Terms and Conditions
These Terms and Conditions (“Terms”) govern all access to, and use of, the Xima Services set forth in one or more orders referencing these Terms (each an “Order”) and are entered into by and between the entity listed in the applicable Order (“Customer”) and Xima, LLC, d/b/a “Xima Software” with offices at 10610 S. Jordan Gateway, Ste. 300, South Jordan, UT 84095, USA (“Xima”). These Terms form the parties’ entire agreement regarding any access to or use of the Xima Services set forth in Orders (the “Agreement”). The Agreement is effective as of the earlier of the date Customer accepts these Terms (e.g., by clicking “I agree”) or accepts any Order referencing these Terms (the “Effective Date”).
By entering into an Order referencing these Terms or by clicking “I agree” to these Terms or any Order referencing these Terms, Customer agrees to be bound by the terms of the Agreement. If you are entering into this Agreement on behalf of an organization or entity, by clicking “I agree” or by otherwise accepting this Agreement or an Order referencing this Agreement, you represent and warrant that you have authority to bind that organization or entity to this Agreement. If you do not have such authority or you do not agree to the terms of this Agreement, do not click “I agree” and do not otherwise accept this Agreement or any such Order.
Xima has developed and offers a cloud-based Contact Center as a Service platform (the “Platform”) comprised of discrete licensable modules (each a “Module”). Customer wishes to obtain the right to access and use some or all Platform Modules. Customer has entered into an online order, online registration, or other ordering document (each, an “Order”) with Xima or a Xima-approved reseller (“Reseller”) setting forth the type of access to the Platform, Modules, APIs, Platform Content, and any other Xima products, services, or offerings that Customer will receive pursuant to this Agreement (collectively, “Services”). This Agreement sets forth the terms and conditions under which Xima is willing to provide Customer the Services as set forth in each applicable Order.
In consideration of the foregoing, and in reliance on the mutual agreements contained herein, the parties agree as follows:
Terms and Conditions
1.
Definitions. All capitalized terms used in this Agreement will have the meanings given to them herein. All other terms used in this Agreement will have their plain English (U.S.) meaning.
2.
Term. This Agreement will begin on the Effective Date and will continue in effect until terminated as set forth herein. The term of each Order will begin as specified in the Order and will continue for the initial term stated in the Order (the “Initial Term”). Except as otherwise specified in an applicable Order, subscriptions pursuant to an Order will automatically renew for additional periods equal to the expiring subscription period or one (1) year (whichever is shorter) (each a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party gives the other notice of non-renewal at least 60 days before the end of the relevant Term (e.g., the Initial Term or then-current Renewal Term). Upon any expiration or termination of this Agreement, the Term of any Order then in effect will end.
3.
Orders. Xima will perform all Services under this Agreement as set forth in Orders referencing this Agreement. All Orders will be as agreed to by the parties thereof (i.e., Customer and Xima or Customer and a Reseller). Each Order entered into by Customer and Xima will become a part of this Agreement. Each Order entered into by Customer and a Reseller will form a separate agreement between Customer and the applicable Reseller and Xima will have no responsibility or liability with respect to such Order; provided that Xima will be responsible for performing its obligations under these Terms, which form a binding Agreement between Xima and Customer with respect to the Services set forth in Customer’s Order with the Reseller. All access to and use of the Services shall be subject to the terms and conditions of this Agreement irrespective of whether Customer enters into an Order providing such access and use with Xima or a Reseller. In the event of a conflict between the terms of an Order and these Terms, these Terms will control.
4.
SERVICES
4.1
Platform Access. Subject to Customer’s compliance with this Agreement, including payment of all Fees and compliance with all restrictions set forth in the Order, during the Term, Xima will provide Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Platform Modules, and any other Platform functionality and tools, set forth in an Order solely for Customer’s own internal business purposes.
4.2
Authorized User Accounts. Customer may permit its employees, agents, contractors, or representatives (“Authorized Users”) to use the Services subject to Customer’s payment of the Fees and compliance with the restrictions set forth in the Order. Authorized Users may be required to establish an account on the Platform (an “Account”) prior to accessing the Services. The identification and password associated with each Authorized User’s Account (the “Account ID”) is personal in nature and may only be used by the Authorized User associated with that Account, provided that each Account ID may be transferred from one individual to another if the original Authorized User is no longer permitted to use the Services. Except for the foregoing, Customer will not, and shall ensure that each Authorized User does not, distribute or transfer any Account or Account ID or provide any third party the right to access or use any Account or Account ID. Customer is solely responsible for all use of the Services by each Authorized User and for compliance by each Authorized User with the applicable terms of this Agreement and any other agreement to which the Authorized User agrees in connection with the Platform. Customer will ensure that all information about each Authorized User provided to Xima is and remains accurate and complete and that all Account IDs are kept secure and confidential. Customer will notify Xima immediately if any Account ID is lost, stolen, or otherwise compromised.
4.3
APIs. If an Order provides for access to one or more application programming interfaces (each, an “API”), then, subject to Customer’s compliance with this Agreement, including payment of all Fees and compliance with all restrictions set forth in the Order, during the Term, Xima will provide Customer a limited, non-exclusive, non-transferrable, non-sublicensable right to access and use each such API solely to connect to approved software applications that are controlled and owned or licensed by Customer in order to facilitate the exchange of Customer Content between the Platform and such applications.
4.4
Unified Communications. If an Order provides for Xima’s UC Service, the terms of the Unified Communications Addendum, available at https://ximasoftware.com/unified-communications-addendum-jul1123/ (“UCA”) apply. The UCA is hereby incorporated into this Agreement by reference. “UC Service” means the cloud-delivered communication services (e.g., voice service, fax, conference service, telephony) offered by Xima.
4.5
Platform Content. Subject to Customer’s compliance with this Agreement, during the Term, Xima grants Customer a non-exclusive right to access and use any data, information, reports, or other materials or content (“Content”), including all text, audio, video, photographs, illustrations, graphics, and other content or media, provided by or on behalf of Xima through the Platform or other Technology (“Platform Content”). All Platform Content is for Customer’s informational purposes only and Customer is solely responsible for verifying the accuracy, completeness, and applicability of all Platform Content prior to using or relying upon any Platform Content. Platform Content as made available to Customer through the Platform or Technology is solely for Customer’s internal business purposes in connection with Customer’s permitted use of the Services under this Agreement. All rights and restrictions in this Agreement applicable to any Platform Content apply to all Content and other elements comprising Platform Content, including any enhancements, corrections, or other updates provided by or on behalf of Xima from time to time. Xima has not verified the accuracy of, and will not be responsible for any errors or omissions in, any Platform Content.
4.6
Support, Maintenance, and Consulting Services. Xima will provide support, maintenance, and other consulting services, such as implementation, configuration, custom development, and training relating to the Services solely as specified in Orders under this Agreement or under a separate written agreement between the parties. Except as may be specified in an Order, or such a separate agreement, Xima is under no obligation to provide Customer with support, maintenance, or other consulting services relating to the Services. Notwithstanding the foregoing, should Xima provide Customer with any support, maintenance, or other consulting services, any such support, maintenance, or other consulting services will be subject to the terms specified in the Order and Xima’s then-current terms for support, maintenance, or consulting services, as applicable.
4.7
Third Party Offerings.
(a) Xima may provide Customer and its Authorized Users the option to access certain functionality, products, services, and other offerings provided by third party providers (“Third Party Offerings”) subject to additional terms, conditions, or agreements Customer enters in connection with the Third Party Offering (each, a “Third Party Agreement”). Each Third Party Agreement forms a separate and direct agreement between Customer and the provider of the applicable Third Party Offering and exclusively governs Customer’s use of the applicable Third Party Offering. The terms of any Third Party Agreement (which may include payment of additional fees) will apply to the applicable Third Party Offerings provided under that Third Party Agreement but will not otherwise apply to Customer’s access to or use of the Platform. Customer warrants that it will comply with the terms of each applicable Third Party Agreement at all times. Except as set forth in this Agreement, in the event of a conflict between the terms of this Agreement and a Third Party Agreement, the terms of the Third Party Agreement will control with respect to Customer’s access to and use of any Third Party Offering provided under that Third Party Agreement. This Agreement will continue to control in all other respects.
(b) All Third Party Offerings are provided by third parties and Xima does not control any Third Party Offering. Xima is not responsible or liable for any access to or use of any Third Party Offering, including any damages, losses, liabilities, failures, or problems caused by, related to, or arising from any Third Party Offering. Any exchange of data or other interaction between Customer and a provider of Third Party Offerings, including any purchase or acquisition by Customer of any Third Party Offerings, is solely between Customer and such third party provider. In addition, Customer agrees that Xima is not responsible for any and all information or data that Customer may transmit, process, or transfer to or from such third party through the Platform after such information or data leaves the Platform. Xima cannot guarantee the continued availability of any Third Party Offerings and, may block access provided by the Platform to any Third Party Offering without entitling Customer to any refund, credit, or other compensation, if for example the provider of Third Party Offering ceases to provision the Third Party Offering at a level or in a manner acceptable to Xima. Xima and the providers of Third Party Offerings wish Customer to be fully satisfied with the Services and Third Party Offerings and may contact Customer from time to time to survey Customer’s overall satisfaction with Xima, the Services, and the Third Party Offerings. Customer consents to being contacted by Xima and any provider of a Third Party Offering.
(c) Xima’s workforce optimization and engagement offering (“Workforce Optimization Solutions”) is a Third Party Offering powered by Dura DVS, LLC d/b/a DVSAnalytics (“DVSAnalytics”). All use of and access to the Workforce Optimization Solutions is subject to the applicable terms and conditions of this Agreement and the DVSAnalytics Terms of Use, available at: https://dvsanalytics.com/terms-of-use/ (the “DVSA Terms”). The DVSA Terms form a separate, and direct agreement between Customer and DVSAnalytics, and exclusively govern Customer’s use of the Workforce Optimization Solutions, including, but not limited to, any processing of personal data performed by DVSAnalytics, which as between Customer and DVSAnalytics, shall be governed solely by the DVSA Terms. For the avoidance of any doubt, Xima is not a party to the DVSA Terms and Xima does not have any data privacy obligations to Customer with respect to any personal data Customer provides, directly or indirectly, to DVSAnalytics. Xima expressly disclaims any liability for any claim or controversy arising out of the DVSA Terms and/or any breach thereof, or other acts or omissions by DVSAnalytics. In the event of a conflict between the DVSA Terms and the terms and conditions of this Agreement, the DVSA Terms shall control and prevail with respect to the Workforce Optimization Solutions only and these Terms shall control in all other respects.
5.
Restrictions. The Services, including the Platform, all Modules, and all Platform Content, APIs, server integrations, and all software, hardware, data, databases, information, and all other technology comprising the foregoing or used by or on behalf of Xima to provide the foregoing, and any updates, upgrades, new versions, modifications, or enhancements to any of the foregoing (collectively, the “Technology”), constitute the valuable intellectual property of Xima and its licensors. As an express condition to the rights granted to Customer under this Agreement, Customer will not and will not permit any Authorized User or other employee, contractor, or third party to: (1) use or access the Technology or any portion thereof for any purpose except as expressly provided in this Agreement and an applicable Order; (2) modify, adapt, alter, translate, or create derivative works from the Technology; (3) distribute, lend, loan, lease, license, sublicense, transfer, or make available the Technology, or any rights in or to the Technology to any third party; (4) access or use the Technology in any unlawful, illegal, or unauthorized manner; (5) access or use the Technology in any manner that could damage, disable, overburden, or impair the Technology; (6) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, design, or method of operation for the Technology; (7) circumvent or overcome (or attempt to circumvent or overcome) any technological protection measures intended to restrict access to the Technology; (8) interfere in any manner with the operation of the Technology or attempt to gain unauthorized access to the Technology; (9) use the APIs to access or interface with any products, systems, applications, software, or hardware other than the Modules described in the applicable Order; (10) access or use the Technology or any component thereof in order to build a competitive product or service; (11) develop any software or other technology for accessing or using the Technology in a way other than as permitted in this Agreement; (12) use automated scripts or processes to collect information from or otherwise interact with the Technology; or (13) alter, obscure, or remove any copyright notice, copyright management information, or proprietary legend contained in or on any Technology. All use of the Technology will be solely in accordance with this Agreement, any applicable technical and functional documentation Xima provides in connection with the Services, and any instructions provided by or on behalf of Xima. Xima may monitor use of or access to the Technology to verify compliance with the terms of this Agreement.
6.
Modifications. Xima reserves the right, at any time, to update or modify the Technology or any portion thereof (including the Platform, APIs, and Platform Content) and will use commercially reasonable efforts to notify Customer 30 days in advance of any such update or modification; provided that no such update or modification will result in a material decrease in the functionality of the applicable Technology. Xima will provide Customer with any updates or modifications that Xima makes commercially available, however, Xima reserves the right to charge additional fees for new features or functionality of the Technology (e.g., new APIs or Modules).
7.
Ownership and Rights
7.1
Technology. As between Xima and Customer, Xima owns and retains all right, title, and interest, including all IPR, in and to the Technology, any updates, upgrades, enhancements, modifications, and improvements (“Improvements”) thereto, whether created by Xima acting alone or jointly with Customer or any third party, and any other materials provided or developed by Xima or its providers in the course of performance under this Agreement. For purposes of this Agreement, “IPR” means all intellectual property and proprietary rights throughout the world, including all copyrights, trademarks, trade secrets, patents (and patent applications), moral rights, rights in data and databases, contract rights, other legal rights protecting data or information, and other intellectual property and proprietary rights. Customer receives no ownership interest in or to any of the foregoing. Except as expressly stated in Section 4, or the applicable Order, Xima grants Customer no rights or licenses in or to the Technology, whether by implication, estoppel, or otherwise. Customer covenants, on behalf of itself and its successors and assigns, not to assert against Xima any rights, or any claims of any rights, in the Technology.
7.2
Customer Content. “Customer Content” means all Content that Customer or its Authorized Users upload, provide, or otherwise make available to or through the use of the Services, and all analyses or results based upon the foregoing to the extent Customer’s analyses or results do not include Platform Content or are not based upon Platform Content. As between Customer and Xima, Customer retains all right, title, and interest, including all IPR, in and to Customer Content and is solely responsible for Customer Content. Customer grants Xima a non-exclusive royalty-free, fully paid, worldwide license to utilize all Customer Content as necessary to provide the Services and to otherwise perform its obligations and exercise its rights under this Agreement. Customer commits to Xima that neither Customer Content nor Xima’s use of Customer Content will: (a) violate this Agreement or any Laws; (b) be libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (c) constitute an infringement or misappropriation of the IPR or other rights of any third party; (d) be illegal in any way or advocate illegal activity; (e) be false, misleading, or inaccurate; (f) be an advertisement or solicitation of any kind; or (g) be considered junk mail, spam, a part of a pyramid scheme, a disruptive commercial message, or disruptive advertisement. Xima may take remedial action if any Customer Content violates this Agreement, provided that Xima is under no obligation to review any Customer Content (for potential liability or otherwise). Xima is not a storage provider and encourages its customers to practice data minimization. If the quantity of Customer Content stored on the Platform materially exceeds the quantity of content stored by the average Xima customer, Xima will notify Customer of the excess usage and Xima and Customer shall agree upon either (a) a reasonable storage fee or (b) to remove certain Customer Content from the Platform. If Xima and Customer are unable to agree upon a storage fee or to remove Customer Content from the Platform, Xima may remove legacy Customer Content from the Platform in its reasonable discretion.
7.3
Analyses and Learning. Notwithstanding anything to the contrary set forth herein, Customer authorizes Xima to collect and use Customer Content to create aggregated or de-identified data that does not identify Customer (or any Authorized User) or include any personal data (“Aggregated Data”), and to use Aggregated Data for Xima’s lawful business purposes, including combining Aggregated Data with similar data from other Xima customers and third parties, providing services to customers, product improvement (in particular, product or service features and functionality, workflows, and user interfaces), development of new products and services, improving resource allocation and support, internal demand planning, training and developing machine learning algorithms, verification of security and data integrity, identification of industry trends and developments, creation of indices, and benchmarking.
7.4
Feedback. If either party provides any general suggestions, ideas, or other feedback about the other party or the other party’s products, services, or offerings (“Feedback”), the other party may use and otherwise act on such Feedback with no financial, credit, confidentiality, or other obligation to such party, but is not obligated to use any such Feedback in any way.
7.5
Customer Logo Usage. By agreeing to these Terms, the Customer grants Xima a non-exclusive license to use the Customer’s name and logo solely for marketing, promotional, and sales purposes, including on the Provider’s website, presentations, and promotional materials. Provider agrees to use the logo in accordance with any brand guidelines provided by the Customer and will cease use upon written request.
8.
FEES AND PAYMENTS
8.1
Fees. Customer will pay the fees specified in each Order (“Fees”) as and when due. Unless otherwise specified in an applicable Order, all Fees are due and payable by Customer in advance within 30 days of the date of the applicable invoice. The Services are sold on a monthly or annual subscription basis. The per unit pricing during any Renewal Term will increase by up to 7% above the applicable pricing in the then-prior Term, unless otherwise set forth in the applicable Order or unless Xima provides Customer notice of different pricing at least 60 days prior to the applicable Renewal Term. Except as expressly provided in the applicable Order, renewal of promotional or one-time priced subscriptions will be at Xima’s applicable list price in effect at the time of the applicable renewal, if higher. Customer may not withhold, reduce, or offset Fees owed to Xima under this Agreement against any amounts due to Customer. Customer may not reduce the Fees payable under an Order or any Committed Quantity or Usage Limit or other limitations set forth in an Order during the Term. All Fees are non-refundable. Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under Law. If Xima requires use of collection agencies, attorneys, or courts of law for collection of Customer’s account, Customer will be responsible for those expenses. Customer agrees to pay any taxes and other fees and charges imposed by any government entity on the Services or otherwise arising from this Agreement, excluding taxes based on Xima’s net income and payroll taxes. Customer must provide to Xima any direct pay permits or valid tax-exempt certificates prior to signing each applicable Order. If Xima is required to pay taxes (other than its income and payroll taxes), Customer will reimburse Xima for those amounts and indemnify Xima for any taxes and related costs paid or payable by Xima attributable to those taxes.
8.2
High-Water Mark. Fees for each Initial Term and any Renewal Term will be calculated based on the maximum number of Authorized Users at any time during the applicable term (the “High-Water Mark” for that term). For purposes of calculating the High-Water Mark, for illustrative purposes only: if the Initial Term is 1 year and there are 20 Authorized Users at the beginning of the first month, and then during that month 5 Authorized Users are added and 2 are later deleted (regardless of what month), then the High-Water Mark of Authorized Users would be 25 Authorized Users, and the Fees for such month, and each subsequent month for the Initial Term, would be based on 25 Authorized Users, unless and until more Authorized Users are added, which would result in a new High-Water Mark going forward. Unless Customer enters into a new Order, the High-Water Mark from the preceding term will apply to the next Renewal Term.
8.3
Committed Period Subscriptions. If the applicable Order shows that Customer will pay for a committed period, such as a set number of months or years, all Fees will be invoiced in advance at the billing frequency specified in the Order based on the number of Authorized Users specified in the Order (the “Committed Quantity”). If the High-Water Mark exceeds the Committed Quantity in any month, Xima may invoice, and Customer will pay, the difference between the Committed Quantity and the High-Water Mark, based on the price per Authorized User set forth in the applicable Order, for each such month.
8.4
Overage. Customer’s subscription Fees for the applicable Term will be as set forth in the applicable Order, based on the applicable data and usage limits set forth therein (“Usage Limit”). In the event Customer exceeds its Usage Limit in any month during the applicable Term, Xima will notify and invoice Customer and Customer will pay to Xima the additional Fees due for the excess usage, based on the excess usage pricing set forth in the applicable Order, for each such month, unless otherwise agreed upon by the parties.
8.5
Reseller Orders. In the event Customer obtains the rights to access and use the Services from a Reseller, the applicable billing, payment, ordering, and delivery terms will be agreed upon between Customer and the applicable Reseller and the terms of this Section 8 shall not apply to such Order.
9.
WARRANTIES; DISCLAIMERS.
9.1
Mutual. Each party represents, warrants, and covenants to the other party that: (a) it has full right, power, and authority to enter into this Agreement and to perform its obligations and duties under this Agreement; (b) this Agreement will be enforceable against it; and (c) the performance of its obligations under this Agreement will not violate any applicable federal, state, or local laws, rules, or regulations (“Laws”), any rights of any third party, or any agreement by which such party is bound.
9.2
Services. During the term of this Agreement, Xima will use commercially reasonable efforts to provide the Services under each applicable Order. As Customer’s sole remedy, and Xima’s sole obligation, for any failure by Xima to comply with the foregoing sentence, Xima will at its option: (a) correct, re-perform, or re-provide the applicable Services; or (b) refund the portion of any Fees actually paid by Customer for the applicable Services.
9.3
Customer Content. Customer represents, warrants, and covenants to Xima that Customer (a) has collected all Customer Content in accordance with all Laws, (b) has all rights, permissions, consents, and licenses necessary to allow Xima to use and process all Customer Content as set forth in this Agreement, and (c) will maintain such rights, permissions, consents, and licenses throughout the term of this Agreement and any period of surviving obligations thereafter.
9.4
Acknowledgements. Customer acknowledges and agrees that (a) Customer’s use of the Services does not ensure that Customer will be in compliance with the Laws of any jurisdiction; and (b) Xima has made no representations, warranties, or assurances with respect to the Services’ compliance with any such Laws. Xima shall have no obligation or liability in connection with Customer’s legal obligations and Xima hereby disclaims all liability with respect thereto. Customer further agrees and acknowledges that (i) Xima is not, in any manner, providing legal services or legal advice to Customer; (ii) Xima is not an advisor as to tax, financial, business, accounting or regulatory matters in any jurisdiction; and (iii) Customer is solely responsible for its compliance with Laws. None of the advice, guidance, or any Services provided by Xima will be deemed legal, tax, financial, or business advice. Customer is solely responsible for consulting with its legal counsel to ensure that Customer complies with all Laws generally, and that Customer’s use of the Services, and Customer’s collection, use, and provision of Customer Content, complies with Laws.
9.5
Disclaimer. THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES MADE BY EACH PARTY UNDER THIS AGREEMENT. XIMA SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES, TECHNOLOGY, AND ANY OF ITS OBLIGATIONS HEREUNDER, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, ALL PLATFORM CONTENT AND OTHER TECHNOLOGY ARE PROVIDED BY XIMA AND ITS LICENSORS ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES, OR COVENANTS OF ANY KIND.
10.
INDEMNIFICATION.
10.1
By Customer. Customer will defend, indemnify, and hold harmless Xima, its affiliates, subsidiaries, and licensors, and each of their respective officers, directors, shareholders, employees, contractors, agents, and representatives, from and against all claims, allegations, actions, or suits brought by any third party (“Claims”), and any loss, liability, cost, judgment, award, settlement, penalty, damage, fine, expense, or fee (including attorneys’ fees and costs of collection) (“Liabilities”) arising directly from any such Claims, arising out of or relating to: (a) any Customer Content or any access to or use of any Customer Content; (b) Customer’s use of or access to the Technology in violation of Section 5, except to the extent subject to indemnification by Xima under Section 10.2; or (c) Customer’s violation of Law or infringement, misappropriation, or violation of any IPR or other right of, or obligation to, any third party.
10.2
By Xima. Xima will defend, indemnify, and hold harmless Customer, its affiliates, subsidiaries, and licensors, and each of their respective officers, directors, shareholders, employees, contractors, agents, and representatives, from and against all Claims, and any Liabilities arising directly from any such Claims, alleging that the Services, when used as permitted under this Agreement, infringe, misappropriate, or violate any IPR of such third party. Should any such Claim be made, or in Xima’s reasonable opinion be likely to be made, in addition to Xima’s indemnification obligations under this Section, Xima may, at its option and expense: (a) procure for Customer the right to continue using the Services; (b) replace or modify the applicable portion of the Services so as to no longer infringe; or (c) terminate the applicable Order or this Agreement. Xima’s obligation under this Section will not extend to, and Xima shall have no liability under this Section for, any Claim based on, arising out of, or relating to any: (i) any Customer Content; (ii) any specifications or instructions provided by Customer; (iii) additions, changes, or modifications to the Technology, unless provided by Xima; (iv) products, services, or other offerings not provided by Xima under this Agreement; or (v) systems, networks, databases, hardware, and software provided under any open source license or any other license or agreement other than this Agreement. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND XIMA’S ENTIRE LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION CLAIMS RELATING TO THIS AGREEMENT AND THE TECHNOLOGY.
10.3
Procedure. Each party’s obligations under this Section are subject in each instance to the indemnified party (a) promptly notifying the indemnifying party of the Claim or Liability; (b) giving the indemnifying party sole control of the defense and settlement of the Claim (provided that the indemnified party will have the right to approve any material liability imposed on and borne by the indemnified party in connection with such settlement); and (c) providing to the indemnifying party all reasonably available information and reasonable assistance, at the expense of the indemnifying party.
11.
Limitation of Liability. in no event will EITHER PARTY be liable for any consequential, indirect, EXEmplary, special, or incidental damages, OR FOR any lost data, lost profits, OR costs of procurement of substitute goods or services, arising from or relating to this Agreement, however caused and under any theory of liability (including negligence), even if SUCH PARTY has been advised of the possibility of such damages. EACH PARTY’s total cumulative liability in connection with this Agreement, whether in contract or tort or otherwise, will not exceed the amount OF FEES PAID OR OWED BY Customer TO xima or an applicable reseller FOR THE SERVICES THAT CAUSED THE DAMAGES IN THE 12-MONTH PERIOD PRECEDING THE LIABILITY. THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION WILL NOT APPLY AS TO ANY DAMAGES OR OTHER LIABILITY BASED ON OR RESULTING FROM: (1) A PARTY’S OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION); (2) A PARTY’S BREACH OF SECTION 5 (RESTRICTIONS); (3) A PARTY’S INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF THE OTHER PARTY’S IPR; (4) THE BAD FAITH OR WILLFUL MISCONDUCT OF A PARTY; OR (5) A PARTY’S PAYMENT OBLIGATIONS. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF XIMA WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. IN STATES WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, EACH PARTY’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
12.
TERMINATION AND EFFECT.
12.1
Termination.
(a) This Agreement may be terminated by either party upon 30 days’ written notice to the other party at any time there is no then-current Order in effect under this Agreement.
(b) This Agreement and any Order may be terminated by either party if the other party materially breaches any provision of this Agreement or such Order and fails to cure such breach within 30 days after receiving notice thereof from the non-breaching party or such longer cure period (not to exceed 90 days) as reasonably necessary to cure such breach, provided that the breaching party is diligently working to cure such breach throughout the cure period.
(c) This Agreement (including all Orders) may be terminated at any time if the other party: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
12.2
Effect of Termination. Termination of this Agreement will automatically terminate any Order for Services covered by this Agreement. Termination or expiration of this Agreement will not relieve either party of any rights or obligations accruing prior to such termination or expiration. Upon any termination or expiration of this Agreement or any Order: (a) all Fees and any expenses owed to Xima under this Agreement before such termination or expiration will be immediately due and payable; (b) Xima may cease providing all access to the Services; (c) all rights and licenses granted to Customer with respect to such Services will immediately terminate and Customer will cease all access thereto and use thereof; and (d) except as may be expressly permitted under this Agreement, including Section 12.3, each party will permanently destroy any Confidential Information of the other party in such party’s possession or control, including any Platform Content (with respect to Xima’s Confidential Information) and Customer Content (with respect to Customer’s Confidential Information). At the request of the other party, each party will certify in writing to its compliance with this Section 12.2.
12.3
Removal of Customer Content. The Platform includes functionality allowing Customer to delete, or export and retrieve in an industry standard format, its Customer Content from the Platform; provided that export and retrieval may be subject to technical limitations, in which case Xima and Customer will determine a reasonable method to facilitate Customer’s access to Customer Content. Provided Xima has not terminated this Agreement under Section 12.1(b), Customer may access and use such functionality during the term of this Agreement and for 30 days following any termination or expiration of this Agreement. Xima will delete Customer Content (a) automatically, when deletion features within the Platform are utilized by Customer, and (b) in any event in accordance with Xima’s standard procedures.
12.4
Survival. The following Sections will survive any termination or expiration of this Agreement for any reason: 1, 5, 7, 10, 11, 12, 14, 16, 18, 19, and 21.
13.
Suspension. Without limiting Xima’s right to terminate this Agreement or any Order, Xima may immediately suspend Customer’s access to the Services: (1) where Customer is past due on any payment obligation hereunder and fails to pay all amounts owed within 10 days after receiving notice thereof from Xima; or (2) where Xima reasonably believes that Customer’s use of the Services may be in violation of this Agreement or any Laws or present a risk of harm, loss, or liability to Xima or any other customer or third party. In such cases, without limiting its obligations under subpart ‘(1)’ of the preceding sentence, Xima will use commercially reasonable efforts to (a) limit the extent and duration of any suspension, (b) notify Customer of any suspension (in advance if possible), and (c) reinstate any suspended Services as soon as possible. If Customer’s access to the Services is suspended due to non-payment as set forth in subpart ‘(1)’ of this Section, then before Xima reinstates any such suspended access to the Services, Customer shall pay Xima all amounts owed to Xima hereunder up through the effective date of any such reinstatement.
14.
Confidentiality. Each party (“Recipient”) may receive Confidential Information from the other party (“Discloser”) during the term of this Agreement. Each Recipient agrees to protect from disclosure such Confidential Information with the same degree of care that it affords its own confidential information, but in no event with less than reasonable care, and to only use Discloser’s Confidential Information as is necessary to perform its obligations and exercise its rights under this Agreement. For purposes of this Agreement, “Confidential Information” means all information regarding a party’s business or affairs, including customer information, marketing information, financial information, data (including software code), business concepts, business strategy, processes, methods, systems, know-how, devices, formulas, product specifications, marketing methods, prices, and customer lists, whether in oral, written, or electronic form, that is either: (1) designated as confidential; (2) of a nature such that a reasonable person would recognize it as confidential; or (3) disclosed under circumstances such that a reasonable person would know it is confidential. The terms and conditions of this Agreement shall constitute the Confidential Information of each of the parties. The following information will not be considered Confidential Information: (a) information that is publicly available through no fault of the party that was obligated to keep it confidential; (b) information that was known by a party prior to commencement of discussions regarding the subject matter of this Agreement; (c) information that was independently developed by a party; and (d) information rightfully disclosed to a party by a third party without continuing restrictions on its use or disclosure. Each Recipient may disclose Discloser’s Confidential Information: (i) to the extent necessary to comply with an order or requirement of a judicial or administrative process, provided that Recipient promptly notifies Discloser and allows Discloser sufficient time to oppose such disclosure; and (ii) to its affiliates in connection with its corporate and financial reporting requirements. Except as set forth in Section 12.3, upon Discloser’s written request, Recipient will promptly destroy, all Confidential Information of Discloser in Recipient’s possession or control and permanently erase all electronic copies of such Confidential Information. Recipient’s obligations under this Section shall continue for 3 years after the termination or expiration of this Agreement, except such obligations will survive with respect to trade secrets for so long as any such Confidential Information remains a trade secret under any Laws.
15.
Data Privacy and Security. Each party will comply with the Data Processing Addendum available at https://ximasoftware.com/data-processing-addendum-jun2423/ (“DPA”). The DPA is hereby incorporated into this Agreement by reference.
16.
Notice. All notices, consents, authorizations, and approvals to be given by a party hereunder will be in writing and will be delivered to the applicable party either via: (1) hand-delivery; (2) reputable overnight mail service; (3) certified mail, return receipt requested, to the other party; (4) by electronic mail transmission, provided that receipt of such electronic mail is confirmed by the recipient; or (5) in the case of any notice or communication applicable both to Customer and other users of the Platform, Xima may provide such notice or communication by posting it on the Platform. All notices will be effective upon confirmation or acknowledgment of receipt (or when delivery is refused), except notice by electronic mail which will be effective only after receipt of the electronic mail is actually confirmed by the recipient. Unless otherwise specified, Xima shall provide notice to Customer at the address set forth in the most recent Order and Customer shall provide notice to Xima at the address set forth above, with a copy to legal@ximasoftware.com. Either party may change its address for notice by giving notice of the new address to the other party.
17.
Force Majeure. Except for payment of Fees, neither party will be liable for any delay or failure in performance to the extent resulting from a breach, failure, or delay of the other party or any third party or from any other cause beyond such party’s reasonable control, including any act of God, act of civil or military authorities, act of terrorists, civil disturbance, war, strike or other labor dispute, fire, interruption in telecommunications or network services, epidemic or medical emergency, failure of equipment or software, provided that such party takes reasonable steps to minimize the extent and duration of any such failure in performance (each, a “Force Majeure Event”). In the event of a Force Majeure Event, the period for performance hereunder will be extended by the length of the Force Majeure Event (or by such other length of time as is reasonably required).
18.
DISPUTES
18.1
Agreement to Arbitrate. Except as otherwise provided in Section 18.2, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach, or termination of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”) through discussion between the parties. Except as otherwise provided in Section 18.2, if any Dispute cannot be resolved through negotiations between the parties within 30 days of notice from one party to the other of the Dispute, either party may submit such Dispute to JAMS for final settlement through binding arbitration under the JAMS Streamlined Arbitration Rules and Procedures then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator, selected as provided in the Rules. The arbitration will be conducted in the English language at a site specified by Xima in Salt Lake City, Utah, U.S.A. The arbitrator will apply the law set forth in Section 18.3 to any such arbitration and shall have the power to award any remedy available at law or in equity; provided, however, that the arbitrator shall have no jurisdiction to amend this Agreement or grant any relief not permitted herein or beyond the relief permitted herein. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues, or accountings presented or plead to the arbitrator. The award of the arbitrator will require the non-prevailing party to pay the prevailing party’s costs, fees, and expenses (including attorneys’ fees). Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees, or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
18.2
Irreparable Harm. Each party acknowledges and agrees that the other party will be irreparably harmed in the event that such party breaches Section 5 or Section 14 and that monetary damages alone cannot fully compensate the non-breaching party for such harm. Accordingly, each party hereby agrees that the non-breaching party shall be entitled to seek emergency, preliminary, or other appropriate interim relief in the state or federal courts located in Salt Lake City, Utah to prevent or stop breaches of such provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof, without the requirement of posting any bond.
18.3
Governing Law and Venue. The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations, or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of Utah (U.S.A.) as such laws apply to contracts between Utah residents performed entirely within Utah, without regard to the conflict of laws provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement, and the parties hereby disclaim the application thereof. Subject to Section 18.1, each party will bring any action or proceeding arising from or relating to this Agreement exclusively in a state or federal court in Salt Lake City, Utah (U.S.A.), and each party irrevocably submits to the personal jurisdiction and venue of any such court in any such action or proceeding brought in such courts by the other party.
19.
Export. Customer will comply with all export and import control laws, rules, and regulations applicable to the access to and use of the Technology. Customer will obtain all licenses, permits, and approvals required by the U.S. government or any other government and under any Laws. Customer will not export or re-export any Technology without all such required licenses, permits, and approvals. Customer will defend, indemnify, and hold harmless Xima from and against all fines, penalties, liabilities, damages, costs, and expenses incurred by Xima as a result of any violation of such Laws by Customer.
20.
U.S. Government Customers. All relevant portions of the Technology are each a “commercial item” as that term is defined at FAR 2.101 (Oct 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 CFR 12.212 (Sep 1995), and is provided to the U.S. government only as a commercial end item. Consistent with FAR 12.212 and DFARS 227.7202 (Jun 1995), all U.S. government users acquire the licenses and rights granted with respect to the Technology with only the rights expressly set forth herein and no other rights.
21.
Additional Terms. This Agreement includes the documents referenced herein, each of which is incorporated into and made a part of this Agreement. This Agreement represents the entire understanding and agreement between the parties with respect to the subject matter of this Agreement and supersedes any and all oral or written agreements or understandings, whether written or verbal, between the parties as to the subject matter of the Agreement. Except as noted herein, this Agreement may be amended or changed only by a writing signed by both parties. Neither party may assign this Agreement or any right, interest, or benefit under this Agreement without the prior written consent of the other party; provided, however, Xima may assign this Agreement to a successor who acquires substantially all of its assets or equity through purchase, merger, or other transaction without the Customer’s consent. Any purported assignment in breach of the foregoing will be null and void. This Agreement will be fully binding upon, inure to the benefit of, and be enforceable by the parties hereto and their respective successors and permitted assigns, and nothing in this Agreement confers upon any other person or entity any legal or equitable right whatsoever to enforce any provision of this Agreement. English (as the meaning of the words and phrases thereof are commonly interpreted in the U.S.A.) shall be the language used in all written communications between the parties pursuant to this Agreement, including all notices. The words “include,” “includes,” and “including” will mean “include,” “includes,” or “including,” in each case, “without limitation.” The failure of either party to enforce any right or provision in this Agreement will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of each party. Except as expressly set forth in this Agreement, the exercise by either party of any of its rights or remedies under this Agreement will be without prejudice to its other rights or remedies under this Agreement or otherwise. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under Law and the remaining provisions of this Agreement will continue in full force and effect. Except as may be expressly agreed by the parties in writing, there are no third-party beneficiaries to this Agreement. The parties are independent contractors, and nothing in this Agreement will be construed as creating an employer-employee relationship, a partnership, or a joint venture between the parties. Neither party is an agent of the other and neither party is authorized to make any representation, contract, or commitment on behalf of the other party. This Agreement may be executed electronically or in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
