XCELDATA END USER LICENSE AGREEMENT
1. Introduction
Thank you for using XcelData, a point of sale (“POS”) financial report management system for pawn shops. Please read this End User License Agreement (“Agreement”) carefully, as you are agreeing to be bound by it by using our Service and/or installing our Software.
2. Definitions
Throughout this Agreement, we may use certain words or phrases, and it is important that you understand the meaning of them. The list is not all-encompassing and no definition should be considered binding to the point that it renders this Agreement nonsensical:
“Agreement” means this End User License Agreement;
“XcelData” refers to our company, known as “XcelData Inc.”; our Site; our Service; or a combination of all or some of the preceding definitions, depending on the context of the word;
“Service” refers to the services that we provide through our Site and Software,including our POS system and our Site and Software itself;
“Site” refers to our website, www.xceldata.com, as well as any software applications that we make available via our Site;
“Software” refers to our software applications as made available for purchase on our Site via CD, DVD, direct download, or any other digital or physical media format.
“User” refers to licensed users of our Service and Software;
“You” refers to you, the person who is entering into this Agreement with XcelData.
3. What XcelData Offers
XcelData is a POS financial report management system for pawn shops. Users can access a number of tools designed to help them record, catalogue, and search through individual transactions, generate daily transaction summaries, browse geographic pawn shop traffic reports, generate automatic email and SMS alerts for transactions, and use a number of services designed to optimize their business.
4. Eligibility
In order to use our Service, you must meet a number of conditions, including but not limited to:
· You must not be in violation of any embargoes, export controls, or other laws of the United States or other countries having jurisdiction over this Agreement, XcelData, and yourself. For example, if the Office of Foreign Assets Control prohibits conducting financial transactions with nationals, residents, or banks of your country, you must not use our Service.
· You must be the minimum age required to enter into a contract in the area in which you reside, and, in any event, must not be less than 18 years of age.
· You must not sign up on behalf of a natural person other than yourself.
· You must, if signing up on behalf of another person other than a natural person, be authorized by that other person to bind them to this Agreement (such as by being authorized by a corporation), and you agree that you are hereby binding both you and that person to this Agreement and that both of you shall be jointly and severally liable to XcelData for either party’s actions.
· You must provide us with personal information, payment information, and other information that we deem necessary to provide you with our Service.
5. Disclaimers
XcelData accepts no liability for any of the content made available through its Service or the actions of any of its Users, and you hereby agree to release XcelData from all liability arising from or relating to your use of our Service.
5.1 – Customization
OUR SERVICE ALLOWS USERS TO MODIFY PRESET CONFIGURATIONS OF THE VARIOUS LOAN CREATION AND LOAN MANAGEMENT ASPECTS OF OUR SOFTWARE. XCELDATA ACEPTS NO LIABILITY FOR A USER’S MODIFICATION OF OUR PRESET CONFIGURATIONS WHICH MAY VIOLATE THE LAWS OF THE UNITED STATES OR ANY OF ITS STATES. FOR THE AVOIDANCE OF DOUBT, YOU WILL INDEMNIFY AND HOLD XCELDATA HARMLESS FOR ANY AND ALL CLAIMS AND/OR DAMAGES ARISING FROM YOUR MODIFICATIONS TO OUR PRESET ALGORITHMS WHICH MAY, WITHOUT LIMITATION, VIOLATE ANY UNITED STATES AND/OR STATE LAW REGARDING LOAN INTEREST RATES, LAON COLLECTION PRACTICES, LOAN ACCOUNTING MECHANISMS, ETC.
5.2 – Version Control
In an effort to provide our customers with the highest quality service, XcelData will periodically update its Site and Service to incorporate new features and options as well as to ensure compliance with state laws as described in Section 5.3 of this Agreement. Currently licensed Users will be eligible to receive a free upgrade to the new version of the Software whenever such new version is released.
XcelData strongly recommends that Users update their Software to the most current version. While Users can continue to use older versions of the Service, you acknowledge that you do so at your own risk. XcelData makes no warranties as to the compliance or serviceability of older versions of our Service including, without limitation, its compliance with any laws of the United States or any state and/or local ordinance.
5.3 – Legal Compliance
Our Service has been preconfigured to be in compliance with the laws of the state of California. However, because the law changes rapidly, XcelData cannot guarantee that all of the features of our Site or Service are completely current. By using our Service you acknowledge that XcelData makes no representations or warranties about the currency or accuracy of our Service. You accept full responsibility for your use of our Service and acknowledge that any actions you take in connection with our Service should be performed with the advice of qualified legal counsel.
The law differs from jurisdiction to jurisdiction and may be subject to interpretation by different courts. Accordingly, XcelData does not warrant the legal accuracy of our preconfigured Service and accepts no liability for any use of our Service that may violate the laws of the United States or any of its states. By using our Service you acknowledge that it is your responsibility to modify and configure our Service, as needed, with advice of your own counsel, in order to be in compliance with the laws of your county, your state (including, without limitation, California) and the United States.
5.4 – Support
XcelData provides its Users with premium customer support services. Our support staff is available to assist you with matters relating to general purchase and use of our Service, such as purchase and shipping information, returns, installation, troubleshooting, and other technical issues. Please note that our support staff is neither qualified nor authorized to provide any legal advice or interpretation regarding our Service, the laws of your state, or any other legal matter. Any information you obtain from our support staff, regardless of content or subject matter, should not be interpreted as legal advice, regardless of its presentation or appearance.
6. Rules of Use
Certain rules apply to how Users use our Service. You must not:
· Violate the laws of the United States, its states, or any foreign political entity having jurisdiction over this Agreement, whether or not the foreign political entity is a country or a subdivision (such as a state or province) or municipality (such as a city, town, county, or region) of a foreign country.
· Use our Service to facilitate the employment of any person not authorized to work at a specific job or in general. For example, our Service may not be used to facilitate the employment of a person in a licensed profession where that person does not themselves hold the required licenses. Likewise, our Service may not be used to facilitate the employment of any person who is not authorized by citizenship, residency, diplomatic immunity, treaty, or visa status to work in the jurisdiction in which they are or intend to be employed.
· Infringe on anyone’s intellectual property rights, defame anyone, impersonate anyone, or otherwise violate the rights of a third party.
· Hack, crack, phish, SQL inject, or otherwise compromise the security or integrity of the XcelData Site, Service, or its Users’ computers.
· Do anything else which could bring XcelData into disrepute or which could violate the rights of any person.
7. License Restrictions
You agree that by using our Service, you are receiving a license to use one copy of our Software in compliance with this Agreement, applicable laws, and any additional terms located on our Site which are hereby incorporated into this Agreement by reference. You must not attempt to reverse engineer, redistribute or resell or otherwise copy or manipulate our Service.
XcelData may revoke its license to you at any time for any reason without notice or explanation, and we shall not, in any event, be liable to you for any losses suffered as a result of any unanticipated cancellation of our Service. XcelData will generally attempt to notify you prior to cancelling your access to our Service unless you have breached this Agreement or any applicable law, though we are not obligated to do so. Pricing details….
8. Server Downtime
Our Service may become unavailable from time to time due for security reasons, legal reasons, technical updates, or other reasons. You agree that we are not obligated to inform you of such downtime—even if we are aware that it may occur—or to provide a reason for it, and that you release us from all liability relating to the unavailability of our Service.
9. Our Copyright
XcelData relies on the uniqueness of its Site, Software and content to distinguish itself from third party competitors. You agree not to copy, distribute, display, disseminate, or otherwise reproduce any portion of the the Site or Software, including content licensed to XcelData by third parties, without receiving our prior written permission.
10. Trademarks
“XcelData,” “XPawn,” and “JUS123”are trademarks used by us, XcelData Inc., to uniquely identify our Site, Service, and business. You agree not to use these phrases anywhere without our prior written consent. Additionally, you agree not to use our trade dress, or copy the look and feel of our website or its design, without our prior written consent. You agree that this paragraph goes beyond the governing intellectual property law, and includes prohibitions on any competition that violates the provisions of this paragraph, including starting your own POS system or other service, whether or not it competes directly or indirectly with XcelData.
11. Revocation of Consent
We may revoke our consent for your use of our intellectual property, or any other permission granted to you under this Agreement, at any time. You agree that if we so request, you must take immediate action to remove any usage of our intellectual property that you may have engaged in, even if it would cause a loss to you.
12. Representations & Warranties
WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE MERCHANTABILITY OF OUR SERVICE OR FITNESS FOR ANY PARTICULAR PURPOSE. YOU AGREE THAT YOU ARE RELEASING US FROM ANY LIABILITY THAT WE MAY OTHERWISE HAVE TO YOU IN RELATION TO OR ARISING FROM THIS AGREEMENT OR OUR SERVICES, FOR REASONS INCLUDING, BUT NOT LIMITED TO, FAILURE OF OUR SERVICE, NEGLIGENCE, OR ANY OTHER TORT. TO THE EXTENT THAT APPLICABLE LAW RESTRICTS THIS RELEASE OF LIABILITY, YOU AGREE THAT WE ARE ONLY LIABLE TO YOU FOR THE MINIMUM AMOUNT OF DAMAGES THAT THE LAW RESTRICTS OUR LIABILITY TO, IF SUCH A MINIMUM EXISTS.
YOU AGREE THAT WE ARE NOT RESPONSIBLE IN ANY WAY FOR DAMAGES CAUSED BY THIRD PARTIES WHO MAY USE OUR SERVICES, INCLUDING BUT NOT LIMITED TO PEOPLE WHO COMMIT INTELLECTUAL PROPERTY INFRINGEMENT, DEFAMATION, TORTIOUS INTERFERENCE WITH ECONOMIC RELATIONS, OR ANY OTHER ACTIONABLE CONDUCT TOWARDS YOU.
WE ARE NOT RESPONSIBLE FOR ANY ACTIONS BY AN ADMINISTRATOR, MANAGER, EMPLOYEE, OR OTHER USER WHICH MAY CAUSE HARM TO YOU, EVEN IF WE BECOME AWARE IN ADVANCE THAT SUCH ACTIONS MAY OR WILL OCCUR AND DO NOT NOTIFY YOU.
WE ARE NOT LIABLE FOR ANY FAILURE OF THE GOODS OR SERVICES OF OUR COMPANY OR A THIRD PARTY, INCLUDING ANY FAILURES OR DISRUPTIONS, UNTIMELY DELIVERY, SCHEDULED OR UNSCHEDULED, INTENTIONAL OR UNINTENTIONAL, ON OUR WEBSITE WHICH PREVENT ACCESS TO OUR WEBSITE TEMPORARILY OR PERMANENTLY.
THE PROVISION OF OUR SERVICE TO YOU IS CONTINGENT ON YOUR AGREEMENT WITH THIS AND ALL OTHER SECTIONS OF THIS AGREEMENT. NOTHING IN THE PROVISIONS OF THIS “REPRESENTATIONS & WARRANTIES” SECTION SHALL BE CONSTRUED TO LIMIT THE GENERALITY OF THE FIRST PARAGRAPH OF THIS SECTION.
For Jurisdictions that do not allow us to limit our liability: Notwithstanding any provision of this Agreement, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by its negligence or that of any of its officers, employees or agents; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future.
IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE.
13. Indemnity
You agree to indemnify and hold us harmless for any claims by you or any third party which may arise from or relate to this Agreement or the provision of our service to you, including any damages caused by your use of our Service. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim, and you shall be liable for the damages as though we had proceeded with a trial.
14. Choice of Law
This Agreement shall be governed by the laws in force in the State of California. The offer and acceptance of this contract are deemed to have occurred in the State of California.
15. Forum of Dispute
This Agreement and any disputes arising under or related to this Agreement (whether for breach of contract, tortuous conduct, or otherwise) and any claim relating to the Site or Service shall be governed by the internal substantive laws of the State of California. By our Service, and agreeing to the Agreement, you agree to be subject to personal jurisdiction in the Federal and State courts of the State of California. In addition, you hereby accept and submit to the personal jurisdiction of these California courts with respect to any legal actions, suits or proceedings arising out of this Agreement. You also waive to the fullest extent permitted by law any right to a trial by jury in any action, suit or proceeding brought to enforce, defend or interpret any right or remedies under, or arising in connection with or relating to, this Agreement.
16. Force Majeure
You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, unavailability of payment processors, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
17. Severability
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.
If two or more provisions of this Agreement are deemed to conflict with each other’s operation, XcelData shall have the sole right to elect which provision remains in force.
18. Non-Waiver
XcelData reserves all rights afforded to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
19. Termination & Cancellation
We may terminate your access to our Site and Service at our discretion without explanation, though we will strive to provide a timely explanation in most cases. Our liability for refunding you, if you have paid anything to us, will be limited to the amount you paid for goods or services which have not yet been and will not be delivered, except in cases where the termination or cancellation was due to your breach of this Agreement, in which case you agree that we are not required to provide any refund or other compensation whatsoever.
Under no circumstances, including termination or cancellation of our Service to you, will we be liable for any losses related to actions of other Users.
20. Assignment of Rights
You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion.
21. Corporate Information
XcelData Inc. is a corporation formed lawfully in the State of California.
22. California Users and Residents
Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about XcelData must be addressed to our agent for notice and sent via certified mail to that agent. For our agent’s most current contact information, please send a request to support@xceldata.com.
Lastly, California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
PRIVACY POLICY
23. Information Collected
Identifying Information
We collect certain personal information from you when you sign up to our Service that can be used to identify you, such as your name, e-mail address, company information, other information that we deem relevant for the purpose of providing you with our Service, and any information that you provide to us voluntarily. The information we collect from you, to the extent that it is private, is disclosed only in accordance with our Terms of Service and/or this Privacy Policy.
Non-Identifying Information
Whenever you visit our Site, we may collect non-identifying information from you, such as your IP address, referring URL, browser, operating system, cookie information, and Internet Service Provider. Without a subpoena, voluntary compliance on the part of your Internet Service Provider, or additional records from a third party, this information alone cannot usually be used to identify you.
24. Use of Your Information
We may use your information to:
· Enhance or improve User experience, our Site, or our Service.
· Send e-mails about our Site or respond to inquiries.
· Send e-mails and updates about XcelData, including newsletters and notifications of amendments to legal documents such as this Agreement.
· Perform any other function that we believe in good faith is necessary to protect the security or proper functioning of our Site or Service.
25. Accessing, Editing, and Removing Your Information
Users may in some cases be able to review and edit the personal information they have provided to us by logging into your account on the Site and editing their account. Although most changes may occur immediately, information may still be stored in a web browser’s cache. We take no responsibility for information stored in your cache, or in other devices that may store information, and disclaim all liability of such. In addition, we may, from time to time, retain residual information about you in our backup and/or database.
26. Cookies
Our Site uses cookies to remember your preferences. For this reason, it is necessary that you enable cookies in your browser, whenever you visit our Site. You hereby acknowledge that we have informed you of our use of cookies and that you consent to our use of cookies in relation to your computer system.
27. Third Party Websites
XcelData may post links to third party websites on our Site. These third party websites are not screened for privacy or security issues by XcelData, and you release us from any liability for the conduct of these third parties.
Please be aware that this Agreement, and any other policies in place, in addition to any amendments, does not create rights enforceable by third parties or require disclosure of any personal information relating to members of the Service or Site. XcelData bears no responsibility for the information collected or used by any advertiser or third party website. Please review the privacy policy and terms of service for each site you visit through third party links.
28. Third Party Access to Your Information
Although you are entering into an agreement with XcelData to disclose your information to us, we do use third party individuals and organizations to assist us, including contractors, web hosts, and others.
Throughout the course of our provision of our Service to you, we may delegate our authority to collect, access, use, and disseminate your information. For example, our web host stores the information that you provide us, and we may hire outside contractors to perform maintenance or assist us in securing our website.
It is therefore necessary that you grant the third parties we may use in the course of our business the same rights that you afford us under this Agreement. For this reason, you hereby agree that every authorization which you grant to us in this Agreement, you also grant to any third party that we may hire, contract, or otherwise retain the services of for the purpose of operating, maintaining, repairing, or otherwise improving or preserving our website or its underlying files or systems. You agree not to hold us liable for the actions of any of these third parties, even if we would normally be held vicariously liable for their actions, and that you must take legal action against them directly should they commit any tort or other actionable wrong against you.
29. Release of Your Information for Legal Purposes
At times it may become necessary or desirable, for legal purposes, to release your information in response to a request from a government agency or a private litigant. You agree that we may disclose your information to a third party where we believe, in good faith, that it is desirable to do so for the purposes of a civil action, criminal investigation, or other legal matter. In the event that we receive a subpoena affecting your privacy, we may elect to notify you to give you an opportunity to file a motion to quash the subpoena, or we may attempt to quash it ourselves, but we are not obligated to do either. We may also proactively report you, and release your information to, third parties where we believe that it is prudent to do so for legal reasons, such as our belief that you have engaged in fraudulent activities. You release us from any damages that may arise from or relate to the release of your information to a request from law enforcement agencies or private litigants.
30. Commercial and Non-Commercial Communications
By providing information to the Site that forms the basis of communication with you, such as contact information, you waive all rights to file complaints concerning unsolicited email from XcelData since, by providing such information, you agree to receive communication from us or anyone else covered under this Agreement. However, you may unsubscribe from certain communications by notifying XcelData that you no longer wish to receive solicitations or information and we will endeavor to remove you from the database.
31. Security Measures
We take certain measures to enhance the security of our Site and Service, including using SSL certificates. However, we make no representations as to the security or privacy of your information. It is in our interest to keep our website secure, but we recommend that you use anti-virus software, firewalls, and other precautions to protect yourself from security threats.
32. Your California Online Privacy Rights
XcelData permits residents of California to use its services. Therefore, it is the intent of XcelData to comply with the California Business and Professions Code §§ 22575-22579. If you are a California resident you may request certain information regarding our disclosure of personal information to any third parties for their direct marketing purposes. Various provisions throughout this Agreement address requirements of the Californian privacy statutes. In summary, you must presume that we collect electronic information from all visitors. You may contact us at support@XcelData.com with any questions.
33. International Transfer
Your information may be transferred to—and maintained on—computers located outside of your state, province, country or other governmental jurisdiction where the privacy laws may not be as protective as those in your jurisdiction. If you are located outside the United States and choose to provide information to us, XcelData transfers Personal Information to the United States and processes it there. Your consent to this Agreement followed by your submission of such information represents your agreement to that transfer.
34. Amendments
We may amend this Agreement from time to time. When we amend this Agreement, we will post the changes here and e-mail you to inform you that there has been a change. Your continued use of our Service shall constitute your acceptance of such changes.
Last Modified: July 14, 2015