Xceptors terms and conditions

This agreement ("Agreement") is between you ("you" or "Customer") and the publisher ("Publisher") from which you are procuring Offerings (defined below) and governs your use of Offerings purchased through either Microsoft AppSource or Azure Marketplace (collectively, "Marketplace").

This Agreement is the parties' entire agreement on this subject and merges and supersedes all related prior and contemporaneous agreements. By agreeing to these terms, you represent and warrant that you have the authority to accept this Agreement, and you also agree to be bound by its terms. This Agreement applies to all Orders entered into under this Agreement. Capitalized terms have the meanings given under "Definitions."

This agreement is a modified version of the Standard Contract Microsoft has created to facilitate a transaction between Publisher and Customer. Both parties acknowledge that Microsoft is not a party to this Agreement, nor in anyway responsible for the parties’ actions or obligations under this Agreement. Microsoft’s relationship with Customer and Publisher is solely governed by Microsoft’s respective agreements with those parties; Microsoft otherwise disclaims all liability resulting from this Agreement (including any Orders).

1. Offerings

Publisher is offering a Credit for sale subject to the following terms:

1.1  Purchase of the Credit does not grant the Customer any license to the Publisher’s software.

1.2  The Credit can be used toward the purchase price of a license to Publisher’s software on terms to be agreed in a standalone agreement including price and the software to be licensed on Publisher’s standard terms. If the license purchased exceeds the value of the Credit, the balance must be paid.

1.3  Credit is solely for Customer’s own use and business purposes and are nontransferable except as expressly permitted under this Agreement or applicable law.

1.4  Credits are valid for 12 months from the date of issue. Unused values will not be refunded or attributed to any transactions after the expiry date.

1.5  Credits cannot be redeemed for cash, returned for a refund, or be replaced after expiry and are not legal tender, account cards, credit or debit cards or securities.

1.6  Reservation of Rights. Publisher reserves all rights not expressly granted in this Agreement. No rights will be granted or implied by waiver or estoppel.

1.7  Any Feedback is given voluntarily, and the provider grants to the recipient, without charge, a non-exclusive license under provider’s owned or controlled non-patent intellectual property rights to make, use, modify, distribute, and commercialize the Feedback as part of any of recipient’s products and services, in whole or in part and without regard to whether such Feedback is marked or otherwise designated by the provider as confidential. The provider retains all other rights in any Feedback and limits the rights granted under this section to licenses under its owned or controlled non-patent intellectual property rights in the Feedback (which do not extend to any technologies that may be necessary to make or use any product or service that incorporates, but are not expressly part of, the Feedback, such as enabling technologies).

2. Privacy

2.1  EU Standard Contractual Clauses. To the extent applicable, the parties will abide by the requirements of European Economic Area and Swiss data protection law regarding the collection, use, transfer, retention, and other processing of Personal Data from the European Economic Area and Switzerland. All transfers of Customer Data out of the European Union, European Economic Area, and Switzerland will be governed by the Standard Contractual Clauses, as designated by the European Commission, made available by the Publisher at the applicable URL for such terms or as otherwise communicated to Customer.

2.2  Personal Data. Customer consents to the processing of Personal Data by Publisher and its Affiliates, and their respective agents and Subcontractors, as provided in this Agreement. Before providing Personal Data to Publisher, Customer will obtain all required consents from third parties (including Customer’s contacts, partners, distributors, administrators, and employees) under applicable privacy and Data Protection Laws.

2.3  Processing of Personal Data; GDPR. To the extent Publisher is a processor or subprocessor of Personal Data subject to the GDPR, the Standard Contractual Clauses govern that processing and the parties also agree to the following terms in this subsection ("Processing of Personal Data; GDPR"):

1. Processor and Controller Roles and Responsibilities. Customer and Publisher agree that Customer is the controller of Personal Data and Publisher is the processor of such data, except when (a) Customer acts as a processor of Personal Data, in which case Publisher is a subprocessor or (b) stated otherwise in any Offering-specific terms. Publisher will process Personal Data only on documented instructions from Customer. In any instance where the GDPR applies and Customer is a processor, Customer warrants to Publisher that Customer’s instructions, including appointment of Processor as a processor or subprocessor, have been authorized by the relevant controller.
2. Processing Details. The parties acknowledge and agree that:

i.  the subject-matter of the processing is limited to Personal Data within the scope of the GDPR;

ii. the duration of the processing will be for the duration of the Customer’s right to use the Offering and until all Personal Data is deleted or returned in accordance with Customer instructions or the terms of this Agreement;

iii.  the nature and purpose of the processing will be to provide the Offering pursuant to this Agreement;

iv.  the types of Personal Data processed by the Offering include those expressly identified in Article 4 of the GDPR; and

v.  the categories of data subjects are Customer’s representatives and end users, such as employees, contractors, collaborators, and customers, and other data subjects whose Personal Data is contained within any data made available to Publisher by Customer.

3. Data Subject Rights; Assistance with Requests. Publisher will make information available to Customer in a manner consistent with the functionality of the Offering and Publisher’s role as a processor of Personal Data of data subjects and the ability to fulfill data subject requests to exercise their rights under the GDPR. Publisher will comply with reasonable requests by Customer to assist with Customer’s response to such a data subject request. If Publisher receives a request from Customer’s data subject to exercise one or more of its rights under the GDPR in connection with an Offering for which Publisher is a data processor or subprocessor, Publisher will redirect the data subject to make its request directly to Customer. Customer will be responsible for responding to any such request including, where necessary, by using the functionality of the Offering. Publisher will comply with reasonable requests by Customer to assist with Customer’s response to such a data subject request.
4. Use of Subprocessors. Customer consents to Publisher using the subprocessors listed at the applicable Publisher URL https://www.xceptor.com/privacy-policy as updated or amended from time to time or as otherwise communicated to Customer. Publisher remains responsible for its subprocessors’ compliance with the obligations herein. Publisher may update its list of subprocessors from time to time, by providing Customer at least 14 days notice before providing any new subprocessor with access to Personal Data. If Customer does not approve of any such changes, Customer may terminate any subscription for the affected Offering without penalty by providing, prior to expiration of the notice period, written notice of termination that includes an explanation of the grounds for non-approval.
5. Records of Processing Activities. Publisher will maintain all records required by Article 30(2) of the GDPR and, to the extent applicable to the processing of Personal Data on behalf of Customer, make them available to Customer upon request.

2.4  Security. Publisher will take appropriate security measures that are required by Data Protection Laws and in accordance with good industry practice relating to data security.

2.5  Support Data. Publisher may collect and use Support Data internally to provide technical support for the Offering. Publisher will not use Support Data for any other purpose unless otherwise agreed in writing by the parties.

3. Confidentiality

3.1  Non-Disclosure Agreement. The parties will treat all confidential information exchanged between the parties under this Agreement in accordance with the separate nondisclosure agreement ("NDA") executed by the parties. If no separate NDA is in effect, the following provisions apply to the parties’ exchange of confidential information.

3.2  Confidential Information. "Confidential Information" is non-public information that is designated "confidential" or that a reasonable person should understand is confidential, including, but not limited to, Customer Data, Support Data, the terms of this Agreement, and Customer’s account authentication credentials. Confidential Information does not include information that: (1) becomes publicly available without a breach of a confidentiality obligation; (2) the receiving party received lawfully from another source without a confidentiality obligation; (3) is independently developed; or (4) is a comment or suggestion volunteered about the other party’s business, products, or services.

3.3  Protection of Confidential Information. Each party will take reasonable steps to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship. Neither party will disclose Confidential Information to third parties, except to its Representatives, and then only on a need-to-know basis under nondisclosure obligations at least as protective as this Agreement. Each party remains responsible for the use of Confidential Information by its Representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify the other party.

3.4  Disclosure required by law. A party may disclose the other’s Confidential Information if required by law, but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order.

3.5  Duration of Confidentiality obligation. These obligations apply: (1) for Customer Data, until it is deleted by Publisher; and (2) for all other Confidential Information, for a period of five years after a party receives the Confidential Information.

6.  Representation and warranties

6.1  Publisher continuously represents and warrants that:

1. it has full rights and authority to enter into, perform under, and grant the rights in, this Agreement;
2. its performance will not violate any agreement or obligation between it and any third party;
3. while performing under this Agreement, Publisher will comply with law, including Data Protection Laws and Anti-Corruption Laws, and will provide training to its employees regarding Anti-Corruption Laws.

6.2  Disclaimer. Except as expressly stated in this Agreement, the Offering is provided as is. To the maximum extent permitted by law, Publisher disclaims any and all other warranties (express, implied or statutory, or otherwise) including of merchantability or fitness for a particular purpose, whether arising by a course of dealing, usage or trade practice, or course of performance.

8.  Limitation of liability

For each Offering, each party’s maximum, aggregate liability to the other under this Agreement is limited to direct damages finally awarded in an amount not to exceed the amounts Customer was required to pay for the Offerings, subject to the following:

1. No Indirect Damages. In no event will either party be liable for indirect, incidental, special, punitive, or consequential damages, or loss of use, loss of profits, or interruption of business, however caused or on any theory of liability.
2. Exceptions. No limitation or exclusions will apply to liability arising out of either party’s: (1) confidentiality obligations under Section 3 (except for liability related to Customer Data, which will remain subject to the limitations and exclusions above); (2) defense obligation under Section 7; (3) violation of the other party’s intellectual property rights; or (4) gross negligence, willful misconduct, or fraud.
   
   

9.  Pricing and payment

Microsoft will invoice and charge Customer under the terms of the Microsoft Commercial Marketplace Terms of Use and applicable Order.

10. Term and termination

10.1  Term. This Agreement is effective until terminated by a party, as described below. The term for each Order will be set forth therein.

10.2  Termination without cause. Orders once placed may not be terminated without cause.

10.3  Termination for cause. Without limiting other remedies it may have, either party may terminate this Agreement or any Order immediately on notice if (i) the other party materially breaches the Agreement or an Order, and fails to cure the breach within 30 days after receipt of notice of the breach; or (ii) the other party becomes Insolvent. Upon such termination, the following will apply:

1. All licenses granted under this Agreement will terminate immediately.
2. All amounts due under any unpaid invoices will become due and payable immediately.

10.4  Survival. The terms of this Agreement, including the applicable Order, that are likely to require performance, or have application to events that may occur, after the termination or expiration of this Agreement or any Order, will survive termination or expiration, including all indemnity obligations and procedures.

11. Miscellaneous 

11.1  Entire Agreement. This Agreement supersedes all prior and contemporaneous communications, whether written or oral, regarding the subject matter covered in this Agreement. If there is a conflict between any parts of this Agreement, the following order of precedence will apply:

1. Order; and
2. this Agreement.

11.2  Independent contractors. The parties are independent contractors. Customer and Publisher each may develop products independently without using the other’s Confidential Information.

11.3  Agreement not exclusive. Customer is free to enter into agreements to license, use, and promote the services of others.

11.4  Amendments. Publisher can vary or replace these conditions from time to time.

11.5  Assignment. Either party may assign this Agreement to an Affiliate, but it must notify the other party in writing of the assignment. Customer consents to the assignment to an Affiliate or third party, without prior notice, of any rights Publisher may have under this Agreement to receive payment and enforce Customer's payment obligations, and all assignees may further assign such rights without further consent. Furthermore, either party may assign this Agreement without the consent of the other party in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets. Any other proposed assignment of this Agreement must be approved by the non-assigning party in writing. Assignment will not relieve the assigning party of its obligations under the assigned Agreement. Any attempted assignment without required approval will be void.

11.6  Severability. If any part of this Agreement is held to be unenforceable, the rest of the Agreement will remain in full force and effect.

11.7  Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party.

11.8  No third-party beneficiaries. This Agreement does not create any third-party beneficiary rights except as expressly provided by its terms.

11.9  Notices. Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to Publisher must be sent to the address stated in the Order. Notices to Customer will be sent to the individual at the address Customer identifies on its account as its contact for notices. Publisher may send notices and other information to Customer by email or other electronic form.

11.10 Applicable law. This Agreement shall be governed by and construed in accordance with the laws of England and each of the parties hereto submit to the exclusive jurisdiction of the Courts of England.

11.11 Order of precedence. The body of this Agreement will take precedence over any conflicting terms in other documents that are part of this Agreement that are not expressly resolved in those documents. Terms in an amendment control over the amended document and any prior amendments concerning the same subject matter.

11.12 Government procurement rules. By accepting this Agreement, Customer represents and warrants that: (1) it has complied and will comply with all applicable government procurement laws and regulations; (2) it is authorized to enter into this Agreement; and (3) this Agreement satisfies all applicable procurement requirements.

11.13 Compliance with laws. Publisher will comply with all laws and regulations applicable to its provision of the Offerings. Publisher will obtain and maintain any approvals, licenses, filings, or registrations necessary to its performance, and will comply with all law (including law related to export, corruption, money laundering, or any combination of these). Customer must also comply with laws applicable to their use of the Offerings.

11.14 Construction. Neither party has entered this Agreement in reliance on anything not contained or incorporated in it. This Agreement is in English only. Any translation of this Agreement into another language is for reference only and without legal effect. If a court of competent jurisdiction finds any term of the Agreement unenforceable, the Agreement will be deemed modified as necessary to make it enforceable, and the rest of the Agreement will be fully enforced to affect the parties’ intent. Lists of examples following "including", "e.g", "for example", or the like are interpreted to include "without limitation", unless qualified by words such as "only" or "solely." This Agreement will be interpreted according to its plain meaning without presuming that it should favor either party. Unless stated or context requires otherwise:

1. all internal references are to this Agreement and its parties;
2. all monetary amounts are expressed and, if applicable, payable, in U.S. dollars;
3. URLs are understood to also refer to successors, localizations, and information or resources linked from within websites at those URLs;
4. a party’s choices under this Agreement are in its sole discretion, subject to any implied duty of good faith;
5. "written" or "in writing" means a paper document only, except where email is expressly authorized;
6. "days" means calendar days;
7. "may" means that the applicable party has a right, but not a concomitant duty,
8. "partner", if used in this Agreement or related documents, is used in its common, marketing sense and does not imply a partnership;
9. "current" or "currently" means "as of the Effective Date" but "then-current" means the present time when the applicable right is exercised or performance rendered or measured;
10. "notify" means to give notice under subsection (i) above; and
11. a writing is "signed" when it has been hand-signed (i.e., with a pen) or signed via an electronic signature service by a duly authorized representative of the signing party.

12.  Definitions

"Affiliate" means any legal entity that controls, is controlled by, or is under common control with a party.

"Anti-Corruption Laws" means all laws against fraud, bribery, corruption, inaccurate books and records, inadequate internal controls, money-laundering, and illegal software, including the U.S. Foreign Corrupt Practices Act.

"Control" means ownership of more than a 50% interest of voting securities in an entity or the power to direct the management and policies of an entity.

"Confidential Information" is defined in the "Confidentiality" section.

"Credit" a pre-paid sum that can be purchased by the Customer to obtain a licence for Publisher software based in terms to be agreed between the parties.

"Customer Data" means all data, including all text, sound, software, image or video files that are provided to Publisher or its Affiliates by, or on behalf of, Customer and its Affiliates through use of the Offering. Customer Data does not include Support Data.

"Data Protection Law" means any law applicable to Publisher or Customer, relating to data security, data protection and/or privacy, including Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to processing of personal data and the free movement of that data (“GDPR”), and any implementing, derivative or related legislation, rule, regulation, and regulatory guidance, as amended, extended, repealed and replaced, or re-enacted.

"Feedback" means ideas, suggestions, comments, input, or know-how, in any form, that one party provides to the other in relation to recipient’s Confidential Information, products, or services. Feedback does not include sales forecasts, future release schedules, marketing plans, financial results, and high-level plans (e.g., feature lists) for future products.

"Insolvent" means admitting in writing the inability to pay debts as they mature; making a general assignment for the benefit of creditors; suffering or permitting the appointment of a trustee or receiver for all or any of its (i.e., the non-terminating party’s) assets, unless such appointment is vacated or dismissed within 60 days from the date of appointment; filing (or having filed) any petition as a debtor under any provision of law relating to insolvency, unless such petition and all related proceedings are dismissed within 60 days of such filing; being adjudicated insolvent or bankrupt; having wound up or liquidated; or ceasing to carry on business.

"Offering" means all services, websites (including hosting), solutions, platforms, and products identified in an Order and that Publisher makes available under or in relation to this Agreement, including the software, equipment, technology, and services necessary for Publisher to provide the foregoing. Offering availability may vary by region.

"Order" means an ordering document used to transact the Offering via the Marketplace.

"Personal Data" means any information relating to an identified or identifiable natural person.

"Representatives" means a party’s employees, Affiliates, contractors, advisors and consultants.

"Standard Contractual Clauses" means the standard data protection clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR.

"Subcontractor" means any third party: (1) to whom Publisher delegates its obligations under this Agreement, including a Publisher Affiliate not contracting directly with Customer through an Order; or (2) who, in performing under a contract between it and Publisher or a Publisher Affiliate, stores, collects, transfers or otherwise processes Personal Data (obtained or accessed in connection with performing under this Agreement) or other Customer Confidential Information.

"Support Data" means all data, including all text, sound, video, image files, or software, that are provided to Publisher by or on behalf of Customer (or that Customer authorizes Publisher to obtain from an Offering) through an engagement with Publisher to obtain technical support for the Offering covered under this Agreement.