copyrights, copyright registrations and moral rights,
  c) trade names, trademarks, service marks, domain names, trade dress and goodwill to and registrations and/or applications for all of the foregoing,
  d) trade secrets and know-how and
  e) all other intellectual property rights and proprietary rights, arising under the laws of any other state, country or jurisdiction.
6. Loss includes loss of profits, savings, revenue or data, and any other claim, damage, loss, liability and cost, including legal costs on a solicitor and own client basis
7. Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way
8. personal information means information about an identifiable, living person
9. personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us
10. Technology means all discoveries, inventions (whether or not protectable under patent laws), developments, improvements, works of authorship, software (in source code and object code format), information or data, know-how, ideas, mask works, trademarks, service marks, trade names, trade dress or other technology, intellectual property or results, including, without limitation, the Underlying System.
11. Underlying System means any network, system, software, data or material that underlies or is connected to the App or Cloud Services
12. We, us or our means Exsurgo Limited
Provision of the App and Cloud Services
1. We will use reasonable efforts to provide the App and Cloud Services:
  a) in accordance with these Terms and applicable local regulations and laws;
  b) exercising reasonable care, skill and diligence; and
  c) using suitably skilled, experienced and qualified personnel.
2. Our provision of the App and Cloud Services to you is non-exclusive. Nothing in these Terms prevents us from providing the App or Cloud Services to any other person.
3. It is possible that on occasion the Cloud Services may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. We will use reasonable efforts to publish on the App or via the Cloud Services and/or notify you by email advance details of any unavailability.
4. Through the use of web services and APIs, the Cloud Services interoperate with a range of third party service features. We do not make any warranty or representation on the availability of those features. If a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you. To avoid doubt, if we exercise our right to cease the availability of a third party feature, you are not entitled to any refund, discount or other compensation.
Your Obligations
1. You must keep your Username and Password secure and:
  a) not permit any other person to use your Username and Password, including not disclosing or providing it to any other person; and
  b) immediately notify us if you become aware of any disclosure or unauthorized use of your Username and password, by sending an email to: support@exsurgo.com
2. You must use the App and Cloud Services for lawful purposes only and must not copy, reproduce, translate, decompile, reverse-engineer, resell, modify, vary, sub-license, or otherwise deal in the App or Cloud Services except to the extent expressly permitted by applicable law.
3. You must not act in a way, or use or introduce anything (including any malware) that in any way compromises, or may compromise, the App, the Cloud Services or any Underlying System, or otherwise attempt to damage or interfere with the App, the Cloud Services or any Underlying System.
4. When accessing the Cloud Services, you must:
  a) not impersonate another person or misrepresent authorization to act on behalf of others or us;
  b) not attempt to view, access or copy any material or data other than:
  I. that which you are authorized to access; and
  II. to the extent necessary for you to use the Cloud Services in accordance with these Terms; and
  c) neither use the Cloud Services in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.
5. Without limiting any other obligations required of you, you understand the App and/or Cloud Services have been sold in accordance with regulatory approval in the jurisdiction being sold and you agree to use the App and/or Cloud Services in accordance with their authorized intended use and indications and these Terms.
Data
1. You acknowledge that:
  a) we may require access to the Data to exercise our rights and perform our obligations under these Terms; and
  b) to the extent that this is necessary but subject to clause 11, we may authorize a member or members of our personnel to access the Data for this purpose.
2. You acknowledge and agree that:
  a) we may:
  i use Data and information about you and your use of the Cloud Services to generate anonymized and aggregated statistical and analytical data (Analytical Data);
  ii use Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights;
  b) title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.
3. You acknowledge and agree that to the extent Data contains personal information, you must obtain all necessary consents from the relevant individual (or, where the relevant individual is a minor or not otherwise able to give consent on their own behalf, from the individual’s parent, legal guardian or such other person who is able to give consent on their behalf) to enable us to collect, use, hold and process that information in accordance with these Terms and you represent and warrant that you have obtained such consents.
Fees
1. You must pay the Fees in accordance with the Payment Terms.
2. Unless stated otherwise, the Fees exclude goods and services, value-added, sales or other similar tax, which you must pay where applicable.
3. We may increase the Fees with effect from the start of a Subscription Period by giving at least 30 days’ notice. If you do not wish to pay the increased Fees, you may terminate these Terms in accordance with clause 13.1b. If you do not terminate these Terms in accordance with clause 13.1b, you are deemed to have accepted the increased Fees.
Intellectual Property
1. Subject to clause 8.2, we (and our licensors) own all Intellectual Property Rights in the App and Cloud Services (including all information, data, text, graphics, artwork, photographs, logos, icons, sound recordings, videos and look and feel and any enhancement, modification or derivative work), and all Technology associated therewith, including the Underlying Systems. You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
2. Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains your property. You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable license to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms.
3. If you provide us with ideas, comments or suggestions relating to the App, Cloud Services or Underlying Systems (together feedback):
  a) you hereby assign to us all right, title and interest (including all Intellectual Property Rights) in and to that feedback, and we will solely and exclusively own anything created as a result of that feedback (including new material, enhancements, modifications or derivative works); and
  b) we may use or disclose the feedback for any purpose.
iOS APPS
1. Where you download, install or use the iOS version of the App on an Apple mobile device this clause 9 applies.
2. We and you acknowledge that:
  a) these Terms are between us and you and not Apple Inc. (Apple);
  b) to the maximum extent permitted by law, Apple has no responsibility or liability in respect of any matter relating to the App or the content made available to you through using the App, including:
  i your use or possession of the App or the contents made available to you through using the App; and
  ii the provision of any maintenance or support services for the App;
  c) Apple has no warranty obligation whatsoever with respect to the App and no responsibility to address any claims you may have relating to the App or your possession and/or use of the App, including:
  i product liability claims;
  ii any claim that the App fails to conform to any applicable legal or regulatory requirement;
  iii claims arising under consumer protection, privacy or similar legislation; or
  iv any claim that the App, or your use of the App, infringes a third party’s intellectual property rights.
3. You must comply with applicable third party terms when using the App (e.g. your wireless data service agreement).
4. You acknowledge and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and you are not listed on any U.S. Government list of prohibited or restricted parties.
5. We and you agree that Apple, and any Apple subsidiary, are third party beneficiaries of these Terms and that Apple has the right to enforce these Terms against you as a third party beneficiary.
DISCLAIMERS
1. The app and cloud services are provided “as is” and we expressly disclaim any and all conditions and warranties, express or implied, including, without limitation, any warranty as to merchantable merchantability, quality, title, noninfringement, or fitness for a particular purpose. Without limiting the foregoing,
  (a) we make no representation or warranty concerning the quality of the app or cloud services, and we do not promise that the app or cloud services will be error-free, bug-free, or will operate without interruption and
  (b) we make no representation or warranty that the app or cloud services are appropriate or available for use in all countries or that the content accessible through the app or cloud services satisfies the laws of all countries.
  You are responsible for ensuring that your access to and use of the app or cloud services is not illegal or prohibited, and for your own compliance with applicable local laws. You access and use the app and cloud services at your own risk.
Confidentiality
1. Each party must, unless it has the prior written consent of the other party:
  a) keep confidential at all times the Confidential Information of the other party;
  b) effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorized access or use; and
2. The obligation of confidentiality in clause 11.1 does not apply to any disclosure or use of Confidential Information:
  a) for the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms;
  b) required by law;
  c) which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
  d) which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
  e) by us in connection with an actual or proposed merger, acquisition, financing or similar transaction.
Limitation of Liability
1. We shall not be liable for any indirect, incidental, special, or consequential damages or loss of any kind arising out of or in connection with the use of the App and/or Cloud Service
Term, Termination and Suspension
1. Unless terminated under this clause 13, these Terms and your right to access and use the Cloud Services:
  a) starts on the Start Date; and
  b) continues for successive Subscription Periods until a party gives at least 10 days’ notice that these Terms and your access to and use of the Cloud Services will terminate at the end of the then-current Subscription Period.
2. Subject to clause 7.3, the earliest date for termination under clause 13.1 will be the expiry of the subscription term.
3. Without prejudice to any other right or remedy available to us, if we consider that you have breached these Terms or we otherwise consider it appropriate, we may immediately, and without notice, suspend or terminate your use of the App or Cloud Services (or any part of it).
4. On suspension or termination, you must immediately cease using the App and Cloud Services and must not attempt to gain further access.
5. No compensation is payable by us to you as a result of termination of these Terms for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid.
Governing Law
1. These Terms are governed by the laws of New Zealand. Any disputes arising from or in connection with these Terms shall be subject to the exclusive jurisdiction of the courts in New Zealand.
General
1. If we need to contact you, we may do so by email, via the Cloud Services or by posting a notification through the App. You agree that this satisfies all legal requirements in relation to written communications.
Contact Us
1. If you have any questions, complaints or claims in relation to these Terms, the App, the Cloud Services and your possession or use of the App please contact: support@exsurgo.com