GENERAL TERMS AND CONDITIONS
Effective Date: 04th September 2020
1. INITIAL PROVISIONS
1.1. The provisions of these General Terms and Conditions shall apply to all Agreements concluded between HODEL TECNOLOGY LTD Affiliate as defined in the respective Agreement (JEXCEL
) and whoever is using Services provided by JEXCEL (Customer
1.2. The General Terms and Conditions are published on the JEXCEL website www.JEXCEL.net.
2.1. In these General Terms and Conditions, unless the context requires otherwise, the words and expressions set out in this clause 2.1 shall have the meaning ascribed to them herein:
- Account means the account created and/or authorised for a Customer based on the Agreement in order to utilise the Services;
- Affiliate(s) means any person, corporation or other entity that now or in the future, directly or indirectly controls, is controlled by or is under common control with Company. For purposes of this definition, control means with respect to: (a) with respect to a corporation, the ownership, directly or indirectly, of fifty percent (50%) or more of the voting power to elect directors thereof; and (b) with respect to any other entity, the power to direct the management of such entity.
- Agreement means an order form, reseller agreement, cooperation agreement or any other agreement concluded between JEXCEL and the Customer based on which Services shall be provided by JEXCEL to Customer; by concluding the Agreement, JEXCEL and the Customer undertake to be bound by the General Terms and Conditions;
- Business Day means a business day on which banks are open in the country of JEXCEL's registration;
- Confidential Information means technical and non-technical information including patents, copyright, trade secrets, proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, software, source documents, and formulas related to the current, future and proposed services and services, research, experimental work, development, design details and specifications, engineering, and information marked confidential or proprietary or which the recipient knows or has reason to know that the information shall be deemed confidential; for the avoidance of doubt, this term does not include any information that the receiving party may demonstrate by its written records: (a) was known to it prior to its disclosure by the disclosing party; (b) is or has become known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorised to make such disclosure; (d) has been independently developed by the receiving party; (e) has been approved for release with the written authorisation of the disclosing party; or (f) has been disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt notice to enable the other party to seek a protective order or otherwise prevent such disclosure;
- Customer Data means the data of the clients of the Customer (and the respective Customer's data, where relevant) to be provided by the Customer to JEXCEL for the purpose of the provision of the Services;
- Effective Date means the date specified in the respective Agreement as the date from which the Services are provided by JEXCEL to the Customer; in the absence of such date, the Services are provided from conclusion of the Agreement;
- Event means any user interaction with content processed, tracked or generated in connection with the Services, including but not limited to e-mail or SMS notifications, page views, transactions or data input;
- Fees means the Subscription Fees, fees for Setup, fees for On-demand Services, fees for emailing services, fees for SMS services, and any other types of fees that may be agreed in the Agreement;
- General Terms and Conditions means these General Terms and Conditions - JEXCEL Platform which are also available on the relevant JEXCEL's website;
- GTC Effective Date means the date specified in the heading of these General Terms and Conditions;
- Guides means user guides, cookbook, technical documentation and FAQs designed for some or all of the Services as may be provided to the Customer and/or published by JEXCEL on https://docs.JEXCEL.net;
- Legislation means all generally binding legal regulations of the country of registration of JEXCEL, legal regulations of the European Union, provided that such regulation directly and/or indirectly applies to the Parties' legal relationships, the Services and/or trading with the Parties;
- Parties jointly refers to JEXCEL and the Customer;
- Service(s) means Subscription Services, On-demand Services and any other service(s)provided based on any and all software services developed as a result of the activities of JEXCEL and as published and provided by JEXCEL;
- Subscription Fee(s) means fees for the usage of the Subscription Services as stipulated in the Agreement;
- Subscription Services means software as a service as specified in the respective Agreement that shall be provided by JEXCEL to the Customer;
- Territory means the territory of the UK and European Economic Area, unless otherwise agreed in the Agreement; if Customer's country of incorporation is the United States of America, Territory means the territory of the United States of America, unless otherwise agreed in the Agreement;
- Usage Allowances means any limitations that Services are or may be subject to, including, but not limited to, the maximum Event capacity, the number of users, campaign actions contacts, e-mails/SMS, IP addresses, scenarios, imports or any other limitations pursuant to the respective Agreement or Guides. If the Agreement does not stipulate the maximum Event capacity, a limitation of one hundred million Events shall apply.
3. SERVICES, AVAILABILITY AND SUPPORT
3.1. Subscription Services. Subject to these General Terms and Conditions and in accordance with any Usage Allowances, JEXCEL shall make the Subscription Services available to the Customer and provide the Customer (in addition to the Subscription Services) with other Services as stipulated in the Agreement. The Customer shall pay JEXCEL the Fees set forth in the Agreement in line with the payment terms set out in clause 4 of these General Terms and Conditions. Customer shall use the Services in compliance with the Acceptable Use Policy available at https://JEXCEL.net/terms-of-conditions. The Acceptable Use Policy shall form an integral part of these General Terms and Conditions.
3.2. Account. As part of the registration process, the Customer shall identify an administrative user name and password for the Customer's Account with JEXCEL.
3.3. Trial version. Before concluding the Agreement JEXCEL can, at its sole discretion, make available a free trial version of the Subscription Services to the Customer for limited use. Prior to using the trial version of the Subscription Services, the Customer needs to sign up for an Account and accept the General Terms and Conditions. The provision of the trial version of the Subscription Services shall last 30 (thirty) days. The Customer agrees that during the trial period only limited Subscription Services shall be provided to the Customer and for the sole purpose of testing and trying the Subscription Services. After the lapse of the 30-day trial period, the Customer and JEXCEL shall (a) enter into the Agreement, or (b) the Customer shall cease to use its Account and Services for any purpose. JEXCEL shall have the right any time during and/or after the 30-day trial period to stop providing the Services to Customer.
3.4. Availability. JEXCEL shall provide the Customer with the Subscription Services within the Territory. The Services shall be made available by JEXCEL subject to any unavailability caused by circumstances beyond JEXCEL's reasonable control, including any force majeure events, any computer, communications, Internet service or hosting facility failures or delays involving hardware, software, power or other systems not within JEXCEL's possession or reasonable control, or denial of service attacks. The Customer acknowledges that availability of the Services depends on the Customer's compliance with the Usage Allowances stipulated in the Agreement. Therefore, exceeding of the Usage Allowances may result in limitation or unavailability of the Services. The Subscription Services may be temporarily limited or interrupted due to maintenance, repair, modifications, upgrades or relocation. JEXCEL shall undertake reasonable endeavours to notify the Customer of scheduled and unscheduled outages that are expected to take more than four (4) hours and that may affect the Subscription Services.
4. PRICING POLICY, PAYMENT TERMS AND TAXES
Fees. The Customer shall pay all Fees specified in the Agreement. Except as otherwise specified in the Agreement, (a) the Subscription Fees are based on the respective Usage Allowances agreed in the Agreement and not on actual usage, and (b) unless agreed otherwise in a specific case, payment obligations are non-cancellable and the Fees paid are non-refundable.
Payment terms. Subscription Fees(s) shall be prepaid on a monthly or annual basis in advance based on the chosen plan by the customer. All amounts under the Agreement are payable in currency stipulated in the Agreement.
5. WARRANTIES FOR LICENSES
Jexcel subscription gives the customer the license to use Jexcel Products or services, including Jexcel Pro or Jexcel Cloud within the limits determined by the plan chosen by the customer. The right to use the software and the services ceases when the client is no longer an active subscriber. Jexcel reserves their right to delete all data and all information related to the customer account when the subscription is cancelled, independent on how the cancellation happens. So, Jexcel provides no guarantee that by resuming the payment a cancelled account can be reactivated with its original data.
Furthermore, Jexcel only distribute licenses to its own software. Jexcel is committed to solve any problem with 24 hours from the notice. If that is not possible due any external reason Jexcel will notify the client with a reasonable timeframe.
6. WARRANTIES FOR JEXCEL SERVICES
Any Warranties for all Services performed by JEXCEL will be stated in the applicable Contract and will apply only to the Contract in which they are contained.
7. ORGANIZATION AND AUTHORITY
Each party represents that: (i) they are a valid legal entity in good standing under the laws of the jurisdiction in which they are organized; (ii) they have full power and authority to enter into these Terms and any Contract, which will create a binding agreement between the parties; and (iii) the performance by the parties hereunder will not violate any obligation or duty owed to a third party.
8. DISCLAIMER OF WARRANTIES AND DAMAGES; LIMITATION OF LIABILITY
8.1 Except as stated herein, JEXCEL hereby disclaims all warranties of any kind, express or implied, including any implied warranties subscription or Services. In no event shall JEXCEL, its shareholders, directors, officers, employees or other representatives be liable for general, indirect, consequential, or punitive damages related to any service sold.
8.2 JEXCEL's liability for any damages relating to subscription or Services available through JEXCEL are limited to the value of the amounts paid by Customer under the Contract for such subscription or Services over the last twelve calendar months preceding the incident giving rise to the damage. In no event will JEXCEL be liable for any incidental, consequential, special, punitive or indirect damages of any kind, including damages resulting from delay, loss of profits, lost business opportunity, loss of content, interruption of business or loss of goodwill, which may arise in connection with or pertaining to these Terms or any Contract, even if such party has been notified of the possibility or likelihood of such damages occurring under any theory of law (including tort or other theory).
8.3 Customer agrees that any Contract or other document relating to the purchase of subscription or Services submitted to JEXCEL that includes any warranty to Customer or that includes language that may create a liability for JEXCEL, or conflicts with these Terms, is void and of no effect, unless it complies with the integration requirements stated.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Nothing in these Terms provides Customer any right, title or interest in or to any intellectual property comprised in the licenses or the Services, which will at all times remain the property of JEXCEL or of the Licensors, as applicable.
9.2 Customer acknowledges that the EULA/PT or similar agreement will outline all usage rights offered by the Licensor to Customer with respect to the subscription purchased.
9.3 Customer acknowledges that it is buying the subscription for its own internal use and not for resale.
JEXCEL would only provide technical support for payment customers, and the limits of such technical support is express on the plan chosen by the customer.
11. PAYMENT TERMS
11.1 If Customer does not pay the amounts of subscription owed in a timely manner, then Customer shall pay interest charges and late payment fees on the outstanding amount, without any written demand or notice of default being necessary.
11.2 Customer shall pay all charges incurred by authorized users of its account, by Stripe, but we can use Paypal in the future. Customer shall pay all attorney fees, court costs, collection agency fees, or any other costs incurred by JEXCEL in collecting any overdue amount owed.
12. FORCE MAJEURE
JEXCEL shall not be liable to Customer for any loss or damages which may be suffered by Customer as a direct or indirect result of the subscription and Services by JEXCEL being prevented, hindered, delayed or rendered uneconomic by reason of circumstances or events beyond JEXCEL's reasonable control including but not limited to acts of God, war, riot, strike, lock-out, fire, flood, and storm or any kind of pandemic.
Subject to applicable law or regulation, the parties shall maintain the confidentiality of any Confidential Information and shall not, without the prior written consent of the disclosing party (Discloser
), disclose such confidential information to any third party (excluding affiliates). Confidential Information
means any information that is designated as Confidential
by the Discloser or that the receiving party (Recipient
) should reasonably believe to be confidential given the circumstances. Confidential information excludes any information that: (i) is known by the Recipient prior to disclosure; (ii) becomes publically available through no fault of the Recipient; (iii) is disclosed to Recipient by a third party with the legal right to make such disclosure; or (iv) is independently developed by Recipient without use or reference to the Discloser's Confidential Information.
14. JURISDICTION AND GOVERNING LAW
In case of any controversy or dispute, JEXCEL, Customer and/or the Affiliates shall discuss the matter in controversy or dispute and make a diligent effort to find an amicable solution. If the dispute is not resolved by finding an amicable solution, all disputes arising out of or in connection with these Terms or their validity will be finally resolved by the courts of the state/country in which the offices of the JEXCEL Affiliate entering into the Contract are located. The United Nations Convention on the International Sales of Goods will not apply to these Terms or any Contract.
15.1 The invalidity or unenforceability of any provision of these Terms will not adversely affect the validity or enforceability of the remaining provisions.
15.2 All notices and other communications required or permitted to be served or given shall be in writing.
15.3 The failure of JEXCEL to enforce the terms of these Terms does not constitute a waiver of it and will in no way affect the right to later enforce such terms.
15.4 Any heading, caption, or paragraph title contained in these Terms is inserted only as a matter of convenience and in no way defines or explains any paragraph or provision hereof.
15.5 These Terms may be executed in any number of counterparts, which taken together will represent a single document. Digital, facsimile, and other electronic signatures will be deemed to be originals and will be enforceable between the parties.
15.6 These Terms together with the Contracts, represent the entire agreement between the parties regarding the subject matter hereof, and supersede all other agreements and understandings.
15.7 Jexcel reserves the right to change the terms and conditions by anytime. Jexcel will inform all clients of those changes to give at least one month for the clients to decide continuing using the services under the new terms. If the client does not respond and continue using, implies unconditional acceptance of those new terms.
15.8 Jexcel should not be liable, but if do happens should no exceed what was paid by the customer. Even if the client is not satisfied, or have any problem or loss due to the service.
16. ACKNOWLEDGEMENT AND CONSENT