Terms and Conditions of Use for the xGEL Data Systems, LLC Service

This is an agreement between you and xGEL Data Systems, LLC, Inc. for use of, and access to, the communications and data management infrastructure required for running of the xGEL Data Systems, LLC software and services on your computer(s), or made available to you by xGEL Data Systems, LLC for your use when you log into your user account . This agreement is in addition to any website terms of use, and is also in addition to any license agreement for any xGEL Data Systems, LLC software installed on your computers.

XGEL DATA SYSTEMS, LLC IS UNWILLING TO OR CANNOT PROVIDE ITS SOFTWARE OR ITS SERVICE FOR THE FEES THAT IT CHARGES EXCEPT WITH THE PROVISIONS IN THIS AGREEMENT WHICH ACT TO REDUCE CLIENT’S COST FOR ACCESS AND USE OF XGEL'S PROPERTY, AND WHICH ACT TO CONFINE XGEL DATA SYSTEM'S LIABILITY AND COSTS.

BY ACTIVATING OR USING THE XGEL DATA SYSTEMS, LLC SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. THEY AFFECT YOUR LEGAL RIGHTS BY, AMONG OTHER THINGS, LIMITING OUR LIABILITY. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT ACTIVATE OR USE THE SERVICE, OR INSTALL OR USE ANY XGEL DATA SYSTEMS, LLC SOFTWARE.

These Terms and Conditions of Use for the xGEL Data Systems, LLC Service , and the terms and conditions of any Software License for any of the xGEL Data Systems, LLC Software, and any rate plan that applies to your account, govern the use of the Service and the software. These Terms and Conditions supersede all earlier versions.

You acknowledge that, except as provided below at the section titled “Changes to the Agreement or Pricing Schedules”, no employee, dealer or other agent is authorized to make any representation or warranty, to this Agreement, the Service, or to waive or modify any terms or provisions of this Agreement.

Acceptance of Agreement by Application for an xGEL Data Systems, LLC Account

Your electronic acceptance on our web site by your application for an xGEL Data Systems, LLC Account, or your activation or use of any of the Service or the xGEL Data Systems, LLC software, constitutes your acceptance of the Agreement, and shall have the same force and effect as if you had actually signed the Agreement.

Changes to the Agreement or Pricing Schedules..

Except to the extent prohibited by law, this agreement, including any pricing plan for your usage, can be changed at any time by xGEL Data Systems, LLC, and your use of the Service after we issue notice to you of such change shall constitute acceptance by you of the changed Agreement. If you do not agree to the changed Agreement or pricing plan, then you can simply stop using the Service and the xGEL Data Systems, LLC service and software.

You agree that a message posted our website, or a message sent to the email associated with your account, said message indicating a prospective change in the user agreement shall constitute sufficient notice to you of the change.

Service Availability

An internet connection and compatible equipment/devices, including one or more computers is/are required in order to use the Service. You agree to make your own arrangements to obtain the required equipment/devices and internet service(s). You must ensure that your equipment is compatible with the Service. Availability and performance of the Service is subject to all memory, storage and other limitations in your equipment and in the equipment and infrastructure of the internet and the internet service providers and hosting companies that are used by xGEL Data Systems, LLC to provide the Service.

Actual Service coverage, speeds, locations and quality may vary. Service is subject to unavailability, including emergencies, third party service failures, transmission, equipment or network problems or limitations, interference, signal strength, and maintenance and repair, and may be interrupted, refused, limited or curtailed without notice.

We are not responsible or liable for any consequence to you as a result of your use of the Service or as any result of the Service itself. The Service is provided on an all faults included basis.

We may impose credit, usage or Service limits, suspend Service, or block certain kinds of usage in our sole discretion to protect users, our network or our business. Actual network speed and availability will vary based on equipment configuration, compression, distance, network congestion, interference and other factors. The accuracy and timeliness of data received is not guaranteed; delays or omissions may occur. We may, but do not have to, change or improve the Service by, among other things, changing or upgrading in any way.

Use of Service

Unless otherwise set forth by us in writing, the xGEL Data Systems, LLC Service is for only your use in performing engineering testing services by your company personnel. You agree not to resell or attempt to resell any aspect of the Service, whether for profit or otherwise, or to authorize any other individual or entity not an employee of yours to use the Service.

You agree that sharing the Service with another party breaches the Agreement, and may constitute fraud or theft, for which we reserve all rights and remedies. You have no proprietary or ownership rights to any log in name or password that you use on our network. We may change your log in name or password at any time subject to sending you prior notification. The IP address that you use shall be the bona fide IP address assigned by your ISP and that you will not program any other IP address into your equipment. You shall not provide or program any other equipment information or serial number or MAC address transmitted to xGEL Data Systems, LLC other that the bona fide information pertinent to the particular device that the xGEL software is authorized to run on.

You agree that any email feature of any xGEL Data Systems, LLC software or the service shall be used only to send information related to the reasonable use of the software. You also agree that, xGEL Data Systems, LLC is not responsible for configuring any send-email feature provided within the xGEL Data Systems, LLC service or software, so as to be compatible or operational with your or other’s security policies or email systems. While our current SMTP relay send-email feature works in relatively open systems, with the advent of new tools that may be implemented by the Operating System, or ISP’s, or client’s IT departments, some clients are unable to use this feature, and you agree that xGEL Data Systems is not responsible for adapting its service or software to accommodate, and that you will find other means of transmitting any filtered or blocked communication from within any xGEL software, should you desire such communication via any xGEL SMPT relay send-email feature be had.

You may not assign your log in name, password or IP address to any other person or equipment and you agree to faithfully transmit the true IP address, hard drive serial number, and MAC address and any other identifying information that the Service or software requires for its operation. You agree that we may access your equipment and information stored on it (such as data, drivers, software, etc.) to troubleshoot issues related to the equipment or network; enable, operate and update the Service and software; investigate activity that may be in violation of the Agreement; or to comply with law.

You agree that xGEL Data Systems, and its agents and employees, shall have unattended remote access to the xGEL folders and all files related to the xGEL service and software, for the purposes of providing support, upgrades, modifications, and/or troubleshooting of the installed software and the service. Such remote access is currently that provided by ConnectWise, however, we reserve the right to change providers as deemed necessary by xGEL Data Systems, LLC. You also agree that xGEL Data Systems, and its agents and employees, shall have a user named “xGEL Data Systems” set-up by you on all computers running the xGEL service and software, and that this user “xGEL Data Systems” shall have administrative rights to install any xGEL software, or perform any other xGEL maintenance/support functions.

You agree not to use or attempt to use the Service, the xGEL Data Systems, LLC network or website, or equipment on which xGEL Data Systems software is installed for any fraudulent, unlawful, harassing or abusive purpose, or so as to damage or cause risk to our business, reputation, employees, other users, facilities, or to any person.

Improper uses include, but are not limited to:

(a) Violating any applicable law or regulation, including participating in software piracy;
(b) Posting or transmitting content you do not have the right to post or transmit;
(c) Posting or transmitting content that infringes our, o a third party's, trademark, patent, trade secret, copyright, publicity, privacy, or other lawful right;
(d) Posting or transmitting content that is unlawful, untrue, stalking, harassing, libelous, defamatory, abusive, tortious, threatening, obscene, hateful, abusive, harmful or otherwise objectionable as determined in our sole discretion;
(e) Attempting to intercept, collect, transmit, inspect, or store, inbound or outbound transmissions between xGEL Data Systems, LLC software and our back-end server, or data about third parties without their knowledge or consent;
(f) Deleting, tampering with or revising any material posted by any other person or entity;
(g) Accessing, tampering with, or using non public areas or data of the Service, xGEL Data Systems, LLC computer systems and network, or any xGEL Data Systems, LLC website;
(h) Attempting to probe, scan, breach, or inspect or test the vulnerability of our system or network security or authentication measures without prior authorization of xGEL Data Systems, LLC;
(i) Attempting to access or search the Service, the xGEL Data Systems, LLC network or any xGEL Data Systems, LLC website with any engine, software, tool, agent, equipment or mechanism other than the software and/or search agents provided by us, or other generally available third party web browsers;
(j) Sending or attempting to send unsolicited messages, including without limitation, promotions or advertisements for products or services, "spam", "chain mail" or "junk mail";
(k) Using or attempting to use the Service, the xGEL Data Systems, LLC network or any xGEL Data Systems, LLC website to store, carry or send altered, deceptive or false source identifying information;
(l) Attempting to decipher, decompile, disassemble or reverse engineer any of the xGEL Data Systems, LLC software installed on your computers, or software comprising, or in any way making up a part of, the Service, the xGEL Data Systems, LLC network, or any of the xGEL Data Systems, LLC website;
(m) Interfering or attempting to interfere with the access of any user, host or network, including without limitation, sending a "virus" to the Service, the xGEL Data Systems, LLC network or any xGEL Data Systems, LLC website, overloading, "flooding," "spamming," "crashing," or "mailbombing" the Service, the xGEL Data Systems, LLC network or any xGEL Data Systems, LLC website;
(n) Impersonating or misrepresenting your affiliation with any person or entity;
(o) Using the Service to make fraudulent offers to sell or buy products, items, or services or to advance any type of financial scam such as "pyramid schemes", "Ponzi schemes", unregistered sales of securities, and securities fraud; or
(p) Engaging in excessively high volume data transfers or bandwidth consumption, hosting of a web server, internet relay chat server or any other server, and non traditional end user activities.

If we suspect violations of any of the above, we may in our sole discretion: (i) institute legal action, (ii) immediately, without prior notice to you, terminate or suspend access to your account and the Service, (iii) terminate any xGEL Data Systems, LLC agreements between us and you and the xGEL Data Systems, LLC Service provided under those agreements except that any portion of those agreements that are specified as surviving the Agreement shall still survive, and (iv) cooperate with law enforcement authorities in bringing legal proceedings against violators. You agree to reasonably cooperate with us in investigating suspected violations. Although we may do one or more of these things, we are not obligated to do any of them, yet our failure to do any of them shall not constitute waiver.

xGEL Data Systems, LLC reserves the right to install, implement, manage and/or operate one or more software, monitor, or other solutions designed to assist us in identifying and/or tracking activities that we consider to be illegal or violations of these Terms and Conditions, including but not limited to any of the activities described in this Section. We may, but are not obligated to, in our sole discretion, and without notice, remove, block, filter or restrict by any means any materials or information (including, but not limited to, emails or any email service provided to you by the xGEL software) that we consider in good faith to be actual or potential violations of the restrictions set forth in these Terms and Conditions, including but not limited to those activities described in this Section, and any other activities that may subject xGEL Data Systems, LLC or its customers to harm or liability, and our failure to do any of these things shall not act as waiver. xGEL Data Systems, LLC disclaims any and all liability for any failure on its part to prevent such materials or information from being transmitted over the Service and/or into or out of equipment on which the xGEL software is installed.

Termination or Suspension of Service

This Agreement becomes effective when you apply for an account After account approval by xGEL Data Systems, LLC, provision of service will continue until terminated or suspended by you or by us in the manner provided in this Agreement, except that any termination or suspension does not extinguish any obligations you have to xGEL Data Systems, LLC. You understand that if at any time you are not current in paying amounts owed to us, be they for any equipment or service, or if your credit or debit card ("Card") linked to your xGEL account expires, is declined, or does not process payment, or is otherwise rejected, we may terminate or suspend or block your access to the xGEL Service, and terminate or suspend or block your use of any xGEL software immediately in our discretion without notice. Upon notice of termination, suspension, or blockage of service you agree to remove any xGEL Data Systems software from your computers. Despite termination, suspension, or blockage, you will be liable for payment of any amounts due, and any other obligations incurred before or upon termination or suspension or block, whether your access to the service or software is ended by you or by xGEL Data Systems, LLC. You agree that you will not utilize any xGEL Data Systems, LLC software in the event of any notice of termination or suspension or block.

Except where prohibited by law, the xGEL Data Systems, LLC Service may be terminated at any time by you with no reason being required to be had or given, and the xGEL Data Systems, LLC Service can be terminated by us for no reason required to be had or to be given and we may terminate Service for any reason without notice. If you breach the Agreement, we may suspend or terminate your Service immediately without prior notice (except to the extent prohibited by law). You breach the Agreement by: (a) failing to pay any sum when due; (b) failing to comply with any provision in the Agreement or any other agreement between us; (c) becoming the subject of any proceedings under the Bankruptcy Code; (d) becoming insolvent; or (e) your financial institution dishonoring or returning for insufficient funds your check or credit card. In the event of cancellation, you are responsible for payment of all charges (including any cancellation fee) due to us under the Agreement, which charges will be immediately due and payable. If we reinstate Service to you after discontinuing Service, you may be subject to a credit check, and you agree to pay reactivation charges or deposits. Our remedies hereunder are not exclusive, but are in addition to all other remedies provided by law.

Your Account & xGEL Data Systems Automated and Manual Charges

The xGEL Data Systems, LLC account that you set up is linked to and will make automated charges to the credit card that you have provided us, and any usage of the xGEL Data Systems, LLC Service and software will be charged in accordance with the most recent pricing plan applicable for such service or software. The pricing plan is subject to change at any time and without notice. xGEL Data Systems, LLC considers the card holder or the person delegated to make charges against the credit card, and having the UserID and user password for xGEL Data Systems, LLC login, to be the SuperUser of the Account. The SuperUser has full access to the account, and may change the account information and perform other administrative functions on the account. You agree to protect your account’s UserID and password, and also agree to be responsible for the account.

In certain cases xGEL Data Systems will make manual charges to the account card, for example, in instances where the automate usage charge did not process correctly, or in cases to reconcile account balances, or in other cases in accordance with agreements or understandings between xGEL Data Systems. LLC and you regarding additional services, consulting, purchased equipment, etc.

No Deposits, No Fees in Advance for Direct Billing Credit Card Charge Accounts

With the Direct Billing Credit Card Charge Model of this Agreement there is no deposit payment, no up-front license, or payment of any fee in advance, required to create an account, or to use the xGEL Data Systems, LLC Service.

With other charging models there may be a deposit or advance fee required.

Billing and Payment of Charges

You agree to provide us with accurate and complete billing information including legal name, address, telephone number and credit card/billing information, and to update your account information with any changes. Failure to keep your account updated, and with sufficient lines of available credit may result in suspension of Service, particularly if your credit card charging information on your account is not current with that used by your credit card company, or if you go over your credit limits, and we are not able for this or other reasons to process your charge.

You represent that the address you have provided to us for billing purposes is, in the case of a personal credit card your correct billing and physical residential street address, or in the case of use of a corporate credit card, the correct business credit card billing address and company physical address. You authorize us to verify your creditworthiness with credit reporting agencies from time to time.

You agree to timely pay in full all charges for Service under the Agreement. In some instances the xGEL Data Systems, LLC software may not pick up all charges, or there may be a problem with the timely posting of charge items to you account, and you agree that in such event that you will pay for the items, and that we are allowed to make manual charges against the account credit card to effect a reconciliation of the account.

Unless we agree otherwise, you will be charged for use of the Service, software and other features on a 1st and 15th of the month billing cycle basis. We may change your billing cycle at any time.

You also authorize us to charge your Credit Card at or after termination of Service to pay what you then owe. If you revoke authorization to charge your Credit Card, or if for any reason your Credit Card issuer does not pay us, you still owe validly charged amounts to xGEL Data Systems, LLC and you agree to pay such amounts to xGEL Data Systems, LLC plus legal interest.

You authorize us to charge your credit or debit card linked to your account for any outstanding balance for service or equipment that we may provide to you.

Prices

All prices are stated and payable in US dollars.

You Are Responsible For All Taxes

The prices for the xGEL Data Systems, LLC Software and Services quoted on this Internet site or otherwise provided to you do not include taxes. xGEL Data Systems, LLC endeavors to charge all applicable federal, state, local, and other taxes on all products and services. However, the internet taxing situation is in flux and you are specifically advised, and you specifically agree, that you alone are responsible for any deficiency in federal, state, local, and other taxes or other fees even in the event that xGEL Data Systems, LLC has failed to collect them initially or in the proper amount. If xGEL Data Systems, LLC gets a sales tax audit or other audit for taxes that it was supposed to collect from you and remit to others, and that audit reveals that taxes or other fees are due, the xGEL Data Systems, LLC will charge your credit card for those additional taxes. It is the purchaser that is responsible for taxes and fees, NOT xGEL Data Systems, LLC.

Cancellation of Service

If you are on a Direct Billing Credit Card Charge Model you may cancel the xGEL Data Systems, LLC Service at any time without paying a cancellation fee. Other charge models may or may not have a cancellation fee.

If you cancel or if your account is canceled or terminated by xGEL Data Systems, LLC or by you, you must remove all xGEL Data Systems, LLC software from your computers, and cease to use the xGEL Data Systems, LLC Service. You are still bound by the obligations of confidence regarding the xGEL Data Systems service and any software license agreement terms regarding our confidential intellectual property, including patents, trade secrets, etc.

Incorrect Charges

If you believe you have been incorrectly charged, you must notify us by sending an email to us at billing@xgeldatasystems.com of such disputed charges within sixty (60) days from the date the disputed charges are first billed, or you waive your right to dispute those charges. (See also our Contact Us page for further addresses.) If you accept a credit to resolve an issue, you agree that the issue has been resolved. We may require you to fully describe the dispute and provide information concerning it in writing.

Digital Millennium Copyright Act ("DMCA") Notice

In operating the Service, we may act as a "services provider" (as defined in the DMCA) and offer services as an online provider of materials and links to third party web sites. As a result, third party materials that are not owned or controlled by us may be transmitted, stored, accessed or otherwise made available using the Service. If you believe any material available via the Service infringes a copyright, you should notify us using the notice procedure for claimed infringement under the DMCA. We will respond expeditiously to remove or disable access to material we determine may be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the party who has allegedly infringed.

Disclaimer of Warranties.

THE XGEL DATA SYSTEMS, LLC SERVICE AND ANY XGEL DATA SYSTEMS, LLC SOFTWARE IS PROVIDED ON AN "AS IS" AND "WITH ALL FAULTS" BASIS, AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE ALL OF WHICH ARE EXPRESSLY DISCLAIMED. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SERVICE. WE DO NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. ANY STATEMENTS MADE IN PACKAGING, MANUALS OR OTHER DOCUMENTS, INCLUDING THOSE ON ANY XGEL DATA SYSTEMS, LLC WEBSITE, OR BY ANY OF OUR AGENTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND NOT AS WARRANTIES BY US OF ANY KIND. NEITHER WE NOR OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, DEALERS, SUPPLIERS, PARENTS, SUBSIDIARIES OR AFFILIATES WARRANT THAT THE INFORMATION, PRODUCTS, PROCESSES, AND/OR SERVICES AVAILABLE THROUGH THE SERVICE WILL BE UNINTERRUPTED, ALWAYS AVAILABLE, ACCURATE, COMPLETE, USEFUL, FUNCTIONAL OR ERROR FREE. IF APPLICABLE STATE LAW DOES NOT ALLOW THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, THE RELEVANT PORTIONS OF THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

Limitation of Liability

WE SHALL NOT BE LIABLE FOR ANY DAMAGES OR DEFICIENCY IN PERFORMANCE CAUSED IN WHOLE OR IN PART BY THE ACT OR OMISSION OR DEFECT IN/OF ANY UNDERLYING CARRIER OR SERVICE PROVIDER, OR OF/FROM ANY SOFTWARE, DEALER, EQUIPMENT OR FACILITY FAILURE, NETWORK PROBLEMS, INTERFERENCE, LACK OF COVERAGE OR NETWORK CAPACITY, COMPUTATION ERROR, CORRUPTION OF DATA. ACTS OF GOD, STRIKES, FIRE, WAR, TERRORISM, RIOT, EMERGENCY, GOVERNMENT ACTIONS OR ANY OTHER CAUSE, REGARDLESS OF WHETHER IT WAS OR WAS NOT BEYOND OUR CONTROL. EVEN IF XGEL DATA SYSTEMS, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, XGEL DATA SYSTEMS, LLC WILL NOT BE LIABLE TO YOU OR ANY OF YOUR EMPLOYEES, AGENTS, CUSTOMERS OR ANY THIRD PARTIES FOR ANY DAMAGES ARISING OUT OF A CHAIN OF EVENTS OR CAUSATION IN WHICH YOUR USE OF THE SOFTWARE OR SERVICE IS A PART, INCLUDING WITHOUT LIMITATION: PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS OF PRIVACY OR SECURITY DAMAGES; PERSONAL INJURY OR PROPERTY DAMAGES; OR ANY DAMAGES WHATSOEVER RESULTING FROM INTERRUPTION OR FAILURE OF SERVICE, LOST PROFITS, LOSS OF BUSINESS, LOSS OF DATA, LOSS DUE TO UNAUTHORIZED ACCESS OR DUE TO VIRUSES OR OTHER HARMFUL COMPONENTS, COST OF REPLACEMENT PRODUCTS AND SERVICES, THE INABILITY TO USE THE SERVICE, THE CONTENT OF ANY DATA TRANSMISSION, COMMUNICATION OR MESSAGE TRANSMITTED TO OR RECEIVED BY YOUR EQUIPMENT, ACCESS TO THE WORLD WIDE WEB, THE INTERCEPTION OR LOSS OF ANY DATA OR TRANSMISSION, OR LOSSES RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR MESSAGES OR DATA RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR OTHER MODIFICATIONS OF OR LIMITATIONS TO CERTAIN REMEDIES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU, IN WHOLE OR IN PART.

THE MAXIMUM AGGREGATE LIABILITY OF XGEL DATA SYSTEMS, LLC TO YOU, AND THE EXCLUSIVE REMEDY AVAILABLE IN CONNECTION WITH THE AGREEMENT FOR ANY AND ALL DAMAGES, INJURY, LOSSES ARISING FROM ANY AND ALL CLAIMS AND/OR CAUSES OF ACTION RELATED TO THE SERVICE OR EQUIPMENT, SHALL BE $500.00 (Five Hundred dollars). THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THE AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY OR OTHER DAMAGES. EXCEPT TO THE EXTENT PROHIBITED BY LAW, ALL CLAIMS MUST BE BROUGHT WITHIN 1 YEAR OF THE DATE THE CLAIM ARISES.

Provision for Extinguishment of Claim(s) and Controversy

In the event of any claim(s) by you against xGEL Data Systems, LLC, or any of its employees, officers, or agents for damages or any other legal remedy, the tender of the amount of $500.00 (Five Hundred dollars) by xGEL Data Systems, LLC shall extinguish said claim(s) and controversy with prejudice and extinguish any claim or similar claim related to multiple instances of alleged damages.

Indemnification

You agree to defend, indemnify and hold us, harmless from and against any and all claims, demands, actions, liabilities, costs or damages wherein your use of the Service is in any way part of the chain of events commencing with your application of an account and thereafter leading to such claim. By way of example and not as limitation, if you have a client (a third party) that alleges defect or error in any data reported by you, even if said data provided through your use of the Service, or by the software, is defective or in error, you are responsible for the data that you transmit to your client; it is you, not xGEL Data Systems, LLC that must validate, check and approve it; and you agree that you will indemnify xGEL Data Systems, LLC against any and all claims by third parties wherein your use of the Service or software played any part. You further agree to pay our reasonable attorneys' and expert witnesses' fees and costs arising from any actions or claims hereunder and those incurred in establishing the applicability of this section.

Privacy and Security

The internet transmits data over a complex network and although xGEL Data Systems, LLC uses SSL to collect and transmit you credit card information, privacy cannot be guaranteed, and we are not liable to you or any other party for any lack of privacy you experience while using the Service. If you use the Service in a public location, you understand that others may be able to see and observe your use of the Service. We have the right, but not the obligation to monitor, intercept and disclose any transmissions over or using our facilities, and to provide customer billing, account, or use records, and related information under certain circumstances (for example, in response to lawful process, orders, subpoenas, or warrants, or other information, in good faith reliance on legal process, if required by law or to protect our rights, business, network, customers or property). Please consult the xGEL Data Systems, LLC Privacy Policy posted on our website for additional information on the use and disclosure of information. You acknowledge that the Service is not inherently secure and that communications can be intercepted by equipment and software designed for that purpose. Notwithstanding efforts to enhance security with respect to the Service, we cannot guarantee the effectiveness of these efforts and will not be liable to you or any other party for any lack of security that may result from your use of the Service or your equipment. You acknowledge that you are responsible for taking such precautions and providing such security measures best suited for your situation and intended use of the Service. We strongly encourage and support certain customer provided security solutions, such as virtual private networks, encryption and personal firewalls, but do not provide these to our users and are not responsible for their effectiveness.

You agree to protect your username and password and you are responsible for any usage of your account. You agree to immediately notify us of any unauthorized use of your account or other security breach..

Assignment

We may assign in whole or in part our rights or duties under the Agreement without prior notice to you and upon such assignment, provided there is a transfer of liabilities to the assignee, we shall be released from all liability hereunder. You may assign the Agreement only with our prior written consent. Subject to this restriction, the Agreement shall inure to the benefit of and be binding upon the heirs successors, and assigns of the respective parties.

Notices and Communication

Written notices to you shall be considered given and received by you on the third day after the date deposited in the U.S. Mail addressed to you at your address in our billing records or in the alternate, immediately upon our sending it to you using electronic means such as e mail. Written notice to us shall be considered given when received by our email system. You agree that we may contact you through the Service or your equipment that uses the xGEL Data Systems, LLC Service to notify you of changes to or information about your account, the Service, additional services or the Agreement.

Severability

All terms and provisions of these Terms and Conditions are independent of each other. If any term or provision of these Terms and Conditions is held to be inapplicable or unenforceable then: (a) such term or provision shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect, (b) the Agreement will not fail its essential purpose and (c) the balance of the terms and provisions shall remain unaffected and in full force and effect, unless our obligations hereunder are materially impaired, in which event we reserve the right to terminate the Agreement.

Entire Agreement/Applicable Law/Venue/Miscellaneous

This Agreement represents the final and entire agreement between you and us regarding the Service. Electronic images of the Agreement will be considered originals. You acknowledge that you have not relied on any other representations not specifically included in the Agreement. If we don't enforce our rights under any of the provisions of the Agreement, we may still require strict compliance in the future, and our failure to enforce any right or provision of this agreement does not estop us from later asserting/enforcing such right or create waiver.

Capacity

You represent that you are of legal age and have the legal capacity to enter into the Agreement. If you are contracting on behalf of a company, you represent that you are authorized to enter into the Agreement, and agree to be personally liable for all accounts if you are not so authorized. You acknowledge that you are responsible for (a) all charges incurred by any person you authorize to access your account, or to use your equipment, or the software or the Service and (b) ensuring that any person you authorize to access your account complies with the Agreement.

The Agreement is governed by applicable federal law, and the laws of the state of TEXAS. Foreign laws do not apply.

Survival

The following provisions, and any other provisions which may reasonably be construed as surviving, and the rights and obligations of the parties thereunder, shall survive any termination of the Agreement for any reason.

Other Agreements

xGEL Data Systems, LLC Software, and the xGEL Data Systems, LLC website are used in the operation of xGEL Data Systems, LLC software. The xGEL Data Systems, LLC Software, and the website also have terms and conditions of use which are in addition to these terms.