Terms Conditions

Acceptance of the Terms of Use

The following terms and conditions, together with any referenced documents (collectively, “Terms of Use”) are a legal agreement between you and your employees, agents, contractors and any other entity on whose behalf you accept these terms (collectively, “you” and “your”), and OvertureXL, LLC. (“OvertureXL,” “we,” “us” and “our”). The Terms of Use apply to OvertureXL’s Website (as defined below).

IMPORTANT: THESE TERMS OF USE FORM A BINDING CONTRACT BETWEEN YOU AND US WHEN ACCEPTED BY YOU. YOU ACCEPT THESE TERMS OF USE BY (1) ACCESSING OR USING THE WEBSITE, (2) INDICATING ACCEPTANCE OF THESE TERMS WHEN THEY ARE PRESENTED ONLINE, SUCH AS BY CHECKING A BOX CAPTIONED WITH ACCEPTANCE LANGUAGE OR CLICKING AN ICON BEARING AN “ACCEPT” OR SIMILAR LEGEND OR BY OTHERWISE ELECTRONICALLY SIGNING THIS AGREEMENT; OR (3) EXERCISING OR PURPORTING TO EXERCISE ANY OF THE RIGHTS GRANTED TO YOU UNDER THESE TERMS OF USE. THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF AN ENTITY REPRESENTS THAT HE OR SHE HAS AUTHORITY TO REPRESENT THE ENTITY AND COMMIT FUNDS ON ITS BEHALF. IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU MAY NOT USE THE WEBSITE.

The term “Website” means OvertureXL public website.

We may revise and update these Terms of Use from time to time in our sole discretion. You are expected to check this page from time to time to take notice of any changes we made, as they are binding on you. All material changes apply prospectively only. Changes to the dispute resolution procedures set forth in the section titled Governing Law and Jurisdiction shall not apply to disputes for which the parties had actual notice as of the date the change was posted on the Website. Your continued use of the Website following the posting of revised Terms of Use means that you accept and agree to the changes. When accepted by you, the revised Terms of Use automatically revoke any license or other rights that we granted to you under the prior version.

Personally identifiable information collected about you by this Website is treated in accordance with the OvertureXL Privacy Policy, which is hereby incorporated into these Terms of Use by reference.

Access

We reserve the right to terminate or modify the Website including any of its content, in whole or in part, in any manner in our sole discretion, without notice. We will not be liable if, for any reason, all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to all or part of the Website to registered users or another subset of users. You are solely responsible for making all arrangements necessary for you to access the Website.

Accounts

To access portions of the Website or certain resources, you may be asked to provide certain registration details or other information. It is a condition of your use of the Website, and you hereby represent and warrant, that you are of the legal age of majority in the jurisdiction in which you reside and that all information you provide is correct, current and complete. If you choose, or you are provided with, a user name, password or other information as part of our security procedures, you must treat such information as confidential and you must not disclose it to any third party. You agree that you are solely responsible to us for all activities identified with your account. You agree to immediately notify OvertureXL of any unauthorized use of your user name or password or any other breach of security. You must logout from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. OvertureXL has the absolute right to disable any user name or password, at any time, for any reason, including, if in our sole discretion we believe that you have failed to comply with any provision of these Terms of Use.

OvertureXL Products

The “Website” does not include OvertureXL Products. “OvertureXL Product” means the OvertureXL platform and any OvertureXL software, including those customarily provided by us only to our paying customers, along with professional services, support, and maintenance, and any other products or services offered for sale by OvertureXL. You must purchase access to OvertureXL Products pursuant to a separate subscription or other agreement with OvertureXL (“Subscription Agreement”). Use of the Website

Posting

You and other third-party users of the Website may be permitted to post, submit, contribute, publish, display, make available or transmit to others (hereinafter, “post“) content (collectively, “User Contributions” and together with contributions officially posted by OvertureXL, “Contributions”) on or through the Website. Posting permits our customers, partners, developers, prospective customers, employees and other interested parties to share information, exchange ideas, expertise and experience, ask questions, provide solutions, share technology advances and obtain product information. To foster a vibrant, thriving, and friendly community, we may enforce standards for appropriate content and prohibit uses antithetical to the intended community environment. User Contributions are considered non-confidential and non-proprietary, and you hereby grant to OvertureXL a perpetual, irrevocable, royalty-free, fully-paid, sublicensable, transferable, non-exclusive, worldwide license to copy, distribute, modify, make derivative works of, publicly display, publicly perform, make, use, sell, translate and disclose to third parties any User Contributions that you post for any purpose. We are under no obligation to post or use any User Contributions, and reserve the right to edit or remove User Contributions that violate these Terms of Use in our sole discretion.

To the extent you have purchased support rights under your Subscription Agreement, do not use Community Services for the escalation of support issues. Contact OvertureXL Support as provided in your Subscription Agreement.

You are solely responsible for any User Contribution that you post, including its legality, reliability, accuracy and appropriateness. OvertureXL is not responsible for (and has no liability with respect to) any User Contribution. You represent and warrant that you own or control all rights in and to the User Contributions that you post and have the right to grant OvertureXL and its affiliates the license granted above. You represent and warrant that all of your User Contributions do and will comply with these Terms of Use, and you agree to defend, indemnify and hold OvertureXL and its affiliates and licensors harmless for any breach of that representation and warranty. Opinions expressed in User Contributions are those of the party posting the User Contribution and do not necessarily reflect the opinion of OvertureXL.

Personal Information Submitted to OvertureXL

OvertureXL markets their services through numerous third-party public-facing mechanisms such as LinkedIn, Indeed, Social Media Platforms, public advertising, and other methodologies available. Your response to any form of advertising including word of mouth, internet searches on your behalf, or any other action taken by you that results in your submission of information to OvertureXL, grants OvertureXL the right to maintain your submitted information within the OvertureXL tracking modules in use as part of the OvertureXL operating platform and operating methodology. Your personal information submitted to OvertureXL by you or on your behalf knowingly or unknowingly by you or by any other person or by any other means such as online advertising sites, public forums and groups, social media or any other publicly available mechanisms, will reside within the OvertureXL operating system and will be used for the sole purpose of the OvertureXL operating mission of connecting applicants, candidates, respondents, interested parties, or any other individuals who have submitted their personal information to OvertureXL, with employers of any legally operating entities of any kind who employ individuals within the industries that OvertureXL provides services to.

As described above, your submission of data, regardless of the source of that submission, will constitute your agreement for OvertureXL to maintain your information in the OvertureXL systems and for OvertureXL to present you as a candidate to the OvertureXL employer pool of companies. You have the right to contact OvertureXL to request the removal of your information using the ‘contact us’ process on the OvertureXL website with the expectation that you will be removed from the OvertureXL database within 72 hours of your request.

Code of Conduct

You agree to comply with the following code of conduct in your use of the Website:

  • Be polite and courteous. Respect and treat others as you would expect to be treated yourself.
  • Respect your audience. Posts should not upset, annoy, threaten, harass, abuse or embarrass other members.
  • User Contributions may not include material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
  • Lively and collegial discussions are always encouraged in a healthy community. It is okay to argue facts but not okay to argue personalities or personal beliefs.
  • Do not use text formats such as all caps or bold that may be read as annoying, rude or send a strong message.
  • Avoid using abbreviations or terminology that others may not understand. An abbreviation may mean something to you but in another context or country, it may have another meaning.
  • Be accountable for your actions by correcting your mistakes and indicating where you have changed a previous post of yours.

Prohibited Uses

You agree not to access or use the Website in any manner:

  • That violates any applicable federal, state, local or international law or regulation, or advocates, promotes or assists in any unlawful act, constitutes an illegal threat or violates export control laws.
  • That violates the rights of any person or entity that may give rise to civil or criminal liability under applicable laws or regulations applicable to you, another user, and/or OvertureXL, LLCluding violation of privacy or publicity rights, infringement of any copyright, patent, trademark, trade secret or other intellectual property right, or conflicts with these Terms of Use or the Privacy Policy.
  • To transmit or introduce offensive materials, including those involving profanity, violence, sexual conduct, pornography or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
  • To monitor or attempt to gain unauthorized access to: (a) an account or computer not belonging to you; (b) any data, information or communications on any network or system not owned by you, without authorization; (c) any system or network user accounts or passwords of other users, without authorization; or (d) e-mail addresses, screen names or other identifiers without the consent of the person identified (including, without limitation, phishing, password robbery, spidering and harvesting).
  • That is false, deceptive, misleading or fraudulent, including but not limited to: (a) any attempt to impersonate any person or entity, including any other user, OvertureXL or a OvertureXL employee; (b) to misrepresent your identity or affiliation with any person or organization; and (c) any attempt to give the impression that you are posting materials from any person or entity other than yourself if that is not the case, including but not limited to altering your IP source address.
  • To use, transmit or introduce: (a) information protected under the privacy or security regulations issued pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) or subject to the Health Information Technology for Economic and Clinical Health (HITECH) Act; or (b) non-public sensitive or personally identifiable information including but not limited to drivers license numbers, passport numbers, social security numbers, tax identification numbers, voter registration numbers or similar identifying numbers, health information, or financial information including bank, checking, credit card, debit card, or other account numbers.
  • For the purposes of recruiting, advertising, solicitation or commercial activities of any kind without the express written consent of OvertureXL, LLCluding, but not limited to: (a) promotions, contests, sweepstakes, barter, advertising or pyramid schemes; and (b) the transmission of, or procurement of sending, any advertising or promotional material, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation.
  • To monitor or copy materials on the Website for any unauthorized purpose or access the Website via any automatic device, process or means of access such as a robot or spider.
  • That may have a detrimental effect on the Website’s function, user interaction or security, including but not limited to: (a) gaining unauthorized access to, or attempting to compromise the security of, any network, system, computing facility, equipment, data or information; (b) attempting to intercept, redirect or otherwise interfere with communications intended for others; (c) disabling, damaging, overburdening or impairing the Website or any server, computer or database connected to or accessed by the Website; (d) modifying, blocking or otherwise interfering with the display of the Website; (e) interfering with another user’s ability to access, use and enjoy the Website; (f) accessing another user’s registration information or user account without that user’s express written permission; (g) transmitting or introducing any malicious or technologically harmful element to the Website such as a spyware program, virus, Trojan horse, worm or logic bomb; (h) performing, without OvertureXL’s express prior written authorization, scalability testing, load testing, probing, scanning, penetration or vulnerability testing of the Website, including without limitation the Community Services; and (i) engaging in any activities that results in any server being the target of a denial of service attack.

Notification of Violation.

If you become aware of any violation of these Terms of Use by any person, including other users or third parties, you must immediately notify OvertureXL via e-mail to info@overturexl.com.

OvertureXL Disclaimer.

We may, but are under no obligation to, monitor or censor comments made by users or content provided by contributors and we are not responsible for the accuracy, completeness, appropriateness or legality of anything posted, depicted or otherwise provided by third-party users and we disclaim any and all liability relating thereto.

Intellectual Property

Website

The Website in its entirety including the, Website Content and is owned by OvertureXL or our licensors and is protected by United States and international laws regarding copyrights, patents, trademarks, trade secrets and other intellectual property or proprietary rights. You are permitted to use the Website only for legitimate business purposes related to your role as a current or prospective customer, developer, partner, supplier or distributor of OvertureXL. You shall not copy, modify, create derivative works of, publicly display or perform, republish, download or store, or transmit any Website Content without OvertureXL’s express prior written consent or except as expressly provided in these Terms of Use.

OvertureXL Technology

As between OvertureXL and you, all rights, title, and interest in and to all intellectual property rights in the OvertureXL Technology are owned exclusively by OvertureXL notwithstanding any other provision in these Terms of Use. Except as otherwise expressly provided in these Terms of Use, OvertureXL reserves all rights in the OvertureXL Technology and does not grant you any rights, express or implied or by estoppel. As used herein, “OvertureXL Technology” means: (a) software, development tools, documentation and OvertureXL technology and methodologies (including, without limitation, products, software tools, hardware designs, algorithms, templates, software (in source and object forms), architecture, class libraries, objects and documentation) existing as of the Effective Date; (b) updates, upgrades, improvements, configurations, extensions, and derivative works of the foregoing, however made, and related technical or end user documentation or manuals; and (c) intellectual property anywhere in the world relating to the foregoing.

OvertureXL Trademarks

OvertureXL, the OvertureXL logo, and other OvertureXL marks are trademarks and/or registered trademarks of OvertureXL, LLC. Reference the OvertureXL Terms of Use for more information regarding OvertureXL trademarks.

Documentation

The Documentation available on the Website is the copyrighted work of OvertureXL and/or third-party providers. Subject to these Terms of Use, we grant you a limited, revocable, non-transferable, non-exclusive and non-sublicensable license to make a reasonable number of copies of the Documentation for your internal business use in connection with your separately authorized use of OvertureXL Products. No right to sublicense or distribute the Documentation is granted herein.

User Contributions

No rights are granted to you with respect to User Contributions (not including Apps, which are treated as described above) other than the limited, personal, non-exclusive license to reproduce User Contributions as necessary to display the User Contributions on a machine that you use to interact with the Website.

Third Party Content

Third-party materials and free and open source software (“FOSS”) provided by us to you may be accompanied by licensing terms, in which case such licensing terms shall govern your use of that third-party software or FOSS. Mention of third parties and third-party products in any materials, advertising, promotions or coupons provided to you is for informational purposes only and constitutes neither an endorsement nor a recommendation. All third-party product specifications and descriptions are supplied by the respective vendor or supplier, and OvertureXL shall have no responsibility with regard to the selection, performance or use of such vendors or products. To the extent you access or use such software, all understandings, agreements or warranties, if any, shall be directly between the vendor and you.

Restrictions

No right, title or interest in or to the Website including Website Content and Contributions or OvertureXL Technology, is transferred to you. There are no implied licenses under these Terms of Use. OvertureXL reserves all rights not expressly granted to you herein. Any use of the Website not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark and other laws. OvertureXL Technology is licensed and not sold even if for convenience OvertureXL makes reference to words such as sale or purchase. You shall not (and shall not permit others to) do any do any of the following with respect to the Website or OvertureXL Technology: (a) license, sublicense, sell, resell, rent, lease, transfer, distribute or time share it or otherwise make any of it available for access by third parties, including any derivative works of OvertureXL Technology irrespective of which party authors such derivative works; (b) disassemble, decompile or reverse engineer it, particularly for the purpose of developing any product or services competitive with the OvertureXL Technology generally; (c) copy, create derivative works of, or otherwise modify it, except as expressly permitted hereunder; (d) disrupt its security, integrity or operation; (e) remove or modify a copyright or other proprietary rights notice in it; (f) use it to reproduce, distribute, display, store, transmit or use material or content protected by copyright or other intellectual property right (including the rights of publicity or privacy) without first obtaining the permission of the owner; (g) use it to damage the property of another; (h) use it in any manner which violates any applicable law or regulation; (i) use it to create, use, send, store or run viruses or other harmful computer code; or (j) use it in any manner that, in OvertureXL’s reasonable judgment, circumvents the ordinary use or operation of the OvertureXL Technology. or use such software, all understandings, agreements or warranties, if any, shall be directly between the vendor and you.

Linking

Linking to the Website

You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You are prohibited from linking to any other page of the Website without our express written permission. We reserve the right to withdraw linking permission without notice. The Website must not be framed on any other site, nor may you create a link to any part of the Website other than the homepage. You must not establish a link from any website that is not owned by you. You agree to cooperate with us in stopping any unauthorized framing or linking.

Links from the Website

If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links from advertisers, including banner advertisements. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the applicable terms and conditions of use for such websites.

1. Monitoring, Enforcement and Feedback

OvertureXL has the right but not the obligation to:

  • Remove or refuse to post any User Contribution, and/or terminate your access to all or part of the Website for any reason or no reason, in our sole discretion, including without limitation any violation of these Terms of Use or the Privacy Policy.
  • Disclose your identity to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
  • Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website

Without limiting the foregoing, OvertureXL has the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting any materials on or through the Website. YOU WAIVE AND HOLD OVERTUREXL HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY OVERTUREXL DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER OVERTUREXL OR LAW ENFORCEMENT AUTHORITIES. OvertureXL can neither review all material before it is posted on the Website nor ensure prompt removal of objectionable material after it has been posted and assumes no liability for any action or inaction regarding transmissions, communications or content provided by any user or third parties. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this paragraph.

Feedback & Suggestions

OvertureXL shall have a perpetual, irrevocable, royalty-free, fully-paid, sublicensable, transferable, non-exclusive, worldwide license to make, use, sell, offer for sale, import or otherwise use or commercially exploit for any purpose, any feedback, comments, suggestions, communications, and requests for improvements or enhancements relating to the Website and the OvertureXL Products.

Legal Considerations

Confidentiality

You agree that any information provided to you in connection with the OvertureXL Website will be considered and referred to as (“OvertureXL Confidential Information”) Notwithstanding the foregoing, OvertureXL Confidential Information shall not include: (a) information that is generally and legitimately available to the public through no fault or breach of yours; (b) information that is generally made available to the public by us; (c) information that is independently developed by you without the use of any OvertureXL Confidential Information; (d) information that was rightfully obtained from a third party who had the right to transfer or disclose it to you without limitation; or (e) any third-party software and/or documentation provided to you by us and accompanied by licensing terms that do not impose confidentiality obligations on the use or disclosure of such software and/or documentation.

Unless otherwise expressly agreed or permitted in writing by OvertureXL, you agree not to disclose, publish, or disseminate any OvertureXL Confidential Information to anyone. You agree not to use OvertureXL Confidential Information in any way, including, without limitation, for your own or any third party’s benefit without the prior written approval of an authorized representative of OvertureXL in each instance. You further agree to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of OvertureXL Confidential Information. You acknowledge that unauthorized disclosure or use of OvertureXL Confidential Information could cause irreparable harm and significant injury to OvertureXL that may be difficult to ascertain. Accordingly, you agree that we will have the right to seek immediate injunctive relief to enforce your obligations under this Agreement in addition to any other rights and remedies we may have. If you are required by law, regulation or pursuant to the valid binding order of a court of competent jurisdiction to disclose OvertureXL Confidential Information, you may make such disclosure, but only if you have notified us before making such disclosure and have used commercially reasonable efforts to limit the disclosure and to seek confidential, protective treatment of such information. A disclosure pursuant to the previous sentence will not relieve you of your obligations to hold such information as OvertureXL Confidential Information.

Copyright Infringement

We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Website infringe your copyright, you may request removal of those materials from the Website by submitting written notification (a “DCMA Notice”) to our copyright agent (designated below) in accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”)

Our designated Copyright Agent to receive DMCA Notices is:

OvertureXL, LLC

Via Contact us on our website

If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.

If you believe that material you posted on the site was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with us by submitting written notification to our copyright agent (identified above) pursuant to the DMCA. It is the policy of OvertureXL to terminate the user accounts of infringers.

Regional Legal Considerations

The owner of the Website is based in the state of California in the United States. The Website can be accessed from countries around the world. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws. Access to the Website from territories where the Website or any of its services or products are illegal is prohibited. You acknowledge that you remain responsible at all times for your compliance with U.S. and all applicable export and related statutes and regulations.

Disclaimer of Warranties

OvertureXL cannot and does not promise or warrant that any aspect of the Website including software, Technology, Documentation or other intellectual property is free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. OVERTUREXL WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

AS BETWEEN YOU AND OVERTUREXL, YOUR USE OF THE WEBSITE, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE, IS AT YOUR OWN RISK. THE WEBSITE AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE, ARE PROVIDED TO YOU BY OVERTUREXL ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER OVERTUREXL NOR ANY PERSON ASSOCIATED WITH OVERTUREXL MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, SUITABILITY, ACCURACY OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER OVERTUREXL NOR ANYONE ASSOCIATED WITH OVERTUREXL REPRESENTS OR WARRANTS THAT THE WEBSITE OR ANY SERVICES OR MATERIALS OBTAINED THROUGH THE WEBSITE, WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

OVERTUREXL HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE WEBSITE OR ANY SERVICES OR ITEMS OBTAIN THROUGH THE WEBSITE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.

Limitation of Liability

EXCEPT TO THE EXTENT THAT A DISCLAIMER OF LIABILITY IS PROHIBITED UNDER APPLICABLE LAW, IN NO EVENT WILL OVERTUREXL, ITS AFFILIATES AND ITS LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE OR SERVICES OR MATERIALS MADE AVAILABLE THROUGH THE WEBSITE, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.

Indemnification

To the maximum extent permitted by applicable laws, you agree to defend, indemnify and hold us, our affiliates and licensors and their respective officers, directors, employees, contractors, agents, licensors and suppliers harmless from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees and other costs of defense) resulting from your violation of these Terms of Use or your use of the Website, including, without limitation, any use of the Website’s content, unpaid tax liability, services and products other than as expressly authorized in these Terms of Use or your use of any information obtained from the Website. We will be entitled, at our sole expense, to participate in the defense and settlement of the claim or action with counsel of our choosing. You may not settle any claims without our prior written consent (which will not be unreasonably withheld). You shall have no obligation to indemnify OvertureXL against a claim to the extent that a claim is based on the alleged infringement of intellectual property rights by the OvertureXL Products.

Export Restrictions

You may not access, download, use or export materials posted to the Website in violation of U.S. export laws or regulations or in violation of any other applicable export or import laws or regulations. You agree to comply with all export laws and restrictions and regulations of any United States or foreign agency or authority.

You acknowledge that the Non-Production Instances, Apps, Documentation and Development Tools are subject to the U.S. Export Administration Regulations (the “EAR”) and you shall comply with the EAR. Without limiting the foregoing, you represent and warrant that: (a) you are not located in, and shall not use the Documentation and Development Tools from, any country that is subject to U.S. export restrictions (currently including, but not necessarily limited to, Cuba, Iran, North Korea, Sudan and Syria); (b) you shall not use the Documentation and Development Tools in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, sounding rockets or unmanned air vehicle systems; and (iii) you are not prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. In addition, you are responsible for complying with any local laws that may impact your right to import, export or use the Documentation and Development Tools. U.S. Government Rights

U.S. Government Rights

All OvertureXL software is commercial computer software and all services are commercial items. “Commercial computer software” has the meaning set forth in Federal Acquisition Regulation (“FAR”) 2.101 for civilian agency purchases and the Department of Defense (“DOD”) FAR Supplement (“DFARS”) 252.227-7014(a)(1) for defense agency purchases. If the software is licensed or the services are acquired by or on behalf of a civilian agency, We provide the commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of these Terms of Use as required in FAR 12.212 (Computer Software) and FAR 12.211 (Technical Data) and their successors. If the software is licensed or the services are acquired by or on behalf of any agency within the DOD, we provide the commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of these Terms of Use as specified in DFARS 227.7202-3 and its successors. Only if this is a DOD prime contract or DOD subcontract, the Government acquires additional rights in technical data as set forth in DFARS 252.227-7015. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS or other clause or provision that addresses Government rights in computer software or technical data.

Waiver and Severability

No waiver of these Terms of Use by us shall be deemed a further or continuing waiver of such term or condition or any other term or condition, and any failure of ours to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision. If any provision of these Terms of Use is held by a court of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

Third Party Beneficiaries

There are no third-party beneficiaries to these Terms of Use.

Termination

OvertureXL may terminate these Terms of Use at any time for any reason by giving you written notice, and all licenses, permissions and other rights granted to you hereunder shall immediately terminate Notwithstanding the termination of these Terms of Use for any reason, Sections 3 (Intellectual Property) and 6 (Legal Considerations) herein shall survive.

Governing Law and Jurisdiction

These Terms of Use and any dispute or claim arising out of, or related to, them, their subject matter or their formation (in each case, including non-contractual disputes or claims) shall be governed by and construed in accordance with the internal laws of the State of Delaware in the United States without giving effect to any choice or conflict of laws provision or rule. Any legal suit, action or proceeding arising out of, or related to, these Terms of Use or the Website shall be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware. You hereby irrevocably waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

Entire Agreement

The Terms of Use and our Privacy Policy constitute the sole and entire agreement between you and us with respect to the Website and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Website. OvertureXL, LLC. All rights reserved.

© 2022 OvertureXL. All Rights Reserved.