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Sr Lab Tech

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  • SUPER USER
  • COMPANY
  • CREDIT CARD
  • REFERRAL
  • CONFIRM
  • * Primary Email Address:
  • * Confirm Primary Email Address:

  • This is where xGEL will send all the messages to you (correspondence, invoices, install authorization requests, etc.)

  • Secondary Email Address:
  • Same as Primary Email

  • Fill this out if you want us to send invoices to another email address. If left blank, we will send invoices to the primary address.

  • Confirm Secondary Email Address:
  • * Username:

  • Use letters and/or numbers only.

    Must contain between 6 and 20 characters.

  • * Password:

  • Do NOT give out your password. Anybody that has your password will be able to make charges on your credit card.

    Use letters and numbers only.

    Must include at least one letter and one numeric digit.

    Must contain between 6 and 20 characters.

  • * Confirm Password:
  • * Phone Number:

  • Enter numbers only

  • Company Info
  • * Full Company Name:
  • * Phone Number:

  • Enter only the numbers

  • Physical Address
  • * Physical Address Line 1:
  • Physical Address Line 2:

  • Apartment, suite, unit, building, floor, etc.

  • * City:
  • * State:
  • * Zip Code:
  • * Country:
  • Mailing Address
  • * Mailing Address Line 1:
  • Mailing Address Line 2:

  • Apartment, suite, unit, building, floor, etc.

  • * City:
  • * State:
  • * Zip Code:
  • * Country:
  • * Credit Card Data:
  • * Name on Card:
  • * Card Administrator Phone Number:

  • How do we get hold of the person that owns/manages/administers this card?

  • Purchase Order Number:

NOTICE: Your access to the xGEL LabMate software will be suspended if this card, or any other card or any financial instrument you present for making any purchase from xGEL Data Systems, LLC is refused or declined or not able to be processed for any reason. Because of this you must make sure that your card always has available balance and that it has not expired, and that your other information is correct.

  • Billing address
  • * Billing Address Line1:
  • * Billing Address Line 2:

  • Apartment, suite, unit, building, floor, etc.

  • * City:
  • * State:
  • * Country:
  • * How did you hear about us?:
  • Comments:
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Will my information be kept safe?

We are committed to keeping your personal information secure. To protect our customers, we rely on proven technologies like Secure Sockets Layer in conjunction with robust physical and network security on all our systems. Please refer to our privacy policy for additional information.

Thank you

Your information has been submitted

Your information has been submitted to xGEL Data Systems, LLC and it is being reviewed. Please allow 24 hours for us to send you a confirmation of the status of your Account Setup.

The confirmation will be sent to the email account that you specified in the Account Setup.

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.


Copyright © 2005-2023 xGEL Data Systems, LLC. All Rights Reserved
xGEL Terms and Conditions of Use for the xGEL Data Systems Service 2023_11_05

xGEL Data Systems, LLC Software Product License Agreement

for

xGEL LabMate, and all other xGEL Data Systems, LLC Software

IMPORTANT - READ CAREFULLY

THIS SOFTWARE LICENSE AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU ("LICENSEE") AND XGEL DATA SYSTEMS, LLC (“LICENSOR”), hereinafter also referred to by the term xGEL, or xGEL Data Systems.

BY CLICKING THE “I AGREE” BUTTON THAT APPEARS DURING THE SOFTWARE INSTALLATION PROCESS, OR BY CREATING AN ACCOUNT WITH XGEL DATA SYSTEMS, LLC, WITH OR WITHOUT THE ASSISTANCE OF ANY REPRESENTATIVE OF XGEL DATA SYSTEMS, LLC, YOU ACCEPT AND AGREE TO BE BOUND TO ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT, WITHOUT LIMITATION OR QUALIFICATION.

READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE CLICKING THE “I AGREE” BUTTON, OR CREATING AN ACCOUNT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, CLICK THE “I DISAGREE” BUTTON, OR DO NOT CREATE AN ACCOUNT.

AT THIS TIME, THE SOFTWARE PRODUCT IS ONLY AVAILABLE FOR LICENSE TO BUSINESSES, BE THEY A SOLE PROPRIETOR, DBA, PARTNERSHIP, OR CORPORATION. THE SOFTWARE PRODUCT IS NOT AVAILABLE FOR LICENSE TO BUSINESS TRUSTS, OR OTHER TRUSTS.

BY YOUR CLICKING OF THE "I AGREE" BUTTON, OR CREATING AN ACCOUNT, YOU ARE EXECUTING THIS AGREEMENT AND REPRESENTING THAT YOU ARE A SOLE PROPRIETOR, OR AN EMPLOYEE OF THE SOLE PROPRIETOR, DBA, PARTNERSHIP, OR CORPORATE ENTITY THAT WILL BE THE LICENSEE ON YOUR EXECUTION OF THIS AGREEMENT, AND THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY, AND IN DOING SO, TO BIND YOURSELF AND THAT ENTITY TO THESE TERMS.

THE SOFTWARE PRODUCT IS PROTECTED BY UNITED STATES COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED USE, REPRODUCTION OR DISTRIBUTION OF THE SOFTWARE PRODUCT OR ANY OF ITS PARTS IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.

  1. CONFIDENTIAL DISCLOSURE. In addition to copyrighted and other material, this Software Product includes, and also creates items which comprise: trade secrets, know-how, trade secrets, and other proprietary material and information belonging to the Licensor. The Software Product is being made available in strict confidence solely for Licensee's use in accordance with the provisions of this Agreement. Any use or disclosure of the Software Product, including, but not limited to: it's executable program (.exe file or files), or its algorithms, protocols, architecture, or user interfaces, or user interface navigation sequences, logic, database(s) or other structure(s), or its trade dress, other than in strict accordance with this license agreement, is prohibited, and may be actionable as a violation of the Licensor's trade secret and other proprietary rights now or hereafter exiting, and Licensee agrees to use, secure, and protect the Software Product consistent with the maintenance of Licensor's rights in the Software Product.

  2. Ownership of Software Product. YOUR DO NOT OWN THE SOFTWARE PRODUCT OR ACQUIRE ANY INTELLECTUAL PROPERTY OR OTHER RIGHTS IN IT.M The Software Product is owned by Licensor, and is protected by copyright laws and international copyright treaties, as well as other contract and intellectual property laws and treaties, and Licensor retains all rights now or hereafter existing to the Software Product.

    The Software Product includes, but is not limited to:

    1. All software that is downloaded and/or installed after you hit the "I Agree" button, or after you create an account with xGEL Data Systems, LLC;
    2. Any media, printed materials, and “online” or electronic documentation that relates to the Software Product;
    3. Anything created, captured, output, input, or displayed by/to the Software Product, including, but not limited to:
      screen images,
      button text, layouts, colors, geometry, etc.
      customization settings,
      software interfaces,
      databases, and any and all data contained in any database(s),
      files created when you press the export button of the Software Product's interface (.gpj, .xls, .mdb files),
      backup, temporary, working, or other files,
      software generated emails, reports, printouts or forms;
    4. Any and all derivatives of the Software Product, whether created by xGEL Data Systems or by others.

    By provisions b), c), and d) above, the Software Product is aggregating, and what constitutes the Software Product changes as the original Software Product is used.

    Licensor retains title to the Software Product as that term is broadly defined above, and Licensee has no ownership rights in/to any of the Software Product, and shall not contest nor take any action contrary to Licensor's ownership or other intellectual property or other rights regarding the Software Product, including that Licensee will not initiate or join any action disputing Licensor's use of the software, be that action be by assertion of patent infringement, misappropriation of trade secret(s), or violation of any other law, including that pertaining to intellectual or other property or trade secrets.

    By execution of this agreement, Licensee specifically grants Licensor a royalty free license to make, manufacture, use and/or sell any intellectual or other property asserted by Licensee to be the property of Licensee which is also asserted herein by Licensor as being or becoming the property of Licensor.

    All rights not specifically granted to the Licensee in this Agreement are reserved to Licensor. Licensor owns all data captured, input into, or created by the Software Product, and you specifically agree that you are, by this agreement, assigning to Licensor any copyright not otherwise owned by Licensor by virtue of other provisions of this agreement, however:

    1. the data contained in the export files (.mdb, .gpj, .xls, or .csv files) created by the Software Product, once imported by Licensee into other software, or extracted from that exported mdb, .gpj, or .csv file by Licensee, or converted by Licensee to another format, shall be a derivative authorized under this Licensee Agreement to be made and/or used by Licensee, and such derivative shall, on its creation by Licensee, be owned by Licensee, without compromising any rights of the Licensor to the original data or information contained in such data or any derivative the Licensor makes from the data or information;
    2. the data contained in any received email that has been sent by the Software Product shall be a derivative authorized under this Licensee Agreement to be made and or used by Licensee, and such derivative shall, on its receipt by Licensee's addressee, be owned by Licensee, without compromising any rights of the Licensor to the original data or information contained in such email, data or any derivative the Licensor makes from the email, data or information;
    3. the soils or other materials description text and test assignments on any printout of test assignments made by pressing the software's "Print Tests" button, may be copied, either by OCR or manual data entry, into another representation of the soils or other materials description and test assignment data, and that Derivative shall, on its creation by Licensee, be owned by Licensee, without compromising any rights of the Licensor to the original data or information contained in such data or any derivative the Licensor makes from the data or information.

  3. License Grant. Upon clicking the "I AGREE" button, or by your creation of account, the Software Product is licensed, under a fee based, non-exclusive, non-transferrable, revocable license, to you by Licensor for your use in accordance with the terms of this Agreement. The Licensor, under this Agreement grants you ONLY the right (The License Grant) to install and use, in accordance with the provisions of this agreement, and in accordance with the functionality intended by Licensor, one copy of the Software Product on a single computer, and that use shall be only for the collection and processing of geotechnical testing laboratory test data, in accordance with the Licensor's functionality programmed into the Software Product.

    You may not transfer any of your license rights in the Software Product to any other party. See also the provisions of this Agreement styled "Assignment".

  4. License Fee Required. For the grant of the License, you agree to pay the Licensor in accordance with the then current fee schedule applicable to you for your use of the Software Product and the xGEL Data Systems Service.

  5. Restrictions on Use and Transfer. In addition to any restrictions found elsewhere in this Agreement:

    You may not allow operation of any part of the Software Product by any other parties other than you or your employees that need to operate the Software Product to perform their duties of collection, testing, reporting, analysis, administration or engineering concerning soils or other materials data; or those employees needing to operate the Software Product for administration of the Software Product's proper operation at your location; and only if such operation is not in conflict with other provisions of this Agreement, and only if such operation is in conformance with the provisions of this agreement.

    In addition, you agree that the actions of operators authorized by you shall be construed as having been taken by you, and that you are responsible for ensuring that your operations are aware and also bound to these license provisions.

    You may not operate the Software Product in the presence of anyone who is not one of your employees, or an employee or agent or other authorized party of Licensor.

    You may not allow anyone who is not one of your employees, or an employee or agent or party authorized under separate direction of Licensor, to view or operate the Software Product.

    You may not allow any software architect, software engineer, software coder, etc., or anyone who is conversant in software or database development who is not one of your employees, or an employee or agent or party authorized under separate direction of Licensor, to view or operate the Software Product. However, if such personnel are your employee, or an employee or agent or party authorized under separate direction of Licensor, and they view or operate the Software Product, the provisions provided elsewhere in this agreement pertaining to prohibitions on reverse engineering, derivatives, etc. apply. While xGEL Data Systems, makes its products available for use in accordance with this agreement, it does not do so so that you may use the licensed Software Product as a basis for copying or working-around the licensed Software Product(s).

    You may not rent, lend, loan, or lease, any part of the Software Product to any party.

    You may not use the Software Product as part of providing service bureau services for any party, except that you may use the Software Product installed on a computer in your laboratory for persons also located at that laboratory to enter and process lab data for your subsidiaries or branch offices. For example, if a branch office sends its soils or other materials to one of the other branch offices, or HQ, for testing, then the Software Product may be used to process that data at the location where the testing is done, even if there are inter-office charges for doing so.

    You may not run or operate the Software Product from a remote location. For example, and not as limitation, you may not use Remote Desktop Services®, PCRemote® , ConnectWise, LogMeIn, nor any other program to operate the Software Product. The Software Product user, the data entry, and the Software Product must be located physically in the lab where the lab data is being collected. An exception to this is that your corporate IT troubleshooting personnel may remote-in for diagnostic and support ticket purposes.

    You may not, except for derivatives of the Software Product’s .gpj or other files, or printouts of soils or other materials test assignments, create, or cause to be created, any derivative works based on the Software Product in whole or in part. In addition, you will not, except for derivatives of the Software Product ‘s exported .gpj, .mdb, .csv, and/or .xls files, or printouts of soils or other materials test assignments, use or cause to be used, any derivative works based on this Software Product unless such derivatives, under a separate Agreement, are licensed by Licensor for your use. Standing alone in and of themselves, and also included within the ambit of construction of the prohibitions on derivatives is that:

    You may not may not translate, decompile, reverse engineer, disassemble, debug, transform, including transformation from one medium to another, or otherwise reduce any part the Software Product to a human-perceivable or other form, except and only to the extent that in spite of the foregoing, Licensor's allowance of such activity is expressly required by applicable law pre-existing at the time this Agreement is entered into; or, except that transformations performed by the licensed Software Product itself are created. (Concerning transformations performed by the licensed Software Product itself, as example, but not as limitation, the Software Product can cause to print on a printer, or a as a pdf file, various documents. These printouts and files, on creation, become part of the Software Product, and are copyrighted, however, in accordance with a previous part of this Agreement they may be used by the licensee).

    You may not modify this Software Product except for modifications to the Software Product itself made by the operation of the Software Product itself in accordance with the Licensor’s intended design. (For example, in the normal use of the Software Product, soils or other materials test data is added to the Software Product's database. This, of course, is a modification to the Software Product made by the Software Product itself and is allowed.)

    You may not transmit, transfer, or distribute any part of the Software Product to any party, except that backup and certain other data files (.gpj data files created by the Software Product Export button), may be transmitted to your employees for their archiving and import, respectively, into software used by you to report the results of your laboratory testing. (For example, the Software Product's exported .gpj, .mdb, csv, and .xls files may be imported into gINT ® or Excel ® or other compatible software for subsequent creation by those products of your lab data report.)

    You may not electronically or otherwise transmit any portion of the Software Product, including the Software Product's database files (.mdb files), from one computer to another or over a network, except that: you may: print the Software Product 's soils or other materials test assignment sheets on a printer connected to another computer in your office; transmit the Software Product project exported data files (.gpj , .mdb, .csv, .xls files) created by the Software Product's EXPORT button to another computer for import into that software used by you to report the results of your laboratory testing to your clients; and you may, as part of your data backup policy, transmit the Software Product, including any of the manual or automatic backup .mdb files and the export files (.gpj , .mdb, .csv, .xls files) created by the Software Product to a backup device that is secure and under your custody and control; and that you may transmit email messages created and sent by the inherent functionality provided by the Licensor to your staff or to others.

    You may not crack or attempt to crack or hack, or have others crack or hack or attempt to crack of hack, any security, encryption, or other protections on any part of the Software Product. This includes that you may not intercept or attempt to intercept any outbound or inbound communication that the Software Product makes to it remote server.

    You may not access or connect to the databases or extract data from the database(s) of the Software Product except by the access or connections made by the Software Product itself in its normal mode of operation, except that you may access or connect or open, any of the Software Product’s exported .gpj, .mdb, .csv, & .xls files.

    You may not , except for the Software Product’s exported .gpj , .mdb, .csv, .xls files, view or expose to view any of the data, logic, or structure of the Software Product's data or databases, except as that which is provided by the Software Product itself in its normal mode of operation - and in that instance, only to persons authorized elsewhere in this agreement.

    In all the provisions concerning what you may not do, it is agreed that each provision, here and elsewhere in this Agreement, shall be construed to as your agreement to not only not do the act yourself, but also as your agreement that you will not cause, aid, or abet the prohibited act(s) to occur.

  6. NO WARRANTIES. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE PRODUCT IS AT YOUR SOLE RISK. THE SOFTWARE PRODUCT AND RELATED DOCUMENTATION ARE PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND AND LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE PRODUCT WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE PRODUCT WILL BE CORRECTED. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY YOU.

    FURTHERMORE, LICENSOR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE PRODUCT OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR LICENSOR'S AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SHOULD THE SOFTWARE PRODUCT PROVE DEFECTIVE, YOU (AND NOT LICENSOR OR LICENSOR'S AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.

  7. LIMITATION OF LIABILITY. LICENSOR, ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, SHALL NOT BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER KIND OF DAMAGE ) ARISING OUT OF THE USE, MISUSE OR INABILITY TO USE THE SOFTWARE PRODUCT OR RELATED DOCUMENTATION, EVEN IF LICENSOR OR LICENSOR'S AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE LOSS HAS BEEN OR IS ALLEGED TO HAVE BEEN CAUSED BY LICENSOR’S NEGLIGENCE OR OTHER ACT.

    LICENSOR'S TOTAL LIABILITY TO YOU ANY DAMAGES AND/OR LOSSES (INCLUDING ATTORNEY FEES AND COURT COSTS), NOT WITHIN THE AMBIT OF THE ABOVE SHALL NOT EXCEED THE AMOUNT OF $500.00 (FIVE HUNDRED DOLLARS). THIS LIMIT APPLIES IN THE AGGREGATE REGARDLESS OF WHETHER THE DAMAGES AND/OR LOSSES OCCURRED OR ARE ALLEGED TO HAVE OCCURRED BECAUSE OF A SINGLE USE OR MULTIPLE USES OR ATTEMPTS TO USE, THE SOFTWARE PRODUCT, AND/OR BECAUSE OF ONE OR MULTIPLE FAILURES OR ALLEGED FAILURES OF THE SOFTWARE PRODUCT TO FUNCTION PROPERLY OR TO FUNCTION TO YOUR EXPECTATIONS (WHETHER OR NOT THOSE EXPECTATIONS ARE “REASONABLE”) AND WHETHER OR NOT USES, ATTEMPTS TO USE, OR ALLEGED FAILURES ARE ALLEGED OR DETERMINED TO HAVE BEEN RELATED TO ONE OR SEPARATE MULTIPLE CONTRACTS BETWEEN LICENSOR AND LICENSEE.

  8. Provision for Extinguishment of All Claim(s) and Controversy. In the event of any assertion(s) or claim(s) by you against xGEL Data Systems, or anyone else for damages or any other legal remedy, the tender to you, of the amount of $500.00 (five hundred dollars) by xGEL Data Systems. LLC at any time, whether prior to or after initiation of any suit or action with any legal or regulatory authority, shall extinguish said assertion(s) or claim(s) or controversy (controversies) with prejudice, and extinguish any past, present, or future single or multiple instance of assertion, claim, or controversy you have or may have against xGEL Data Systems, LLC, whether related to the same or different circumstances, or arising from this or separate instances of the License Agreement. This amount is an aggregate amount, and not a per instance amount. This provision is in addition to any Limitation of Liability.

  9. Data Collection by Licensor, and Restriction on Licensor's Use. This Software Product collects data and may transmit that data to the Licensor for use by Licensor. (By way of example, and not as limitation, the Software Product may periodically transmit data comprising, soils or other materials test information on soils or other materials samples tested by Licensee, user keystrokes, project location and other data, user statistics, program usage data, etc.) Part of Licensor's business activities involve the collection, aggregation, statistical analysis, research, mapping, and other activities included in the broad terms of "information gathering/creation", "data-mining", "data-recombining", and "intellectual property creation" utilizing data which is transmitted to Licensor's business, and the data or derivatives may be made available to others by Licensor. Although as mentioned elsewhere, Licensor owns all data captured or created by the Software Product, and all information deriving from it, and Licensee shall not own, and by this Agreement assigns to Licensor, all patent, copyright, trademark or other intellectual property rights in the captured data and information derived from it, Licensor agrees that it will not disclose to non-Licensor affiliated third parties, except as may be allowed or required by operation or rule of law, any information that unambiguously identifies Licensee as the source of any specific data element except with permission of Licensee. For, example, Licensor agrees not to publish soils or other materials data for a particular project site if , as part of the publication, the identity of the Licensee as the source of the data would be made, except that publishing of such combination may be made to Licensee, or may be made to others if otherwise authorized by Licensee. Licensee shall not retain or own any rights to limit disclosure or use of data except as provided in the two preceding sentences.

  10. Activation and Software Product Use. This Software Product requires that Licensee provide and allow the Software Product to establish and use Licensee's network resources and Internet connection during activation and at other times. During installation, the Software Product will collect certain technical hardware and software identifying information concerning your computer and/or network and will use this information as part of its License protection and License management procedures. You agree that Licensor may collect and use this information. You may be required to re-install the Software Product if you modify your computer hardware or its software.

  11. Termination of Licensor's Grant to Use. The Licensor's grant to Licensee to use the Software Product is effective until terminated either by you or by Licensor, and this License to use the Software Product may be terminated immediately without notice if you fail to comply with any provision of this Agreement. Termination may be made unilaterally at any time with no notice or reason required to be given by either party, and you agree to hold Licensor harmless and indemnify Licensor against all claims arising out of termination, including those for damage or otherwise. Upon termination you must destroy the Software Product, related documentation and all copies thereof, including all exported files (.gpj , .mdb, .csv, .xls files) created by use of the Software Product, all Software Product databases (.mdb files used in the operation of the software), and Software Product database backup files, and provide written confirmation that such has been done. If Licensor makes a request via public announcement or press release or other means to stop using the copies of the Software, you will comply immediately with this request. Termination of the Licensor's grant to use the Software Product does not terminate your Restrictions on Use and Transfer or other obligations under this agreement.

  12. No Support Required of Licensor. You agree that unless the Licensee has a separate paid Support Agreement with Licensor, the Licensor is not required to provide any support, and any support that is provided without a separate Support Agreement shall not create a duty to provide further support. Any support that is provided shall be deemed to be part of the Software Product, and is subject to the provisions herein as if it had been incorporated into the original Software Product. In the event that Licensor provides support, that support is voluntary at the discretion of Licensor, and shall be free, or paid for under negotiated terms before-hand.

  13. Licensee Backups Required/No Reliance to be Made on Software Product's Backup/Archive Capability. You agree to backup the Software Product and its databases and data files using products provided by others. You agree that you will not rely on any action of the Software Product to create backup files and agree that Licensor is not responsible for creating any backups or archives of the Software Product or the correct functioning of any internal Software Product backup or archive routine.

  14. Interruption of Service. This Software Product requires an internet connection to operate. Licensor is not responsible for any down-time regardless of cause or source. Licensees agree to revert as needed to their previous manner of data collection and processing in the event of unavailability of the Software Product functionality.

    In addition, changes are made from time to time by Microsoft to its operating system, and in the event that a change is made that affects or “breaks” the operation on the Software Product, while xGEL Data Systems will endeavor at its option to develop a work-around, xGEL Data Systems is not obligated to do so, and continued operation of the software may require Licensee to revert back to a previous version of the Microsoft operation system where the Software Product was working.

    As further addition, if changes are made to the corporate IT security policies that affect the use of the Software Product, including but not limited to, the Software Product’s feature used to send mail, or the product’s ability to communicate with its remote database, then while xGEL Data Systems will endeavor, at its option, to develop a work-around, xGEL Data Systems is not obligated to do so, and continued operation of the software may require Licensee to adjust the IP infrastructure/parameters to allow such operations to continue.

  15. Assignment. Except with the separate express written permission of Licensor, Licensee may not sell, pledge, transfer, mortgage, or otherwise assign neither this Agreement or any part of it or any interest in it , nor the Software Product, to any other party - the term "other party" including, but not limited to: any parent or subsidiary of Licensee, any entity in which Licensee has ownership interest, or to any entity having or acquiring ownership interest in Licensee. This restriction applies whether that interest be created by merger, sale, consolidation, acquisition, reorganization or joint operating agreement. Licensor may sell, pledge, transfer, mortgage, or otherwise assign or dispose of this Agreement or any interest it to any other party without notice to Licensee.

    Farmer Talk: If some other entity buys your company, this License is not automatically extended to them, and they will have to create their own account subject to our approval, or get our approval to change the ownership of the account to the new entity. If somebody buys us out, we can transfer your accounts to the new entity without having to get permission from you.

  16. Licensee as Reference. Licensee shall permit its name and any testimonial feedback comments to be used in Licensor's promotion of the Software Product.

  17. Export Law Assurance. You agree and certify that neither the Software Product nor any other technical data received from Licensor, nor the direct product thereof, will be exported outside the United States except as authorized and as permitted by the laws and regulations of the United States. If the Software has been rightfully obtained by you outside of the United States, you agree that you will not re-export the Software nor any other technical data received from Licensor, nor the direct product thereof, except as permitted by the laws and regulations of the United States and the laws and regulations of the jurisdiction in which you obtained the Software.

  18. Government End Users. The Software Product and related documentation are provided with Restricted Rights. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable. Supplier is xGEL Data Systems.

  19. Controlling Law and Severability. This Agreement shall be deemed to be made within the State of Texas, is performable in whole or in part within the State of Texas, and shall be governed by and construed in accordance with the laws of the United States and the State of Texas, the same as if it were an agreement physically executed and performed entirely within the State of Texas. Licensee expressly waives any and all arguments for a right to apply the law of any other state or jurisdiction, whether such argument is based on application of the choice of law rules or principles of Texas or any other jurisdiction. Venue in any dispute shall be in the federal or state courts of competent jurisdiction seated in Bexar County, Texas. If for any reason a court of competent jurisdiction finds any provision of this Agreement or a portion thereof, to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.

  20. Complete Agreement. This Agreement constitutes the entire agreement between the parties with respect to the use of the Software Product, and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Except as provided for in the section below (Unilateral Modification of Agreement by Licensor), no amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of Licensor.

  21. Unilateral Modification by Licensor. Each use of the Software Product is a separate acceptance of the contract offer to utilize the software under the then current license terms, and Licensor may, in its sole discretion, modify portions of this Agreement, including the fee schedule for your use of the software, at any time. Licensor may notify you of any changes by posting notice on Licensor’s web site(s) that modifications have been made, or by sending notice via e-mail, postal mail, or giving notice by other means, including incorporation of modified license terms in new installation package(s), and you agree that any of these ways constitutes sufficient notice. Your continued use of the Software Product following Licensor's sending of notice of modifications of this Agreement or the License Fee amounts/structure shall be deemed to be your acceptance of those modifications to the Agreement and/or License Fee amounts/structure and each use shall constitute a separate acceptance of the Licensor’s offer to make use of the software. If you do not agree to any of the modifications, you must immediately stop using the Software Product and destroy all copies of the Software Product in your possession or control.

    Although each use by the Licensee of the Software Product may be considered acceptance of a separate unilateral offer (and thus a separate contract), the limitations of Licensor’s liability under paragraph 7 hereof shall be the aggregate liability for all uses and LICENSOR’S TOTAL LIABILITY TO YOU FOR DAMAGES AND/OR LOSSES (INCLUDING ATTORNEY FEES AND COURT COSTS), SHALL NOT EXCEED THE AMOUNT OF $500 (FIVE HUNDRED DOLLARS). THIS LIMIT APPLIES IN THE AGGREGATE REGARDLESS OF WHETHER THE DAMAGES AND/OR LOSSES OCCURRED OR ARE ALLEGED TO HAVE OCCURRED BECAUSE OF A SINGLE USE OR MULTIPLE USES OR ATTEMPTS TO USE, THE SOFTWARE PRODUCT, AND/OR BECAUSE OF ONE OR MULTIPLE FAILURES OR ALLEGED FAILURES OF THE SOFTWARE PRODUCT TO FUNCTION PROPERLY OR TO FUNCTION TO YOUR EXPECTATIONS (WHETHER OR NOT THOSE EXPECTATIONS ARE “REASONABLE”) AND WHETHER OR NOT USES, ATTEMPTS TO USE, OR ALLEGED FAILURES ARE ALLEGED OR DETERMINED TO HAVE BEEN RELATED TO ONE OR SEPARATE MULTIPLE CONTRACTS BETWEEN LICENSOR AND LICENSEE.

  22. No Waiver. Licensor shall have no obligation to inform Licensee of a default under the terms of this agreement, or to give Licensee any grace period within which to cure a default, or to accept a cure of a particular Licensee default. Licensor’s intentional or unintentional failure to exercise its remedies upon Licensee’s default (whether the default is known or not known to Licensor) shall not constitute a waiver of the particular default or any other default in Licensee’s performance, and shall not constitute a waiver of any similar or other default in the future. If Licensor shall intentionally or unintentionally fail for a continuing period of time to exercise its remedies for one or more defaults of similar nature, such failure shall not be deemed a course of dealing between the parties which modifies this agreement or waives any such defaults or any future defaults. Licensor may, at any time, exercise its remedies for a prior default without limitation to the time between the actual event of default and Licensor’s exercise of its remedies.

  23. Survivability. In the event of Termination of the License Grant of this Agreement, all other provisions of this agreement shall survive.

  24. Joint Drafting/Free Agency. This agreement shall be construed as a jointly drafted agreement and is entered into with full understanding of the parties that there are known and unknown benefits and risks associated with the use of the xGEL Data Systems Service and software; that there will be outcomes that may constitute benefit or loss to one or both parties; and that whether those benefits and risks are reasonable or unreasonable, or expected or unexpected, that this agreement shall govern the duties and responsibilities of the parties and each party will bear their respective benefit/risk outcomes associated with use of the software.