Terms of Service

Effective Date: April, 17, 2024

This Agreement governs your use of all services provided by DXterity Solutions, including, but not limited to, our software products, cloud-based solutions, consulting services, and support services. It contains, among other things, warranty disclaimers, liability limitations, and use limitations.

TERMS OF SERVICE AGREEMENT BETWEEN 27 SOFTWARE dba DXTERITY SOLUTIONS AND CUSTOMER

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

  1. ACCEPTANCE

The software that is the subject of this Terms of Service Agreement is known as “DX9” (the “Product”).  The Product and all accompanying documentation is licensed and not sold.  The Product is protected by copyright laws and treaties, as well as laws and treaties related to other forms of intellectual property.  27 Software U.S., Inc. dba DXterity Solutions (“DXterity Solutions”) owns intellectual property rights in the Product.  The Licensee’s (“the Customer’s”) license to download, use, copy, or change the Product is subject to these rights and to all the terms and conditions of this Software Subscription License Agreement.

CUSTOMER MUST AGREE TO ALL OF THE TERMS OF THIS AGREEMENT BEFORE CUSTOMER WILL BE ALLOWED TO DOWNLOAD THE SOFTWARE PRODUCT.  IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CUSTOMER MUST SELECT “DECLINE” AND IS THEREBY PROHIBITED FROM INSTALLING, USING OR COPYING THE SOFTWARE PRODUCT.

BY SELECTING THE “ACCEPT” OPTION AND DOWNLOADING THE SOFTWARE PRODUCT OR BY INSTALLING, USING, OR COPYING THE SOFTWARE PRODUCT, CUSTOMER ACCEPTS AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. 

 

  1. DEFINITIONS
    1. “Content” means any and all information, data, graphics, text, user submissions, and other materials that are input into the Hosted Environment by, through or on behalf of the Customer or User(s). Such Content shall be exclusively owned by the Customer but shall not include certain “generated code” as described in Section 9(B) herein. The Customer is responsible for the legality, reliability, integrity, accuracy, and quality of the data you input into the Product.
  1. “Hosted Environment” means a hardware/software system combination under the control of DXterity Solutions (the “Licensor”), on which the Product, or any portion thereof, is run.
  1. “Subscription Order” means the Customer’s purchase(s) from DXterity Solutions. Subscription Orders shall be deemed incorporated by reference herein.  Subscription Orders shall contain a description of the software to be downloaded and any implementation or configuration services (if any) to be performed for the Customer by DXterity Solutions, which services shall be outlined as a separate line item on the Subscription Order, including any applicable charge for services.  Except for any initial implementation or configuration services, all changes and customization of the Product shall be performed pursuant to proposals from DXterity Solutions to the Customer that have been accepted in writing by the Customer as Addenda to the initial Subscription Order.
  1. “Services” means collectively, the hosting and the support services as described in Section 4 of this Agreement.
  1. “Users” means individuals who are employees of the Customer and are granted access to use the Product through the number of licenses established under this Agreement. Non-employees (which may include consultants and direct contractors to the Customer) may be Users, provided that the Customer obtains the appropriate license from DXterity Solutions for each individual User, and that each individual User (employee and/or non-employee) understands that they are subject to the License Restrictions in Section 3 and the Confidentiality provisions of Section 8 of this Agreement.
  1. “Work” means the work performed by DXterity Solutions, its employees and/or subcontractors pursuant to the executed Subscription Order and does not include any services that are not enumerated in the Subscription Order, as agreed upon by the parties, or any subsequently executed Addenda to Subscription Orders encompassing consulting services, changes to or customization of the Product.
  1. Data Protection and Privacy

dXterity Solutions is committed to protecting the privacy and security of your personal information. Our comprehensive Privacy Policy is accessible for further details at DXterity Solutions Privacy Policy: https://www.dxteritysolutions.com/dx9privacy.

 

  1. LICENSE GRANT
    1. Subject to the renewal provisions contained in Section 6(B) herein, this Agreement entitles the Customer (“Licensee”) to install the number of seats of the Product that is specified in the Subscription Sales Order.  Licenses are named user licenses. The Customer shall not install the thick client on more computers than the number of licensed seats.  In addition, the Customer may make one (1) archival copy of the Product.  The archival copy must be on a storage medium other than hard drive and may only be used for the reinstallation of the Product.  Multiple copy use or installation is only permitted if the Customer obtains an appropriate licensing agreement for each user and each copy of the Product.  For further information regarding multiple copy licensing and other questions about the Product, please contact:

Customer Support via email: support@dxteritysolutions.com

Subject to the Customer’s compliance with the terms of this Agreement during the Initial Term and any Renewal Term(s), DXterity Solutions hereby grants to the Customer a limited, non-exclusive, non-transferable, non-assignable, right and license to use the Product and the generated code for the approved number of Users (see above) via remote access to the Hosted Environment through the Internet (including any related Product documentation supplied therewith) solely for the Customer’s own internal purposes, and in accordance with all applicable documentation provided by DXterity Solutions.  Such right and license is not for distribution, transfer, sale or use for the benefit of any third party (except as allowed for under the definition of User herein), and Customer is responsible for ensuring that all Users are held to compliance with the License restrictions and Confidentiality provisions herein, as well as compliance with the Export restrictions contained in Section 12(J) herein.

  1. License Restrictions.
    1. The Customer (including its directors, officers, employees, agents, affiliates, parent, subsidiaries, consultants, advisors and other representatives, including legal counsel, accountants and financial advisors) shall not cause or permit the reverse engineering, disassembly, or de-compilation of the Product, or otherwise attempt to derive the source code for the Product. The Customer shall not frame or mirror any content forming part of the Product, other than on the Customer’s own intranets or otherwise for its own internal business purposes; or access the Product in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Product.  The Customer shall not sell, rent, redistribute, assign, sublicense or grant a security interest in or otherwise transfer any right in the Product.  The Customer may not modify the Product or create any derivative work of the Product or its accompanying documentation.  Derivative works include, but are not limited to, translations.  The Customer may not alter any files or libraries in any portion of the Product.  The Customer may not copy any part of the Product except to the extent that licensed use inherently demands the creation of a temporary copy stored in computer memory and not permanently affixed on a storage medium.  DXterity Solutions and/or its suppliers, as applicable, shall retain ownership in all proprietary and intellectual property rights (including, without limitation, copyrights, trade secrets, and patent rights) to the Product and Services and in all tradenames, trademarks, and service marks associated or displayed with the Product or Service. 
  1. The License is also subject to the terms and conditions of the licensing agreements of any open-source software utilized by DXterity Solutions in creating the Product, including, without limitation, APACHE, MIT, GPPL-GNU or other software code holding institutions. The software may include third party JDBC driver files. These drivers and corresponding end user licenses are set forth in the jdbc directory of the DbVisualizer distribution. By accepting this EULA Customer agrees to applicable license terms for third party software in the distribution. Such licensing agreements are accessible to Customer on-line.
  1. Minimum Operating Requirements. The Product must be used on equipment that meets or exceeds DXterity Solutions’ recommended specifications.  Such specifications are available by request from Customer Support Services.
  1. SERVICES
    1. Provision of the Product. DXterity Solutions shall make the Product, as described in the Subscription Order or any Subscription Order Addenda, available to the Customer and its Users pursuant to this Agreement during the enumerated subscription term. The Customer agrees that its purchase of subscriptions is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by DXterity Solutions with respect to future functionality or features.
  1. DXterity Solutions’ Responsibilities. DXterity Solutions shall: (i) in addition to its confidentiality obligations hereunder, not use, modify or disclose to anyone other than Users of the Customer Data; (ii) maintain the security and integrity of the Product and the Customer Data, if located in the Hosted Environment; (iii) provide basic support to the Customer’s Users, at no additional charge including consultation on edge case/best practice consolidation; and (iv) use commercially reasonable efforts to make the Product available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime (of which DXterity Solutions shall give at least eight (8) hours’ notice via the Service and which DXterity Solutions shall schedule to the extent reasonably practicable during the weekend hours from 11:00 pm Eastern Time Friday to 11:00 pm Eastern Time Sunday); or (b) any unavailability caused by circumstances beyond DXterity Solutions’ reasonable control, including without limitation: acts of God, acts of government; flood; fire; earthquakes; civil unrest; acts of terror; strikes or other labor problems (other than those involving DXterity Solutions employees); computer, telecommunications, Internet Services provider or hosting facility failures or delays involving hardware, software or power systems not within DXterity Solutions’ possession or reasonable control; and denial of service attacks.
  1. Service Level Agreement (SLA). DXterity Solutions commits to maintaining a minimum uptime of 99.5% for all hosted services as part of our SLA. This commitment excludes the planned downtime and circumstances beyond our reasonable control as described above. In the event of failure to meet this SLA, DXterity Solutions will provide the Customer with service credits as detailed in our SLA policies, which are available upon request.
  1. Standard Customer Support Services. DXterity Solutions, or its designee(s), shall provide telephone and email support between 8:00 a.m. and 7:00 p.m. (Eastern Time Zone) Monday-Friday, except on holidays recognized by DXterity Solutions or its designee(s), telephone (980) 949-0014, or Customer Support via email: support@dxteritysolutions.com.
  1. FEES, PAYMENT TERMS and expenses
    1. Invoicing & Payment. Unless otherwise stated in the Subscription Order, charges are due Net 15 days from the invoice date.
  1. The Customer agrees to pay DXterity Solutions the agreed upon annual subscription fee, configuration and implementation service fees and other fees set forth on the Subscription Software Order Form for the Product based on the Initial Term (and any Renewal Term), the number of Users, and the amount of Content stored on the Server(s).  The number of Users and User Fee may be increased on a monthly basis at the request of the Customer.  The User Fee includes the right to use the Product as provided for in Section 3, upgrades of the Product and hosting of the Product on the Hosted Environment.
  1. Overdue Payments. Any payment not received from the Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at DXterity Solutions’ discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

Suspension of Service.  If the Customer’s account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, DXterity Solutions reserves the right to suspend the Service provided to the Customer, without liability to the Customer, until such amounts are paid in full. 

  1. Unless otherwise stated, DXterity Solutions’ fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”).  The Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on DXterity Solutions’ net income or property.  If DXterity Solutions has the legal obligation to pay or collect Taxes for which the Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by the Customer unless the Customer provides DXterity Solutions with a valid tax exemption certificate authorized by the appropriate taxing authority.
  1. TERM AND TERMINATION
    1. Term of Agreement. This Agreement commences on the Effective Date and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
  1. Term of User Subscriptions. User subscriptions commence on the start date specified in the relevant Subscription Order and continue for the specified subscription term.  User subscription shall not automatically renew.
  1. Termination for Cause. A Party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other Party if such breach remains uncured at the expiration of such period; or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.  Upon any termination by the Customer for cause, DXterity Solutions shall refund the Customer any prepaid fees covering the remainder of the subscription term after the termination date. 
  1. Outstanding Fees. Termination shall not relieve the Customer of the obligation to pay any fees accrued or payable to DXterity Solutions prior to the effective date of termination.
  1. Return of Customer Data. Upon request by the Customer made within thirty (30) days after the effective date of termination, provided that DXterity Solutions has access to Customer Data, DXterity Solutions will make available to the Customer for download a file of Customer Data in a text readable or technology-appropriate file format.  After such thirty 30-day period, DXterity Solutions shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control. 
  1. Notwithstanding anything herein to the contrary, the termination of this Agreement shall not limit DXterity Solutions from pursuing any other remedies available to it, consistent with this Agreement.
  1. CUSTOMER RESPONSIBILITIES
    1. User Compliance. The Customer is responsible for all activities that occur in User accounts and for Users’ compliance with this Agreement. The Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify DXterity Solutions promptly of any such unauthorized access or use; and (iii) comply with all applicable local, state, federal and foreign laws in using the Service.
  1. Data Input Responsibilities. You are responsible for the legality, reliability, integrity, accuracy, and quality of the data you input into the services. This includes ensuring that the data complies with relevant laws and regulations, is not harmful to others, and is entered accurately and responsibly.
  1. Account Security. You must maintain the security of your user account and notify us immediately of any unauthorized use of your password or account. This responsibility includes safeguarding any passwords, authentication credentials, or security procedures issued to or created by you. You agree to promptly notify DXterity Solutions of any breach in secrecy of your login credentials.
  1. Use Guidelines. The Customer shall use the Product solely for its internal business purposes as contemplated by this Agreement and shall not (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share of otherwise commercially exploit or make the Service available to any third party, other than to Users or as otherwise contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous or otherwise unlawful or tortuous material, including material that is harmful to children or violates third party privacy rights; (iv) send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Product or the data contained therein; or (vi) attempt to gain unauthorized access to the Product or its related systems or networks. 
  1. CONFIDENTIALITY
    1. Definition of Confidential Information. For purposes of this Section, both DXterity Solutions and the Customer are a “Party” as defined below. As used herein, “Confidential Information” means all confidential and proprietary information of a Party (“Discloser”) disclosed to the other Party (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, but not limited to: the terms and conditions of this Agreement (including pricing and other terms reflected in all Subscription Orders hereunder); the Product; Customer Data; business and marketing plans; technology and technical information; product designs; and business processes.  Confidential Information (except for Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser; (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser;  (iii) was independently developed by the Recipient without breach of any obligation owed to the disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Discloser.
  1. The Recipient (including its directors, officers, employees, agents, affiliates, parent, subsidiaries, consultants, advisors and other representatives, including legal counsel, accountants and financial advisors) shall not disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement, except with the Discloser’s express, prior written permission.  
  1. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
  1. Compelled Disclosure. If the Recipient is compelled by law to disclose Confidential Information of the Discloser, it shall provide the Discloser with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Discloser’s cost, if the Discloser wishes to contest the disclosure. 
  1. If the Recipient discloses or uses (or threatens to disclose or use) any Confidential Information of the Discloser in breach of confidentiality protections hereunder, the Discloser shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts without having to post bond, it being specifically acknowledged by the parties that any other available remedies are inadequate.
  1. Separate Mutual Non-Disclosure Agreement. In the event that the Parties to this Agreement have entered into a separate and more detailed Mutual Nondisclosure Agreement, then the terms and conditions of that agreement shall supersede those contained in this Agreement.
  1. proprietary rights
    1. Reservation of Rights. Subject to the limited rights expressly granted hereunder as well as the Restrictions enumerated Under Section 3 of this Agreement, DXterity Solutions reserves all rights, title and interest in and to the Product, including all related intellectual property rights.  No rights are granted to the Customer hereunder other than as expressly set forth herein.
  1. Customer Data. As between DXterity Solutions and the Customer, the Customer exclusively owns all rights, title and interest in and to all Customer Data, which consists of “extended” or “customized” code added by the Customer, as well as all generated code, except pre-existing intellectual property.  Pre-existing intellectual property, generally defined as routines, methodologies, processes, patterns, libraries (in object form or in source form), tools or technologies, shall remain the intellectual property of DXterity Solutions or the third-party open-source software provider.  Customer Data is deemed Confidential Information under this Agreement.  DXterity Solutions shall not access the Customer’s user accounts, including Customer Data, except to respond to service or technical problems or at the Customer’s request.
  1. DXterity Solutions shall have a royalty-free worldwide, transferable, sub-licenseable, irrevocable, perpetual license to use or incorporate into the Product any suggestions, enhancement requests, recommendation or other feedback provided by the Customer or its Users relating to the operation of the Product.
  1. WARRANTIES & Disclaimers
    1. Each Party represents and warrants that it has the legal power to enter into this Agreement. 
  1. Product Warranty. Upon the proper installation of the Product with the Customer, DXterity Solutions represents and warrants that, throughout the subscription period(s), (i) it will provide the Product in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the Product shall perform materially in accordance with the User Guide; (iii) the functionality of the Product will not be materially decreased during a subscription term; (iv) the Product will not contain or transmit to the Customer any Malicious Code (except for any Malicious Code contained in User-uploaded attachments or otherwise originating from Users); (v) it owns or otherwise has sufficient rights in the Product to grant to the Customer the rights to use the Product granted herein; and (vi) the Product does not infringe any intellectual property rights of any third party.
  1. EXCEPT AS EXPRESSLY PROVIDED HEREIN, DXTERITY SOLUTIONS MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  DXterity Solutions makes no warranty that the product will meet the Customer’s requirements or operate under the Customer’s specific conditions of use, or that operation of the Product will be secure, error free, or free from interruption.  THE CUSTOMER MUST DETERMINE WHETHER THE PRODUCT SUFFICIENTLY MEETS ITS REQUIREMENTS FOR SECURITY AND UNINTERRUPTABILITY.  THE CUSTOMER BEARS SOLE RESPONSIBILITY AND ALL LAIBILITY FOR ANY LOSS INCURRED DUE TO FAILURE OF THE PRODUCT TO MEET THE CUSTOMER’S REQUREMENTS.  DXTERITY SOLUTIONS WILL NOT, UNDER ANY CIRCUMSTANCESS BE RESPONSIBLE FOR OR LIABLE FOR THE LOSS OF DATA ON ANY COMPUTER OR INFORMATION STORAGE DEVICE.

UNDER NO CIRCUMSTANCES SHALL DXTERITY SOLUTIONS, ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO THE CUSTOMER OR ANY OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS OR LOSS OF BUSINESS) RESULTING FROM THIS AGREEMENT, OR FROM THE FURNISHING, PERFORMANCE, INSTALLATION, OR USE OF THE PRODUCT, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY OR THE NEGLIGENCE OF DXTERITY SOLUTIONS OR ANY OTHER PARTY, EVEN IF DXTERITY SOLUTIONS IS ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES.  TO THE EXTENT THAT THE APPLICABLE JURISDICTION LIMITS DXTERITY SOLUTIONS’ ABILITY TO DISCLAIM ANY IMPLIED WARRANTIES, THIS DISCLAIMER SHALL BE EFFECTIVE TO THE MAXIMUM EXTENT PERMITTED.

  1. Indemnification by DXterity Solutions of the Customer, its directors, officers, employees and agents (collectively, “Customer Indemnified Parties”).

Intellectual Property Indemnification.  DXterity Solutions shall, to the fullest extent permitted by law, indemnify, hold harmless, and at the option of the Customer, decide in its sole discretion, defend or pay for the defense of the Customer Indemnified Parties from and against any and all liability, claims, suits, causes of action, liens, demands, losses, damages (including fines, penalties, incidental and consequential damages), settlements, judgments, costs and expenses (including reasonable attorneys’ fees and any other costs of defense) of every kind, nature, or description arising out of or in connection with, caused by, resulting from, or occurring during the course of the performance of this Agreement, whether directly or indirectly, where such liability is  i) founded upon or grows out of, directly or indirectly, the acts, errors, omissions, undertakings, representations or warranties of DXterity Solutions, its officers, employees or agents, or any other person or party for which DXterity Solutions is legally liable; and ii) is attributable in any manner and to any extent to any claimed infringement of any copyright, patent, intellectual property right, or other intangible property right.  DXterity Solutions shall not be required to defend, indemnify, or hold harmless the Customer Indemnified Parties when the claimed infringement occurs in or due to the content of materials created by the Customer.

  1. Indemnification by the Customer of DXterity Solutions, its directors, officers, employees, and agents (collectively, “DXterity Solutions Indemnified Parties”).

Intellectual Property Indemnification.  The Customer shall to the fullest extent permitted by law, indemnify, hold harmless, and at the option of the Customer, decide in its sole discretion, defend or pay for the defense of the DXterity Solutions Indemnified Parties from and against any and all liability, claims, suits, causes of action, liens, demands, losses, damages (including fines, penalties, incidental and consequential damages), settlements, judgments, costs and expenses (including reasonable attorneys’ fees and any other costs of defense) of every kind, nature, or description arising out of or in connection with, caused by, resulting from, or occurring during the course of the performance of this Agreement, whether directly or indirectly, where such liability is  i) founded upon or grows out of, directly or indirectly, the acts, errors, omissions, undertakings, representations or warranties of the Customer, its officers, employees or agents, or any other person or party for which the Customer is legally liable; and ii) is attributable in any manner and to any extent to any claimed infringement of any copyright, patent, intellectual property right, or other intangible property right by a third party.  The Customer shall not be required to defend, indemnify, or hold harmless the DXterity Solutions Indemnified Parties when the claimed infringement occurs in or due to the content of any materials provided to the Customer by DXterity Solutions.

  1. Limitation of liability
    1. Limitation of Liability. The Customer’s remedy for a breach of this Agreement or of any warranty included in this Agreement is the correction or replacement of the Product.  Selection of whether to correct or replace shall be solely at the discretion of DXterity Solutions.  DXterity Solutions reserves the right to substitute a functionally equivalent copy of the Product as a replacement.  If DXterity Solutions is unable to provide a replacement or substitute Product or corrections to the Product, the Customer’s sole alternate remedy shall be a refund of the purchase price for the Product.  Any claim must be made within the applicable warranty period.  All warranties cover only defects arising under normal use and do not include malfunctions or failure resulting from misuse, abuse, neglect, alteration, problems with electrical power, acts of nature, unusual temperatures or humidity, improper installation, use of edge case data models and neglect of industry best practices or damage determined by DXterity Solutions to have been caused by the Customer.  All limited warranties on the Product are granted only to the Customer and are non-transferable. 

IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.

  1. GENERAL TERMS
    1. This Agreement may be executed in any number of counterparts or duplicate originals.
  1. Entire Agreement. This Agreement is the complete agreement of the parties and supersedes all prior agreements concerning the subject matter hereof.
  1. DXterity Solutions and the Customer each recognize that litigation is an expensive, resource-consuming process for resolving business disputes.  Therefore, DXterity Solutions and the Customer agree that if any controversy or dispute arises out of or relates to the Agreement or any breach of the Agreement, they will attempt in good faith to settle the dispute expeditiously through mediation within sixty (60) days.  DXterity Solutions and the Customer shall attempt to mutually agree as to the provider of neutral services, and the parties shall share the costs of such mediation equally.  If the parties cannot mutually agree to a neutral mediator or the deadline described in this Section is not met, unless an extended time frame is consented to by both parties in writing, either Party may commence litigation or any other appropriate legal proceeding. 
  1. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without giving any effect to the choice of law principles thereunder.  All disputes under this Agreement that are not resolved pursuant to the Mediation provisions contained in Section 12(C) herein, shall be resolved by litigation initiated and concluded in the appropriate North Carolina Federal District Court, or the Iredell County District or Superior Court, and the Parties consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any otherwise available jurisdictional or venue defenses.
  1. Independent Contractors. The parties are independent contractors.  This Agreement shall not constitute either Party as the employee, legal representative or agent of the other.  Neither Party may bind the other in any way.
  1. Force Majeure. Neither Party shall be liable or deemed in default for any delay or failure in performance of an order or any part of this Agreement to the extent that such delay or failure is due to causes beyond its reasonable control, including but not limited to: accident, fire, industry-wide strike, embargo, act of the government, war, terrorist acts or national emergency requirement, act of God, act of the public enemy or any other cause beyond the reasonable control of the Customer or DXterity Solutions.  If any of the forgoing condition occurs, the Party delayed or unable to perform shall use commercially reasonable efforts to give notice to the other Party.
  1. Publicity and Advertising. Notwithstanding anything contained herein or in any other agreement to the contrary, DXterity Solutions shall have the right to reference the Customer and the nature of the Services provided hereunder in DXterity Solutions business development and marketing efforts, including without limitation its web site.  The Customer agrees to allow DXterity Solutions to issue a press release upon execution of this Agreement, and to use the Customer’s name and/or logo in any listing of customers of DXterity Solutions.
  1. Waiver and Estoppels. Either Party’s failure at any time to enforce any of the provisions of this Agreement or any right with respect thereto, or to exercise any option herein provided, will in no way be construed to be a waiver of such provisions, rights, or options or in any way to affect the validity or enforcement of this Agreement.  All waivers must be in writing to be effective.  The exercise or failure to exercise by DXterity Solutions of any right or options under the term or covenants herein shall not preclude or prejudice the exercising thereafter of the same or any other right under this Agreement or under applicable law.
  1. If any provision or portion of a provision of this Agreement is invalid or unenforceable under applicable statute or rule of law (including, without limitation, if any remedy failed its essential purpose), it is only to that extent to be deemed omitted, and such unenforceability shall not affect the validity or enforceability of any other provision of this Agreement. This Agreement shall then be construed as if such unenforceable provision(s) had never been contained herein.
  1. The Customer acknowledges that the Product and Services, or portion thereof, may be subject to the export control laws of the United States.  The Customer will not export, re-export, divert, transfer or disclose any portion of the Product or Services or any related technical information or materials, directly or indirectly, in violation of any export law or regulation.  In addition, the Customer shall defend, indemnify, and hold harmless DXterity Solutions from and against any and all liabilities, claims, suits, causes of action, liens, demands, losses, damages (including, fines, penalties, assessments, incidental and consequential damages), settlements, judgments, costs, and expenses (including attorneys’ fees and other costs of defense) arising out of any claim the Product was exported or otherwise shipped or transported by the Customer in violation of applicable laws, rules, and regulations.
  1. Laws, Rules and Regulations. Each Party shall comply, at its own expense, with all applicable federal, state and local laws, ordinances, regulations and codes. Each Party agrees to indemnify and hold the other Party harmless for any loss or damage that may be sustained by reason of any failure to comply with this Section 11(K).
  1. No Assignment. The Customer may not assign or sub-license this Agreement or any of its rights, by operation of law or otherwise, or delegate any of its duties hereunder, in whole or in part, without DXterity Solutions’ prior written consent.
  1. Notice: All notices, requests, demands, and other communications required or permitted under this Agreement shall be by email. All legal notices to Customer will be sent to a specific legal notice email address. It is your responsibility to maintain an active and accessible email address for receiving notices. You must notify us of any changes to your notice email address through your account management dashboard or by emailing legal@dxteritysolutions.com. Any changes to your notice email address will not be effective until confirmed by legal@dxteritysolutions.com. Failure to maintain an accurate notice email address and to obtain confirmation of changes from legal@dxteritysolutions.com may result in notifications not being delivered and could affect your rights under this agreement. All notices shall be deemed effectively given on the date received when sent by email.
  1. Neither termination nor expiration shall relieve either Party from the duty to discharge in full all obligations accrued up to the effective date of termination nor expiration.  Sections 3(B), 5, 6, 7, 8, 9, 10, 11 and 12 shall survive the expiration or termination thereof and continue in full force and effect after this Agreement expires or is terminated. 
  1. Amendments and Updates to Terms of Service. DXterity Solutions may update this agreement from time to time to reflect changes to our practices, service offerings, or legal or regulatory requirements. Our website will always post the most current version of the Term of Service Agreement. Changes will be effective from the date they are posted, and continuing to use the Product after changes have been made will constitute your acceptance of the changes. If you do not agree to the new terms, you should stop using the Product immediately.
  1. Clarify Service Scope and Usage:
    • The ToS could further clarify the specific services covered, especially if your offerings include more than just software products, such as cloud services, consulting, or support. This would help users understand exactly what the ToS covers.
    • Example Addition: “This Agreement governs your use of all services provided by DXterity Solutions, including but not limited to our software products, cloud-based solutions, consulting services, and support services.”
  1. Data Rights and Responsibilities:
    • While the Agreement mentions “Content” and data ownership, expanding this section to explicitly address user responsibilities regarding data input, legal compliance, and data accuracy could be beneficial.
    • Example Addition: “You are responsible for the legality, reliability, integrity, accuracy, and quality of the data you input into the services.”
  1. Access and Security:
    • The current ToS could include a section on user account security, detailing the responsibilities of users to maintain the confidentiality of their account details and to notify DXterity Solutions of any unauthorized use.
    • Example Addition: “You must maintain the security of your user account and notify us immediately of any unauthorized use of your password or account.”
  1. Service Availability and SLAs:
    • While it mentions efforts to make the product available, specifying any service level agreements (SLAs) or outlining the typical availability expectations (uptime) could align customer expectations with service performance.
    • Example Addition: “DXterity Solutions commits to maintaining a minimum uptime of 99.5% for all hosted services as part of our SLA.”
  1. Amendments and Updates to ToS:
    • Ensure there is a clause that explains how changes to the ToS will be communicated to users, and what happens if users continue to use the service after changes are made.
    • Example Addition: “We may update this ToS from time to time. The most current version will always be posted on our website. Changes will be effective from the date they are posted, and continuing to use the service after changes have been made will constitute your acceptance of the changes.”
  1. Explicit Performance Warranty:
    • Consider adding a more explicit performance warranty that outlines what users can expect in terms of service functionality and performance.
    • Example Addition: “DXterity Solutions warrants that the services will perform in accordance with the documentation under normal use.”
  1. More Detailed Termination Rights:
    • Provide more detailed conditions under which either party can terminate the agreement, potentially including performance failures, repeated downtime, or breaches of security.
    • Example Addition: “Either party may terminate this agreement if the other party fails to cure a material breach within 30 days of written notice.”
  1. Dispute Resolution:
    • If not already covered, include a clear dispute resolution process that outlines steps preceding formal legal action, such as mandatory mediation or arbitration.
    • Example Addition: “Before initiating any formal legal proceedings, the parties agree to attempt to resolve any dispute arising out of or related to this Agreement through binding arbitration in accordance with the Arbitration Association’s rules.”