THESE TERMS AND CONDITIONS ("TERMS") SET OUT THE TERMS ON WHICH EXCLAIM, A MEIOSIS LLC. COMAPNY ("EXCLAIM", "US", "WE", "OUR") PROVIDE YOU ("YOU", "YOUR", "CUSTOMER") WITH ACCESS TO THE EXCLAIM SIGNAGE SERVICE ("SERVICE") AT WWW.EXCLAIMSIGNAGE.COM ("WEBSITE"). PLEASE READ THESE TERMS CAREFULLY AND ENSURE THAT YOU HAVE UNDERSTOOD THEM. BY CLICKING ON THE BUTTON MARKED "SIGN UP" YOU WARRANT THAT YOU UNDERSTAND AND ACCEPT THESE TERMS. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF YOUR EMPLOYER OR ACTING AS AN EMPLOYEE, YOU WARRANT THAT YOU ARE AUTHORIZED TO ENTER INTO LEGALLY BINDING CONTRACTS ON BEHALF OF YOUR EMPLOYER. THE SAME RIGHTS, LIMITATIONS AND RESTRICTIONS APPLY TO YOUR EMPLOYER. YOU AGREE THAT THESE TERMS ARE ENFORCEABLE AS IF THEY WERE A WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOUR EMPLOYER. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE CEASE USE OF THE SERVICE IMMEDIATELY. YOU ARE ADVISED TO PRINT AND RETAIN A COPY OF THESE TERMS FOR YOUR FUTURE REFERENCE.
"Adjustments" means an increase or decrease in the Fees payable by you during a Billing Month, calculated in accordance with clause 7; "Billing Month" shall have the meaning at clause 4.1; "Contract" means the contract between us and you for provision of the Service and which incorporates these Terms and your online registration form; "Content" means any and all data, files, documents, multimedia files, third party links, images, videos, and any other information or material whatsoever (in any format) submitted by you or the Users to the Service; "Fee" means the per Paired Screen monthly fee payable by you for use of the Service as specified on the Website or otherwise agreed between us and you in writing; "Free Trial" shall have the meaning attributed at clause 8.1; "Hardware" means your computer, laptop or other device used to access and Use the Service; "Intellectual Property Rights" means all intellectual property rights including without limitation, performer's reproduction rights, performer's distribution rights, performer's rental rights and performer's lending rights (collectively referred to as "Performer's Property Rights"), patents, utility models, trade and service marks, trade names, domain names, right in designs, copyrights, moral rights, topography rights, rights in databases, trade secrets and know-how and in all cases whether or not registered or register able and including registrations and applications for registration of any of these and rights to apply for the same, and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these anywhere in the world; "Login Details" means the unique username and password required for all Users to access the Service; "Minimum Requirements" means any minimum specifications required for your Hardware in order for you to use the features and functionality of the Service, as may be specified on the Website from time to time; "Network" means the electronic communications network used by us to provide the Service; "Pair" or "Paired" means a Screen that you have registered to the Service permitting you to view your Content on the Screen using your Hardware; "Purpose" means to use, copy, compress, modify and transmit in order to provide you with the Service and perform our obligations under these Terms; "Screen" means any television, monitor or other device supported by the Service which you have Paired; "Service" means the digital signage service made available by us to you through the Website; "Use" means having access to the Service for your organization's own internal business purposes only; and "User" means an individual employee of your organization who you have permitted to use the Service and who has been given the Login Details.
2.1 The Service and Website are owned and managed by Exclaim, a Meiosis LLC. Company, a company registered in the Unites States, Ohio with the company registration number 2329534 and having its registered address at 14 W 1 st ST, STE 303 Dayton, OH 45402.
2.2 The Service is intended to be used for commercial purposes. If you wish to use the Service for private, non commercial purposes, please contact us using the address at clause 16.
3.1 In order to access and Use the Service you shall be required to register using the online registration form made available to you on the Website. By completing the online registration form, you consent to us conducting verification and security procedures in respect of the information provided in such online registration form.
3.2 Upon the completion and submission of the online registration form by you on the Website, you shall be sent an email ("Confirmation Email") confirming your registration with us.
3.3 You hereby warrant that the information provided by you is true, accurate and correct. You further warrant that you shall promptly notify us in the event of any changes to such information provided.
3.4 You shall keep, and procure that all Users keep, any Login Details confidential and secure. Without prejudice to our other rights and remedies, we reserve the right to promptly disable your Login Details and suspend your access to the Service in the event we have any reason to believe that any User has breached any of the provisions set out herein.
4.1 Your Contract with us shall commence on the date we send your Confirmation Email. Your Contract shall continue for the Free Trial period and unless terminated in accordance with clause 8 below, on expiry of the Free Trial your Contract shall automatically renew for further recurring periods of one (1) month (each a "Billing Month") unless terminated by you or us in accordance with these Terms.
4.2 You may terminate your Contract with us at any time by providing notice in writing or by e-mail sent to the postal or e-mail address provided at clause 16, such notice to expire at the end of the Free Trial or the relevant Billing Month (as applicable) in which we received your notice to terminate.
4.3 We may give you notice to terminate your Contract and your Use of the Service at any time, your Contract and Use of the Service to terminate at the end of then current Billing Month.
4.4 We may suspend or terminate your access and Use of the Service immediately on notice to you in the event that:
4.4.1 third party services and network providers cease to make the third party service or network available to us;
4.4.2 you fail to comply with one or more of these Terms;
4.4.3 we believe that there has been fraudulent use, misuse or abuse of features and functionalities of the Service (in whole or in part); or
4.4.4 we believe that you have provided us with any false, inaccurate or misleading information, and for the avoidance of doubt, no Fees shall be refunded to you in the event of termination by us in accordance with the foregoing.
4.5 Upon termination of your Contract with us in accordance with this clause 4, your and any User's access to the Website and the Service shall cease and any Content will no longer be accessible through the Service. We may retain copies of your Content and/or other data (including any User's data) made available through the Service for auditing and/or tax purposes, or as may be required by us to comply with applicable law.
5.1 In consideration for payment of the applicable Fees, we hereby grant to you a non-exclusive, non-transferable (without a right to sub-license) license to access and Use, and permit Users to access and Use, the Service for the duration of your Contract. You acknowledge that you shall be responsible for all Use of the Service by Users and shall ensure that these Terms are brought to the attention of all Users. You shall be liable for breach of these Terms by a User as if it were a breach by you.
5.2 The Service permits you and your Users to Pair Screens to view Content. Although the number of Screens that may be Paired is unlimited, we reserve the right to impose restrictions on the number of Screens you have Paired at any one time on notice you. You may Pair or un-Pair Screens at any time.
5.3 We shall use reasonable endeavors to make the Service available to you and the Users at all times, but we cannot guarantee an uninterrupted or fault free service.
5.4 Our ability to provide the Service may be impaired by conditions or circumstances that are beyond our control, including, without limitation third party service providers, geographic or atmospheric conditions, local physical obstructions, software and hardware features or functionality of your personal computer, operating system and the number of other users logging onto the Service, server and/or Network at the same time. We shall take reasonable action to minimize the disruption caused by such circumstances but you acknowledge, agree and accept that some such interruptions may not be avoidable.
5.5 The Network is not controlled by us and may from time to time be upgraded, modified, subject to maintenance work or otherwise amended by the owner of the Network. Such circumstances may result in the Service being temporarily unavailable. We will take reasonable action to minimize the disruption caused by such circumstances, but some such interruptions may not be avoidable.
5.6 We use industry standard security measures to protect against the loss, misuse and alteration of the information, data, and/or content handled by our Service. However, you acknowledge and agree that we cannot guarantee complete security of such information, data, and/or content or that our security measures will prevent hacks, worms, bugs, trojans or such other similar devices that may allow access to or unauthorized viewing of such information, data, and/or content.
5.7 We reserve the right to make changes to the Service or part thereof, from time to time at our sole discretion, and we may from time to time update, add, remove, modify and/or vary any features or functionalities of the Service.
5.8 We offer support services between 9am – 5pm, Easter Time, Monday to Friday for the duration of your Contract in respect of your Use of the Service, which comprises of:
5.8.1 advice on access and Use of the Service; and
5.8.2 diagnosis of interruptions to the Service ("Fault"), in each case by e-mailing us at [email protected]
5.9 Fault diagnosis is subject to you or any User providing a clear and accurate description of any Fault requiring support, including the circumstances in which it arose, the area of the Service to which the Fault relates and any other information reasonably required by us to remedy the Fault.
5.10 Subject to receiving a description in accordance with clause 5.9 above, we shall use our reasonable efforts to resolve the Faults within a reasonable time following receipt of your or a User's request pursuant to clause 5.8.
5.11 The support detailed in this clause 5 shall not include the diagnosis and rectification of any Fault resulting from:
5.11.1 use of the Service other than in accordance with these Terms or the use of the Service for a purpose for which it was not designed;
5.11.2 a fault in your or a third party's software, hardware, network connections or application or any upgrade in respect thereof; or
5.11.3 a fault in the equipment or in any other software operating in conjunction with or integrating with the Service.
6.1 You agree that you are solely responsible and liable for all your activities on the Website and Use of the Service, including that of your Users. You shall be liable for any breach of these Terms by a User as if you had breached the Terms.
6.2 You shall promptly notify us in the event of a breach of security or any unauthorized Use of Login Details.
6.3 You are responsible for ensuring that any Content is not deemed to be offensive, illegal, inappropriate or that in any way:
6.3.1 promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
6.3.2 harasses or advocates harassment of another person;
6.3.3 displays pornographic or sexually explicit material;
6.3.4 promotes any conduct that is abusive, threatening, obscene, defamatory or libelous;
6.3.5 promotes any illegal activities;
6.3.6 provides instructional information about illegal activities, including violating someone else's privacy or providing or creating computer viruses;
6.3.7 promotes or contain information that you know or believe to be inaccurate, false or misleading;
6.3.8 engages in the promotion of contests, sweepstakes and pyramid schemes, without our prior written consent;
6.3.9 contains any virus or other thing or device which may prevent, impair or otherwise adversely affect the operation of the Website; or
6.3.10 infringes any Intellectual Property Rights or any other proprietary rights of any third party.
6.4 You hereby grant, and procure that any User grants; to us a non-exclusive, worldwide royalty free license to use the Content and all other materials submitted by you or any User for the Purpose.
6.5 You acknowledge that the Service does not verify the rights and restrictions applicable to any Content. Where you do not own the Content, you are solely responsible for checking the relevant license rights and restrictions applicable to any Content. We shall not be liable to you for any losses, damages, costs or expenses incurred by you arising out of or in connection with your use of any Content through the Service.
6.6 You warrant and represent that you own, are licensed or otherwise have a right to use any and all the Intellectual Property Rights in any Content that you submit to the Service. You hereby indemnify and hold us harmless against all damages, losses, costs and expenses (including reasonable legal expenses) incurred or suffered by us arising out of or in connection with any claim made against us by a third party arising out of or in connection with our use or possession of any Content in accordance with these Terms.
6.7 You further agree that at all times, you shall, and procure that any User shall:
6.7.1 not use Login Details with the intent of impersonating another individual;
6.7.2 not allow any other person other than a User to use your Login Details;
6.7.3 not do anything likely to impair, interfere with or damage or cause harm or distress to any persons using the Service and the Website or in respect of the Network;
6.7.4 not use the Website and/or the Service, the content therein and/or do anything that will infringe any intellectual property right or other rights of any third parties;
6.7.5 not use any information obtained using the Service and/or the Website otherwise than in accordance with these Terms;
6.7.6 comply with all our instructions and policies from time to time in respect of the Website and your Use of the Service;
6.7.7 co-operate with any reasonable security or other checks or requests for information made by us from time to time; and
6.7.8 use the information made available to you using the Service and on the Website at your own risk.
6.8 In the event that You or any User breach any of the terms in this clause 6, or we in our sole and absolute discretion, reasonably suspect that you or any User have breached any of the terms set out in this clause 6, we reserve the right to take any action that we deem to be necessary, including without limitation, the termination of your Contract forthwith and without notice.
7.1 All Fees are invoiced monthly in advance and are based on the number of Screens you have Paired at the start of the then current Billing Month, taking into account any Adjustment.
7.2 Adjustments may be made to your invoice, which are calculated on a pro-rated basis in relation to Screens Paired and/or un-Paired part way through the previous Billing Month.
7.3 Adjustments will increase the Fees payable by you for your current Billing Month where you have Paired additional Screen(s) part way through the previous Billing Month (i.e. Paired Screen(s) you were not invoiced Fees for at the start of the previous Billing Month).
7.4 Adjustments will decrease the Fees payable by you for your current Billing Month where you have downgraded your plan during the previous Billing Month. Adjustments in accordance with the foregoing are subject to you having been invoiced Fees for the applicable Plan at the start of the previous Billing Month.
7.5 All Fees are non-refundable, unless otherwise agreed by us in writing.
7.6 Any invoices are payable within fourteen (14) days of the invoice date. If we do not receive your payment by the applicable due date, we reserve the right to withhold access and/or terminate your Contract. If you wish to terminate your Contract, you shall be required to comply with clause 4.
7.7 We reserve the right to increase the Fees at any time on notice to you, which shall take effect from the start of the next Billing Month following the Billing Month in which we gave notice to you.
7.8 All Fees payable hereunder are exclusive of VAT or other sales tax, which will be added at the applicable rate.
8.1 We offer you a one-time free trial for such period set out on the Website from time to time, during which you can try out Use of the Service for free ("Free Trial"). You acknowledge that during any Free Trial, the Service may have certain restrictions and limited functionality (e.g. a limit on the number of Screens that may be Paired). Upon the expiration of the Free Trial, the credit card submitted will automatically be charged to conintue access to use the service
8.2 On expiry of the Free Trial, you will have the option to either (i) continue access to the Service by allowing Exclaim to automaticaly charge the credit card you submitted during account registration; or (ii) cease access to and Use of the Service by user initiated canellation.
8.3 During the Free Trial, you agree that we will have the right to send you communications, notices and news about the Service to your e-mail address and to use any alternate email address you may have provided.
8.4 We reserve the right to modify, cancel and/or limit this Free Trial offer at any time.
8.5 If you choose not to continue Use of the Service after the Free Trial, you acknowledge and agree that all Content shall no longer be accessible through the Service on expiry of the Free Trial or by user initated cancellation of your account.
9.1 You hereby warrant that (a) all Users are at least 18 years old; (b) you have the right and capacity to enter into and be bound by these Terms; and (c) you shall comply with all applicable laws regarding the Use of the Service.
9.2 The Service is provided to assist with viewing Content on Screens and should not be used as a back-up facility. You should ensure that you and the Users have adequate back-up facilities for any Content and we shall not be liable for any losses or damages incurred by you or any Users arising out of or in connection with your failure to implement adequate back-up facilities in respect of any Content.
9.3 You acknowledge that we use compression techniques in order to relay Content on Screens, which may result in a reduction in the image quality when viewed on a Screen. We cannot guarantee that any attempt to Pair a Screen will be successful and may be subject to your selected Screen meeting certain specifications specified by us from time to time.
9.4 Links to third party websites may appear on the Website from time to time. Such third party websites are not our responsibility and we accept no liability for the availability, suitability, reliability or content of such third party websites and third party software.
9.5 We shall not be liable for any delay or failure to provide the Service and/or make the Website available for reasons that is due to third parties including without limitation internet service providers, data centers, server hosting companies and telecommunication providers.
9.6 All warranties, representations, guarantees, conditions and terms other than those expressly set out herein whether express or implied by statute, common law, trade usage or otherwise, and whether written or oral are hereby expressly excluded to the fullest extent permissible by law. Consequently all information, advice, suggestions and recommendations made available to you are provided to you on an "as is" basis.
9.7 Nothing in these Terms shall be deemed to exclude, restrict or limit liability for the following categories:
9.7.1 death or personal injury resulting from negligence;
9.7.2 any liability for fraudulent misrepresentation;
9.7.3 any act of liability caused through willful default; or
9.7.4 any indemnity provided hereunder.
9.8 Subject to clause 9.7, neither you or us shall be responsible for any:
9.8.1 loss of profits, sales, business, or revenue;
9.8.2 loss or corruption of data, information or software;
9.8.3 loss of business opportunity;
9.8.4 loss of anticipated savings;
9.8.5 loss of goodwill; or
9.8.6 special, indirect or consequential loss, whether such losses, damages, costs and expenses resulted from your or our negligence, failure to comply with these Terms or otherwise.
9.9 Subject to clause 9.7, our maximum aggregate liability to you under, arising from or in connection with your Contract, whether arising in contract, tort (including negligence) or otherwise, shall not exceed the Fees paid by you to us under your Contract in the twelve (12) months prior to the month in which the event or series of events arose (and in the event less than 12 months have elapsed, our aggregate liability shall be limited to the Fees payable by you in the first 12 months of your Contract, to be calculated by averaging the Fees paid (or payable in the case of Fees invoiced but not yet paid) by you during the preceding months).
10.1 We and/or our licensors own all rights in the Intellectual Property Rights relating to the Service and the Website. All right, title and interest in and to the Service and the website will remain exclusively with us and/or our licensors.
10.2 You are expressly prohibited from:
10.2.1 reproducing, copying, editing, transmitting, uploading or incorporating into any other materials, any of the Service or the Website; and
10.2.2 removing, modifying, altering or using any registered or unregistered marks/logos/design owned by us and/or its licensors, and doing anything which may be seen to take unfair advantage of our reputation and goodwill or could be considered an infringement of any of the rights in the Intellectual Property Rights owned by and/or licensed to us.
11.1 You shall ensure that your and any User's Use of the Service is compliant with all relevant applicable laws, regulations and policies relating to data protection.
11.2 We may collect and process the following information:
11.2.1 information that you provide to us from time to time, including information provided at the time of registering to use our Website, Content or any requests for further information or services. We may also ask you for information when you report a problem with our Website;
11.2.2 if you or any User contacts us, we may keep a record of that correspondence;
11.2.3 details of Users' visit to the Website and use of the Service, including searches requested, page response times, lengths of visit;
11.2.4 details of Users' use of the Service including, but not limited to, login information, browser type and version, traffic data and other communication data, and the resources that Users access, so we may compile statistics relating to use of the Service.
11.3 We take appropriate measures to ensure that any Personal Data is kept secure and for the duration of your use of our Service. Unfortunately, the transmission of information via the internet is not completely secure. Although we will do our best to protect Personal Data, we cannot guarantee the security of Users' data when transmitted to our Website; any transmission is at your own risk. Once we have received your information, we will use reasonable procedures and security features to try to prevent unauthorized access.
11.4 We use information held about Users in the following ways:
11.4.1 to ensure that our Service is presented in the most effective manner for you and your Users;
11.4.2 to carry out our obligations arising from any contracts entered into between you and us;
11.4.3 to notify you about changes to our Service;
11.5.4 as part of our efforts to keep our Service safe and secure;
11.4.5 to make suggestions and recommendations to you and Users about services that may be of interest to you or them; and
11.4.6 to make improvements to the Service.
11.5 We may disclose User personal data to:
11.5.1 business partners, suppliers and sub-contractors for the performance of any contract we enter into with them or you;
11.5.2 providers that assist us in the improvement and optimization of the Service;
11.5.3 in the event that we sell or buy any business or assets, in which case we may disclose User personal data to the prospective seller or buyer of such business or assets;
11.5.4 if we or substantially all of our assets are acquired by a third party, in which case personal data held by us will be one of the transferred assets;
11.5.5 if we are under a duty to disclose or share User personal data in order to comply with any legal obligation, or in order to enforce or apply our Terms and other agreements; or
11.5.6 to protect the rights, property, or safety of Exclaim, a Meiosis LLC. Company, the Service and any third party we interact with to provide the Website.
12.1 You will not, and procure that the User will not, misuse the Website by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorized access to the Website, the server on which the Website is stored or any server, computer or database connected to our Website. You must not attack the Website via a denial-of- service attack or a distributed denial-of service attack.
12.2 By breaching this provision, you would commit a criminal offence under the Computer Misuse Act 1990. We will report any such breach to the relevant law enforcement authorities and will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right, together with any User's right, to use the Website will cease immediately.
12.3 We 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, or any User's, use of the Website or to your, or any User downloading of any material posted on it, or on any website linked to it.
13.1 Subject to your prior approval, we may in any of our marketing material refer to you as our customer and refer to the type of services that we have provided to you.
13.2 Subject to your prior approval, we may publish and circulate a case study describing the Service supplied by us to you, including aggregate figures relating to your use of the Service and the benefits it has brought to your business (for use by us as a marketing tool).
14.1 Unless otherwise set out to the contrary in these Terms, each party (the "Receiving Party") shall keep confidential all information and documentation disclosed by the other party (the "Disclosing Party") to the Receiving Party or of which the Receiving Party becomes aware which in each case relates to any operations, products, processes, dealings, trade secrets or the business of the Disclosing Party or which is identified by the Disclosing Party as confidential ("Confidential Information") and will not use any Confidential Information for any purpose other than the performance of its obligations under these Terms and/or improving performance of the Service. Other than to its employees and sub-contractors to the extent that it is reasonably necessary for the purpose of performing its obligations under these Terms, the Receiving Party shall not disclose Confidential Information to any third party without the prior written consent of the Disclosing Party.
14.2 The obligations contained in Clauses 14.1 shall not apply to any Confidential Information which is:
14.2.1 on the date your Contract comes into effect, or at any time after that date, in the public domain other than through breach of these Terms by the Receiving Party;
14.2.2 furnished to the Receiving Party without restriction by a third party having a bona fide right to do so;
14.2.3 required to be disclosed by the Receiving Party by law or regulatory requirements of any stock exchange, provided that the Receiving Party shall give the Disclosing Party as much notice as reasonably practicable of the requirement for such disclosure.
15.1 If we fail at any time to insist upon strict performance of our obligations under these Terms, or if it fails to exercise any of the rights or remedies to which it is entitled to under these Terms, this will not constitute a waiver of any such rights or remedies and shall not relieve you from compliance with such obligations.
15.2 You shall comply with all foreign and local laws and regulations which apply to your Use of the Website in whatever country you are physically located, including without limitation, export control laws and regulations.
15.3 Neither party will be responsible for delays resulting from circumstances beyond the reasonable control of such party, provided that the nonperforming party uses reasonable efforts to avoid or remove such causes of non-performance and continues performance hereunder with reasonable dispatch whenever such causes are removed.
15.4 A waiver by us of any default shall not constitute a waiver of any subsequent default.
15.5 No waiver by us of any of the Terms shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
15.6 All notification and communication should be sent to the contact details set out in clause 16 below (in the case of Exclaim) or the contact details given by you in the online registration form on the Website. A notice or communication is deemed given: (i) if delivered personally, when left at the relevant party's address; (ii) if sent by post, two working days after posting it; (iii) if sent by e-mail on completion of its transmission.
15.7 If any of these Terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent, be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.
15.8 Your Contract represents the entire agreement between you and us in respect of your use of the Website and shall supersede any prior agreement, understanding or arrangement between us, whether oral or in writing.
15.9 You acknowledge that in entering into these Terms, you have not relied on any representations, undertaking or promise given by or implied from anything said or written whether on the Website, the Internet or in negotiation between us (whether made innocently or negligently) except as expressly set out in these Terms.
15.10 These Terms are governed by and construed in accordance with United States Law. The Courts of the United States of America shall have exclusive jurisdiction over any disputes arising out of these Terms.
15.11 We may alter or amend these Terms by giving reasonable notice on our Website. By continuing (or Users continuing) to Use the Service after expiry of the notice period, you will be deemed to have accepted any amendment to these Terms.
16.1 Please direct any queries about these terms to: [email protected]