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Ownership of Site; Agreement to Terms of Use

These Terms and Conditions of Use (the “Terms of Use”) apply to the eXorithm web site located at www.exorithm.com ( the “Site”). The Site is the property of AKTIV Software Corporation. (“AKTIV”) and its licensors. BY USING THE SITE, YOU AGREE TO THESE TERMS OF USE; IF YOU DO NOT AGREE, DO NOT USE THE SITE.

AKTIV reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms of Use, at any time. It is your responsibility to check these Terms of Use periodically for changes. Your continued use of the Site following the posting of changes will mean that you accept and agree to the changes. As long as you comply with these Terms of Use, AKTIV grants you a personal, non-exclusive, non-transferable, limited privilege to enter and use the Site.

Content

All information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which you may have access to as part of, or through your use of, the Site are the sole responsibility of the person from which such content originated. All such information is referred to below as the “Content”.

You should be aware that Content presented to you as part of the Services, including but not limited to advertisements in the Services and sponsored Content within the Services may be protected by intellectual property rights which are owned by the sponsors or advertisers who provide that Content to AKTIV (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Content (either in whole or in part) unless you have been specifically told that you may do so by AKTIV or by the owners of that Content, in a separate agreement.

AKTIV reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from the Site.

You understand that by using the Site you may be exposed to Content that you may find offensive, indecent or objectionable and that, in this respect, you use the Site at your own risk.

You agree that you are solely responsible for (and that AKTIV has no responsibility to you or to any third party for) any Content that you create, transmit or display while using the Site and for the consequences of your actions (including any loss or damage which AKTIV may suffer) by doing so.

Your Use of the Site

You may not use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Site or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Site or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Site. AKTIV reserves the right to bar any such activity.

You may not attempt to gain unauthorized access to any portion or feature of the Site, or any other systems or networks connected to the Site or to any AKTIV server, or to any of the services offered on or through the Site, by hacking, password “mining” or any other illegitimate means.

You may not probe, scan or test the vulnerability of the Site or any network connected to the Site, nor breach the security or authentication measures on the Site or any network connected to the Site. You may not reverse look-up, trace or seek to trace any information on any other user of or visitor to the Site, or any other customer of AKTIV, including any AKTIV account not owned by you, to its source, or exploit the Site or any service or information made available or offered by or through the Site, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than your own information, as provided for by the Site.

You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site or AKTIV’s systems or networks, or any systems or networks connected to the Site or to AKTIV.

You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any transaction being conducted on the Site, or with any other person’s use of the Site.

You may not forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send to AKTIV on or through the Site or any service offered on or through the Site. You may not pretend that you are, or that you represent, someone else, or impersonate any other individual or entity.

You may not use the Site or any Content for any purpose that is unlawful or prohibited by these Terms of Use, or to solicit the performance of any illegal activity or other activity which infringes the rights of AKTIV or others.

Accounts, Passwords and Security

Certain features or services offered on or through the Site may require you to open an account (including setting up an eXorithm ID and password). You are entirely responsible for maintaining the confidentiality of the information you hold for your account, including your password, and for any and all activity that occurs under your account as a result of your failing to keep this information secure and confidential. You agree to notify AKTIV immediately of any unauthorized use of your account or password, or any other breach of security. You may be held liable for losses incurred by AKTIV or any other user of or visitor to the Site due to someone else using your AKTIV ID, password or account as a result of your failing to keep your account information secure and confidential.

You may not use anyone else’s eXorithm ID, password or account at any time without the express permission and consent of the holder of that eXorithm ID, password or account. AKTIV cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.

Privacy

Exorithm’s Privacy Policy applies to use of this Site, and its terms are made a part of these Terms of Use by this reference. To view Exorithm’s Privacy Policy, click here. Additionally, by using the Site, you acknowledge and agree that Internet transmissions are never completely private or secure. You understand that any message or information you send to the Site may be read or intercepted by others, even if there is a special notice that a particular transmission (for example, credit card information) is encrypted.

Disclaimers

AKTIV DOES NOT PROMISE THAT THE SITE OR ANY CONTENT, SERVICE OR FEATURE OF THE SITE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE SITE WILL PROVIDE SPECIFIC RESULTS. THE SITE AND ITS CONTENT ARE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. ALL INFORMATION PROVIDED ON THE SITE IS SUBJECT TO CHANGE WITHOUT NOTICE. AKTIV CANNOT ENSURE THAT ANY FILES OR OTHER DATA YOU DOWNLOAD FROM THE SITE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. AKTIV DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. AKTIV DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SITE AND/OR ANY AKTIV SERVICES. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE AND ANY LINKED SITES. YOUR SOLE REMEDY AGAINST AKTIV FOR DISSATISFACTION WITH THE SITE OR ANY CONTENT IS TO STOP USING THE SITE OR ANY SUCH CONTENT. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES.

The above disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.

AKTIV reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Site, or any portion of the Site, for any reason; (2) to modify or change the Site, or any portion of the Site, and any applicable policies or terms; and (3) to interrupt the operation of the Site, or any portion of the Site, as necessary to perform routine or non-routine maintenance, error correction, or other changes.

Limitation of Liability

Except where prohibited by law, in no event will AKTIV be liable to you for any indirect, consequential, exemplary, incidental or punitive damages, including lost profits, even if AKTIV has been advised of the possibility of such damages.

Indemnity

You agree to indemnify and hold AKTIV, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against AKTIV by any third party due to or arising out of or in connection with your use of the Site.

Violation of These Terms of Use

AKTIV may disclose any information we have about you (including your identity) if we determine that such disclosure is necessary in connection with any investigation or complaint regarding your use of the Site, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) AKTIV’s rights or property, or the rights or property of visitors to or users of the Site, including AKTIV’s customers. AKTIV reserves the right at all times to disclose any information that AKTIV deems necessary to comply with any applicable law, regulation, legal process or governmental request. AKTIV also may disclose your information when AKTIV determines that applicable law requires or permits such disclosure, including exchanging information with other companies and organizations for fraud protection purposes.

You acknowledge and agree that AKTIV may preserve any transmittal or communication by you with AKTIV through the Site or any service offered on or through the Site, and may also disclose such data if required to do so by law or AKTIV determines that such preservation or disclosure is reasonably necessary to (1) comply with legal process, (2) enforce these Terms of Use, (3) respond to claims that any such data violates the rights of others, or (4) protect the rights, property or personal safety of AKTIV, its employees, users of or visitors to the Site, and the public.

You agree that AKTIV may, in its sole discretion and without prior notice, terminate your access to the Site and/or block your future access to the Site if we determine that you have violated these Terms of Use or other agreements or guidelines which may be associated with your use of the Site. You also agree that any violation by you of these Terms of Use will constitute an unlawful and unfair business practice, and will cause irreparable harm to AKTIV, for which monetary damages would be inadequate, and you consent to AKTIV obtaining any injunctive or equitable relief that AKTIV deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies AKTIV may have at law or in equity.

You agree that AKTIV may, in its sole discretion and without prior notice, terminate your access to the Site, for cause, which includes (but is not limited to) (1) requests by law enforcement or other government agencies, (2) a request by you (self-initiated account deletions), (3) discontinuance or material modification of the Site or any service offered on or through the Site, or (4) unexpected technical issues or problems.

If AKTIV does take any legal action against you as a result of your violation of these Terms of Use, AKTIV will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to AKTIV. You agree that AKTIV will not be liable to you or to any third party for termination of your access to the Site as a result of any violation of these Terms of Use.

Governing Law; Dispute Resolution

You agree that all matters relating to your access to or use of the Site, including all disputes, will be governed by the laws of Canada and by the laws of the Province of British Columbia without regard to its conflicts of laws provisions. You agree to the personal jurisdiction by and venue in the provincial and federal courts in Victoria, British Columbia, and waive any objection to such jurisdiction or venue. Any claim under these Terms of Use must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred. No recovery may be sought or received for damages other than out-of-pocket expenses, except that the prevailing party will be entitled to costs and attorneys’ fees. In the event of any controversy or dispute between AKTIV and you arising out of or in connection with your use of the Site, the parties shall attempt, promptly and in good faith, to resolve any such dispute. If we are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), then either party may submit such controversy or dispute to mediation. If the dispute cannot be resolved through mediation, then the parties shall be free to pursue any right or remedy available to them under applicable law.

Feedback and Information

Any feedback you provide at this site shall be deemed to be non-confidential. AKTIV shall be free to use such information on an unrestricted basis.

The information contained in this web site is subject to change without notice.

AKTIV Software Corporation, 723 Paskin Way, Victoria, BC V8Z 6N4, Canada.

I have read and accept the Terms of Service

I agree that algorithms I create or edit will be made available under the terms of the eXorithm license