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124 NW 12th Street
Oklahoma City, Oklahoma
73103

888.514.8982
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Privacy Policy

Terms of Service

PLEASE READ THE FOLLOWING AGREEMENT CAREFULLY. IT IS A LEGAL AGREEMENT BETWEEN YOU AND EXAPTIVE. THERE ARE TWO KEY POINTS WE WANT TO MAKE SURE YOU DON’T OVERLOOK.

1. WE COLLECT DATA ABOUT USAGE OF OUR PRODUCTS. WE DON’T SELL YOUR DATA TO THIRD PARTIES. WE COLLECT IT TO IMPROVE THE PRODUCT AND CUSTOMERS’ EXPERIENCE, WHICH INCLUDES CONDUCTING RESEARCH USING SUCH DATA. WHEN YOU ACCEPT THIS AGREEMENT YOU ARE CONSENTING TO SUCH DATA COLLECTION AND TO THE TERMS OF EXAPTIVE’S PRIVACY POLICY

2. IF YOU HAVE A SUBSCRIPTION TO COMMUNITY EDITION OF THE EXAPTIVE STUDIO, THAT IS A NON-COMMERCIAL SUBSCRIPTION FOR YOUR PERSONAL USE. IF YOU WOULD LIKE TO START DEPLOYING THE XAPS YOU BUILD FOR COMMERCIAL PURPOSES, WITHIN YOUR COMPANY OR TO THIRD PARTIES, PLEASE CONTACT US. IN THE MEANTIME, ENJOY AND FEEL FREE TO SHOW OTHERS WHAT YOU BUILD TO PROVE YOUR CONCEPT, AS A DEMONSTRATION, OR TO OTHERWISE SHARE FOR NON-COMMERCIAL PURPOSES.

Exaptive City Subscription Terms and Conditions

1. Purpose

This Agreement (the “Agreement”) is entered into by you, an individual, (“Customer”), and Exaptive, Inc. (“Exaptive”). Each of Customer and Exaptive is a “Party” and collectively the Customer and Exaptive are the “Parties.” You would like to use some or all of the Exaptive Software described in this Agreement. Exaptive would like to provide a subscription enabling you to do so. The parameters of the subscription may change from time to time. Any new features which are added to Exaptive Software shall also be subject to the terms of this Agreement.

2. Accepting this Agreement; Applicability

2.1 In order to lawfully use Exaptive Software you must accept this Agreement. You accept this Agreement by using any Exaptive Software that makes the text of this Agreement visible or available. You also accept this Agreement by clicking a button or otherwise providing input in Exaptive Software or an Exaptive web domain, e.g. exaptive.com or exaptive.city, that indicates you intend to use the Exaptive Software or log into your account. If you accept this Agreement, you do so on your own behalf, on behalf of your company, organization, education institution or government agency, instrumentality or department as its authorized legal representative. If you accept this Agreement, you also accept the terms of Exaptive’s Privacy Policy

2.2 Exaptive may change the terms of this Agreement at any time. In order to continue using the Exaptive Software, you must accept and agree to the new terms. If you do not agree to the new terms, your use of the Exaptive Software will be suspended or terminated by Exaptive. You agree that your acceptance of such new terms may be signified as described in paragraph 2.1.

2.3 The terms of this Agreement apply to you at all times you use Exaptive Software for any reason. If you are the Authorized User of another customer these terms apply to your use of Exaptive Software.

3. Definitions

3.1 “Exaptive Software” shall mean all instances of the Exaptive City, Exaptive Studio, Exaptive Engine, Exaptive Components, Exaptive Xaps, all Xap Store(s) and all Cognitive City(s).

3.2 “Studio” or “Exaptive Studio” shall mean the software application(s) provided by Exaptive for building Xaps or Components, including but not limited to the Exaptive Engine, and any Exaptive Components or Exaptive Xap(s) provided with Customer’s particular subscription or license to the Exaptive Studio.

3.3 “City” or “Exaptive City” shall mean software provided by Exaptive that administers a collection of Studios, access to which is controlled by Exaptive.

3.4 “Customer City” shall mean software provided by Exaptive that administers a collection of Studios, access to which is controlled by Customer.

3.5 “Exaptive Engine” shall mean a library of code that enables Components to function together as a Xap.

3.6 “Components” shall mean code modules available in the Exaptive Studio.

3.7 “Exaptive Components” shall mean Components provided by Exaptive with the Exaptive Studio, whether in existence before or provided after the Effective Date, that the Customer may access and use to build a Xap.

3.8 “Customer Components” shall mean Components created by the Customer and used with the Exaptive Studio for the purpose of building a Xap.

3.9 “Xap” shall mean a software application composed of Components and Data Flow that requires the Exaptive Engine to run.

3.10 “Exaptive Xap” shall mean a Xap provided by Exaptive, the software application being comprised of Exaptive Components and not Customer Components.

3.11 “Customer Xap” shall mean a Xap created by the Customer using the Exaptive Studio, even if comprised of Exaptive Components.

3.12 “Data Flow” shall mean the configuration of Components to work together in a Xap. Data Flow is provided by a user in connection with using the Studio.

3.13 “Exaptive Data Flow” is Data Flow configured by Exaptive.

3.14 “Customer Data Flow” is Data Flow configured by Customer or Customer’s Authorized Users.

3.15 “Cognitive City” shall mean software provided by Exaptive for analyzing the use of data, analysis techniques, and software tools among a group of people.

3.16 “Customer Cognitive City” shall mean a Cognitive City configured to analyze the use of data, analysis techniques, and software tools among a group of people defined by Customer.

3.17 “Studio Marketplace” shall mean software provided by Exaptive for Exaptive, Customer, and Third Parties to market, sell, and distribute Components and Xaps to each other for use in the Studio.

3.18 “Customer Studio Marketplace” shall mean a Studio Marketplace provided by Exaptive solely for Customer.

3.19 “Xap Store” shall mean software provided by Exaptive for Exaptive, Customer, and Third Parties to market, sell, and distribute Xaps for use by end-users outside the Studio.

3.20 “Customer Xap Store” shall mean a Xap Store provided by Exaptive solely for Customer.

3.21 “Intellectual Property” shall include all:

  • a) patents, patent applications, patent disclosures and all related continuation, continuation-in-part, divisional, reissue, reexamination, utility model, certificate of invention and design patents, patent applications, registrations and applications for registrations;
  • b) trademarks, service marks, trade dress, Internet domain names, logos, trade names and corporate names and registrations and applications for registration thereof;
  • c) copyrights and registrations and applications for registration thereof;
  • d) mask works and registrations and applications for registration thereof;
  • e) computer software, data and documentation;
  • f) inventions, trade secrets and confidential business information, whether patentable or nonpatentable and whether or not reduced to practice, know-how, manufacturing and product processes and techniques, research and development information, copyrightable works, financial, marketing and business data, pricing and cost information, business and marketing plans and customer and supplier lists and information;
  • g) copies and tangible embodiments of any of the foregoing.

3.22 “Exaptive Intellectual Property” shall mean all Intellectual Property owned by Exaptive, which shall include, but not be limited to, the Exaptive Software and any part of the Exaptive Software used in Customer Xaps, including Exaptive Data Flow.

3.23 “Customer Intellectual Property” shall mean all Intellectual Property owned by Customer, which shall include, but not be limited to, Customer Components and Customer Data Flow.

3.24 “Usage Data” shall mean electronic data and metadata collected by Exaptive about the use of Exaptive Software.

3.25 “Confidential Information” shall mean any of the following, whether in oral, written, or other tangible form:

  • a) the terms of this Agreement or of any Statement of Work (“SOW”),
  • b) whether or not marked or designated as confidential by the disclosing party, the disclosing party’s financial plans, financial projections, product strategies, non-public product offerings, product or service specifications, data or datasets, scope or method of providing services, customer names or lists, target or actual markets for products or services, product or service developments, processes, designs, research, marketing methods or distribution plans,
  • c) any other information the disclosing party clearly marks as its Confidential Information, or that the disclosing party verbally designates as its Confidential Information at the time of disclosure or within a reasonable time thereafter,
  • d) information that, due to the nature of the information and the circumstances of disclosure, a reasonable person clearly would understand to be the Confidential Information of the disclosing party. For the avoidance of doubt, Confidential Information includes Exaptive Software, Customer Components and Customer Data Flow.

3.26 “Third Party” shall mean any entity or individual other than Exaptive, Customer, and Authorized User(s).

3.27 “Customer’s Internal Purposes” shall mean use by Customer’s Authorized User(s) for the purpose of conducting Customer’s business.

3.28 “Authorized User(s)” shall mean a unique person, either an employee or contractor of Customer, given access by Customer to Exaptive Software via unique access credentials or a url. Customer’s Authorized User(s) shall not include granting any access whatsoever to Customer’s clients or customers or the public.

3.29 “Purchase Order” shall mean a request from Customer to purchase

  • a) an Exaptive Studio license pursuant to this Agreement for a particular duration and with respect to a specified number of Authorized Users, for the applicable license fee or
  • b) a software and maintenance package associated with a purchased Exaptive Studio license.

4. Access to and Support for the Exaptive Software

4.1 Subscription(s) to Exaptive Software.

  • a) Exaptive hereby grants Customer a non-exclusive, non-transferrable subscription to the particular Exaptive Software for which Customer indicates it wants access and accepts this Agreement, as described in Section 2.
  • b) The Parties acknowledge that the subscription will be provided electronically via access to a web domain administered by Exaptive, a.k.a. software as a service.
  • c) In the absence of a separate agreement, a subscription to the Exaptive Studio is granted for non-commercial use only. Customer or its Authorized Users shall not use or allow Third Parties to use Customer Xaps or Customer Components for purposes that generate revenue for Customer or Third Parties or that otherwise relate to Customer’s or a Third Party’s business purposes. Customer may show Customer Xaps and Customer Components for demonstration purposes or use them for non-commercial reasons.

4.2 Authorized User. Unless otherwise specified explicitly, Customer, the individual person that agrees to this Agreement, is the only Authorized User of the Exaptive Software under this Agreement.

4.3 No License Fees. There are no fees for the Exaptive Software under this Agreement. Customer is solely responsible for any fees or other costs associated with Third Party software or services that it uses in conjunction with the Exaptive Software.

4.4 Support and Maintenance. Technical support requests can be submitted via email to support@exaptive.com or (617) 826-9873. Exaptive will make commercially reasonable efforts to correct bugs and implement software updates that Exaptive determines, in its sole and absolute discretion, materially affect the operation of the Exaptive Software, as well as provide technical assistance to customer in using the Exaptive Software; provided that this shall not constitute a warranty of any kind, all such warranties having been disclaimed pursuant to Section 5.1. Without limitation on the foregoing, Exaptive shall in no event provide maintenance or repair necessitated by alteration or amendment to Exaptive Intellectual Property or any part thereof, relocation of Exaptive Intellectual Property or any part thereof unless previously agreed upon by Exaptive, use of ancillary equipment or software not suitable for use with Exaptive Intellectual Property or any part thereof, or damage caused by virus, spyware, or lack of a firewall when updates have not been installed or where an update has not yet become available.

4.5 Access Changes. Exaptive reserves the right at any time and without prior notice to temporarily limit Customer’s access in order to perform repairs, make modifications, or as a result of circumstances beyond Exaptive’s control. Exaptive may modify the Exaptive Software at any time. No service levels or standards are guaranteed, except as expressly set forth in this Agreement.

5. Representations, Warranties, and Limitation of Liability

5.1 No Warranty. EXCEPT AS STATED IN THIS AGREEMENT, EXAPTIVE, ITS SUBSIDIARIES AND AFFILIATES, SUBCONTRACTORS AND SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXAPTIVE FURTHER DISLCAIMS THAT THE EXAPTIVE SOFTWARE MEETS STANDARDS FOR OPERATIONAL COMPLIANCE OR CERTIFICATION IN ANY PARTICULAR AREA, INCLUDING BUT NOT LIMITED TO GOVERNMENT OR INDUSTRY ASSOCIATION REQUIREMENTS. Without limiting the generality of the foregoing:

  • a) Exaptive does not warrant that Exaptive Intellectual Property or any part thereof, is free of defects, will operate uninterrupted or error-free, or that non-material defects will be corrected;
  • b) The Customer acknowledges that the software operates over the internet and/or an intranet;
  • c) The Customer acknowledges that Exaptive does not control the transfer of data over the internet or Customer’s intranet, and that the Exaptive Software may be subject to limitations, delays, and other problems inherent in the use of the internet or Customer’s intranet;
  • d) Exaptive is not responsible for any delays, delivery failures, or other damage resulting from such problems
  • e) Customer acknowledges that Exaptive relies on third-party vendors to provide subscriptions to the Exaptive Software and that Exaptive does not control and is not responsible for interruptions in Customer’s use of the Exaptive Software caused by Third Party products or services;
  • f) The Customer further acknowledges that Customer Components and Customer Xaps are the creation of the Customer and Exaptive makes no warranty with respect thereto;
  • g) Exaptive does not warrant that Customer Components or Customer Xaps will work, or work successfully, with Exaptive Components or in the Exaptive Engine;
  • h) Exaptive does not guarantee that unauthorized Third Parties will never be able to defeat its security measures or access Customer code;
  • i) Customer acknowledges that all Customer Intellectual Property and Third Party Intellectual Property is used at Customer’s own risk.

5.2 Customer Liability. Customer is solely responsible for any defects caused by

  • a) the failure of the Customer or any of the Customer’s agents to provide a suitable operating environment;
  • b) the Customer’s misuse, damage or unauthorized modification of the Exaptive Software or any element or part thereof;
  • c) the Customer’s combination of any element or part of the Exaptive Software with any other hardware or software, other than as authorized in writing by Exaptive;
  • d) the Customer’s use of the Exaptive Software, or any element or part thereof, as incorporated into a system other than as authorized in writing by Exaptive;
  • e) the negligence or willful misconduct of the Customer or the Customer’s agents, or the unauthorized transfer or resale of the Exaptive Software to a Third Party in violation of the provisions of this Agreement.

5.3 Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, SAVINGS OR REVENUES OF ANY KIND, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OTHER THAN WITH RESPECT TO BREACHES OF THE OBLIGATIONS SET FORTH IN SECTION 7. THIS PROVISION SHALL APPLY EVEN IN THE EVENT OF THE FAILURE OF AN EXCLUSIVE REMEDY. WITHOUT LIMITING THE FOREGOING, THE MAXIMUM AGGREGATE LIABILITY OF EXAPTIVE TO CUSTOMER SHALL BE FIVE THOUSAND DOLLARS ($5,000).

6. Customer’s Limitations, Obligations, and Responsibilities.

6.1 No Unauthorized Distribution of the Exaptive Software. Except as otherwise set forth in this Agreement, Customer agrees not to rent, lease, lend, upload, host on any website or server, sell, redistribute, or sublicense the Exaptive Software, in whole or in part, or to enable others to do so. The Customer further agrees that it may not modify, make derivative works of, disassemble, access, review, reverse compile, or reverse engineer any part of Exaptive’s Intellectual Property, or access or use any part or element thereof, in order to build or support, or assist a Third Party in building or supporting, products or services competitive with Exaptive. In no event will Customer be entitled to access or review the object or source code of the Exaptive Software, unless it is not made explicitly available for access and review by Exaptive at its sole discretion. The Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing and making unauthorized use of Exaptive Intellectual Property. Customer also agrees not to remove or destroy any proprietary markings or legends or any encrypted license keys or similar security devices placed upon or contained within any Exaptive Intellectual Property.

6.2 Lawful and Appropriate Use. Customer may not use the Exaptive Software, Customer Components, or Customer Xaps to connect to any APIs in any way that violates laws, regulations, or the terms of the API. Customer Components and Xaps must comply with all applicable criminal, civil, and statutory laws and regulations, including but not limited to all applicable privacy and data collection laws and regulations with respect to any collection, use or disclosure of user or device data. Customer Components and Xaps may not be designed or marketed for the purpose of harassing, abusing, spamming, stalking, threatening, or otherwise violating the legal rights of others. Neither Customer nor Customer Components and Xaps may perform any functions or link to any content, services, information, or data or use any robot, spider, site search or other retrieval application or device to scrape, mine, retrieve, cache, analyze, or index software, data, or services provided by Exaptive or obtain or try to obtain any such data, except the data that Exaptive expressly provides or makes available to Customer in connection with the Exaptive Software. Customer agree that Customer will not collect, disseminate or use any such data for any unauthorized purpose. Customerr Component(s) and Xap(s) must not contain any malware, malicious or harmful code, program, or other internal component (e.g., computer viruses, trojan horses, “backdoors”) which could damage, destroy, or adversely affect the Exaptive Software or other software, firmware, hardware, data, systems, services, or networks.

6.3 Third-Party License(s). If Customer Component(s) or Xap(s) include any Third Party Intellectual Property, including free and open-source software (“FOSS”), Customer agrees to comply with all applicable licensing terms provided by the Third Party or a FOSS license. If Customer discovers any conflict between Customer Component(s) or Xap(s) and a Third Party license, a FOSS license, or the terms of this Agreement, Customer agrees to immediately notify Exaptive of it and will cooperate with Exaptive to resolve such matter. Customer acknowledges that Exaptive may immediately cease distribution of any affected Component(s) or Xap(s) and may refuse to accept any subsequent submissions to the Exaptive Xap Store until such matter is resolved to Exaptive’s satisfaction.

6.4 Customer Solely Responsible. Customer is solely responsible for proper use of Third Party software it uses in conjunction with the Exaptive Software. Customer is solely responsible for providing, installing and maintaining at its own expense all equipment, facilities, and services necessary to enable its access and use of the Exaptive Software. Customer is solely responsible for limiting access to the Exaptive Software to himself or herself, the only Authorized User. Exaptive is not responsible for any damages Customer causes or laws Customer break. Customer agrees that Customer will not seek any regulatory marketing permissions or make any determinations that may result in any Exaptive products being deemed regulated or that may impose any obligations or limitations on Exaptive. Customer agrees to promptly notify Exaptive of any complaints or threats of complaints regarding Customer Component(s) or Xap(s) in relation to any legal or regulatory requirements. Customer represents and warrants that it has all necessary rights to own or use the Customer Intellectual Property or any Third Party Intellectual Property used by Customer in connection with this Agreement.

7. Ownership of Intellectual Property; Confidential Information.

7.1 Intellectual Property.

  • a) Exaptive Intellectual Property. Customer acknowledges and agrees that:
    • i) Exaptive shall retain exclusive rights to all Exaptive Intellectual Property;
    • ii) Customer has no right to use or license the Exaptive Intellectual Property, except as expressly set forth in this Agreement or a Purchase Order accepted pursuant to this Agreement.
  • b) Customer Intellectual Property. Exaptive acknowledges and agrees that:
    • i) Customer shall retain exclusive rights to all Customer Intellectual Property;
    • ii) Exaptive has no right or license to any of the Customer Intellectual Property, except as expressly set forth in this Agreement or a Purchase Order accepted pursuant to this Agreement.
  • c) Suggestions, Comments, and Recommendations. In the event that Customer provides Exaptive comments, suggestions, or recommendations with respect to Exaptive’s Intellectual Property, Customer hereby grants to Exaptive a worldwide, royalty free, irrevocable, perpetual license to use and otherwise incorporate any such comments, suggestions, and recommendations.
  • d) Visibility of Customer Intellectual Property and Use of Metadata. Customer hereby acknowledges and accepts that, pursuant to this Agreement, Exaptive will be able to view all Exaptive Software, Customer Studios, Customer Cities, Customer Components, Customer Data Flow, Customer Repositories, Customer Xaps, the contents of all of the foregoing, and any associated Usage Data or metadata. Customer hereby grants Exaptive a worldwide, royalty free, irrevocable, perpetual license to such metadata for use of any kind, including improving Exaptive Software, providing analytics to Customer or to another customer for whom Customer is an Authorized User, and for the purposes of conducting anonymized research.
  • e) Nonexclusivity. Customer acknowledges that the rights granted to it under this Agreement are nonexclusive and that, without limiting the foregoing, nothing in this Agreement will be interpreted to restrict in any way Exaptive’s right to license, sell, or otherwise make available the Exaptive Software or services to Third Parties.
  • f) Patent Prosecution.
    • i) Right to Prosecute and Maintain. Each party shall have the exclusive right and option to file and prosecute any patent applications and to maintain any patents that are Exaptive Intellectual Property.
    • ii) Costs. Each party shall bear its own costs and expenses in preparing, filing, prosecuting, maintaining and extending patent rights relating to this Agreement.

7.2 Confidential Information

  • a) Confidentiality Obligations. Each party will not use the other party’s Confidential Information, except as necessary for the performance of this Agreement, such as 7.1(d), and will not disclose such Confidential Information to any third party, except to those of its employees and subcontractors that need to know such Confidential Information for the performance of this Agreement, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. Each party will use all reasonable efforts to maintain the confidentiality of the other party’s Confidential Information in its possession or control, but in no event less than the efforts that it ordinarily uses with respect to its own confidential information of similar nature and importance. The foregoing obligations will not restrict either party from disclosing the other party’s Confidential Information or the terms and conditions of this Agreement:
    • i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement;
    • ii) on a confidential basis to its legal or professional financial advisors;
    • iii) as required under applicable securities regulations;
    • iv) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such party. The restrictions set forth in this Section 7 will remain in effect during the term of this Agreement and for a period of three (3) years thereafter.
  • b) Confidentiality Exclusions. The obligations set forth in Section 7 will not apply to any Confidential Information that:
    • i) is in or enters the public domain without breach of this Agreement by the receiving party;
    • ii) the receiving party lawfully receives from a third party without restriction on use or disclosure;
    • iii) the receiving party knew prior to receiving such information from the disclosing party without breach of a nondisclosure obligation; or
    • iv) the receiving party independently develops without reference to the other party’s Confidential Information.
    • v) Further, Customer acknowledges and accepts that at times Exaptive uses Third-party software and services to perform functions within Exaptive Software and that such software or services may view or obtain data or metadata as a result of Customer’s use of Exaptive Software. Exaptive makes a good-faith effort to ensure use of such services does not pose any risk to Customer’s Confidential Information. Exaptive, however, cannot guarantee there is no risk. For example, Exaptive uses Stripe for payment, analytics, and other business services. Stripe collects identifying information about the devices that connect to its services. Stripe uses this information to operate and improve the services it provides to us, including for fraud detection. You can learn more about Stripe and read its privacy policy at https://stripe.com/privacy. Exaptive uses Cloudinary for compressing and storing User Profile photos. Cloudinary takes precautions to protect those photos and associated data and metadata, but it also relies on Third Parties to perform its service. You can learn more about Cloudinary’s privacy practices at http://cloudinary.com/privacy#section3. Exaptive uses Amazon Web Services for data storage and processing. You can learn more about AWS’s privacy and security practices at https://aws.amazon.com/compliance/data-privacy-faq/.
  • c) Equitable Relief. The Parties acknowledge that a breach of any confidentiality provision of this Agreement may cause the other Party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the Parties may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.

8. Term and Termination

8.1 Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue in full force and effect for so long as the Customer has active subscriptions or licenses under this agreement.

8.2 Termination for Breach. If Customer shall breach any of its obligations hereunder, Exaptive may terminate this Agreement and discontinue Customer access to the Exaptive Software immediately. In addition, this Agreement may be terminated by Exaptive if the Customer:

  • a) is dissolved or liquidated or takes any corporate action for such purpose;
  • b) becomes insolvent or is generally unable to pay its debts as they become due;
  • c) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency law;
  • d) makes or seeks to make a general assignment for the benefit of its creditors;
  • e) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.

8.3 Termination without Cause. Either party may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to the other party.

8.4 Effect of Termination or Expiration. On the expiration or earlier termination of this Agreement, all rights, licenses and authorizations granted to Customer hereunder will immediately terminate and Customer shall immediately cease all use of and other activities with respect to the Exaptive Intellectual Property and deliver to Exaptive, or at Exaptive’s written request destroy, and permanently erase from all devices and systems that Customer directly or indirectly controls, any Exaptive Intellectual Property or Confidential Information. At Exaptive’s request, Customer shall certify to Exaptive in a signed and notarized written instrument that it has complied with the requirements of this Section 8.3.

8.5 Survival. The expiration or prior termination of this Agreement for whatever reason shall not affect the accrued rights of either Exaptive or Customer arising under this Agreement and Sections 5, 6, 7 and 9.2, along with any other provisions which based on their nature should survive, shall survive such expiration or termination.

9. Miscellaneous.

9.1 Independent Status of Parties. Each Party shall act as an independent contractor and shall not bind nor attempt to bind the other Party to any contract, or any performance of obligations outside of this Agreement. Nothing contained or done under this Agreement shall be interpreted as constituting either Party as the agent of the other Party in any sense of the term whatsoever unless expressly so stated, and neither Exaptive nor its employees are eligible for any Customer employee benefits.

9.2 Indemnification. In the event that any claim or legal proceedings are brought by a Third Party against Exaptive for any reason arising out of Customer’s use of Exaptive Intellectual Property, including without limitation, any claim against Exaptive alleging that any Customer Intellectual Property or any Third Party Intellectual Property used by Customer violates or infringes upon such Third Party’s Intellectual Property rights, the Customer agrees to indemnify, defend, and hold harmless Exaptive for any damages arising out of any such claim or legal proceeding, and pay any costs, damages and reasonable attorneys’ fees arising out of or resulting from any such claim or legal proceeding.

9.3 Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflict of laws principles. For the avoidance of doubt, the following shall not apply:

  • a) the United Nations Convention on Contracts for the International Sale of Goods;
  • b) the 1974 Convention on the Limitation Period in the International Sale of Goods;
  • c) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980.

9.4 Notices. Except as otherwise specified, all notices, instructions and other communications hereunder or in connection herewith shall be in writing and shall be sent by facsimile transmission or email address, in each case to the contact information set forth below.

Notices to Exaptive shall be addressed to :
Exaptive, Inc.
notices@exaptive.com
Fax: 617 812-4776

Notices to Customer shall be addressed to : [the name and email addresses provided by Customer in the process of registering for and agreeing to this Agreement]

9.5 Entire Agreement. This Agreement constitutes the full understanding of the parties with respect to the subject matter hereof and supersedes all prior understandings and writings relating thereto. No waiver, alteration or modification of any of the provisions hereof shall be binding unless made in writing and signed by the parties.

9.6 Construction. Unless the context expressly requires otherwise,

  • a) the word “or” shall be interpreted in the inclusive sense (i.e., “and/or”),
  • b) the word “include(ing)” shall mean “include(ing) without limitation” and
  • c) the singular shall include the plural and vice versa.

Headings in this Services Agreement are used for convenience only and shall not be used in the construction of the meaning of this Services Agreement. The language used in this Services Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against either Party.

9.7 Severability. In the event that any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable because it is invalid or in conflict with any law of any relevant jurisdiction, the validity of the remaining provision shall be not be affected, and the court shall construe the provision, to the maximum extent possible, to accomplish the original business purpose.

9.8 Assignment. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by Customer without the prior consent of Exaptive, provided, however, that Customer may assign this Agreement in connection with a sale of substantially all of Customer’s assets or a merger or equity transaction involving a transfer of more than 50% of the ownership or change of voting control of the Customer (each a “Change of Control”). A Change of Control shall be considered an assignment for purposes of this Section. Any assignment in violation of this Section 9.9 shall be void and of no force or effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns, subject to provisions of this Section.