Terms and Conditions
Last Updated March 17th, 2023
These General Terms and Conditions are effective as of December 15th 2022, excluding customers subject to prior Terms of Service
This Master Service Agreement (“Agreement”) is made between the organization or entity accessing or using the Platform (“Customer”) and Xima, LLC, d/b/a “Xima Software” with offices at 10610 S. Jordan Gateway, Ste. 300, South Jordan, UT 84095, USA (“Xima”). This Agreement is effective as of the earlier of the date Customer accepts this Agreement (e.g., by clicking “I agree”) or accepts any Order referencing this Agreement (the “Effective Date”).
By entering into an Order referencing this Agreement or by clicking “I agree” to this Agreement, Customer agrees to be bound by the terms of this 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 and a Unified Communication (VOIP) 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 shall have no responsibility or liability with respect to any such Order. 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 the other terms of this Agreement, the other terms of this Agreement will control, except where an Order expressly indicates it is intended to 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
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.
4.5
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.
5.
Emergency Services – 911 Dialing
5.1
Non-Availability of Traditional 911 Or E911 Dialing Service. The VoIP Service does not support traditional 911 or E911 access to emergency services in all locations. Where we do not offer traditional 911 or E911 access, we offer a feature known as “911 Dialing” which is a limited emergency calling service available. The 911 Dialing feature may not work at all when used in conjunction with a Softphone, mobile app, Virtual Numbers or Subscriber provided Customer Premise Equipment. THE 911 DIALING FEATURE IS NOT AUTOMATIC; CUSTOMER MUST SEPARATELY TAKE AFFIRMATIVE STEPS, AS DESCRIBED IN THIS AGREEMENT AND IN OUR SYSTEM DOCUMENTATION, TO REGISTER THE ADDRESS WHERE CUSTOMER WILL USE THE SERVICE IN ORDER TO ACTIVATE THE 911 DIALING FEATURE. Customer must do this for each VoIP phone number that Customer obtains. The 911 Dialing feature of the VoIP Service is different in many important ways from traditional 911 or E911 service as described in our system documentation for 911 Dialing and below. CUSTOMER SHALL INFORM ANY HOUSEHOLD RESIDENTS, GUESTS AND OTHER THIRD PERSONS WHO MAY BE PRESENT AT THE PHYSICAL LOCATION WHERE CUSTOMER UTILIZES THE VoIP SERVICE OF (I) THE NONAVAILABILITY OF TRADITIONAL 911 OR E911, AND (II) THE IMPORTANT DIFFERENCES IN AND LIMITATIONS OF THE XIMA 911 DIALING FEATURE AS COMPARED WITH TRADITIONAL 911 OR E911 DIALING. IT IS CUSTOMER’S RESPONSIBILITY TO PLACE A NOTICE ON EACH DEVICE OR OTHERWISE FIND A MEANS TO ALERT DEVICE USERS OF THESE LIMITATIONS.
5.2
Registration Of Physical Location Required For each phone number that Customer uses for the VoIP Service, Customer must register the physical location where the Customer will be using the VoIP Service with that phone number. When Customer moves the Device to another location, Customer must register the new location. If Customer does not register the new location, any call made using the 911 Dialing feature may be sent to an emergency center near the former address. Customer will register the initial location of use when Customer subscribes to the VoIP Service. Thereafter, Customer may register a new location by following the instructions from the “911″ registration link in the system. For purposes of the 911 Dialing feature, Customer may only register one location at a time for each phone line in use with the VoIP Service.
5.3
How Emergency Personnel Are Contacted We contract with a third party to use the address of the registered location to determine the nearest emergency response center and then forward the call to a general number at that center. When the center receives Customer call, the operator will not have Customer’s address and may not have the phone number. Customer must therefore provide the address and phone number to get help. Some local emergency response centers may decide not to have their general numbers answered by live operators 24 hours a day. If we learn that this is the case, we will send the call instead to a national emergency calling center and a trained agent will contact an emergency center near Customer to dispatch help. Customer hereby authorize us to disclose Customer name and address to third-party service providers, including, without limitation, call routers, call centers, user’s names, and public service answering points, for the purpose of dispatching emergency services personnel to Customer’s registered location.
5.4
Service Outages
- (a) Service Outages Due to Power Failure or Disruption. 911 Dialing does not function in the event of a power failure or disruption. If there is an interruption in the power supply, the VoIP Service, including 911 dialing, will not function until power is restored and device(s) are “online” or registered. Following a power failure or disruption, Customer may need to reset or reconfigure the device prior to utilizing the service, including 911 dialing.
- (b) Service Outages Due to Internet Outage or Suspension or Termination of Broadband Service or ISP Service. Service outages or suspensions or terminations of service by Customer’s broadband provider or ISP will prevent all VoIP Service, including 911 Dialing, from functioning.
- (c) Service Outage Due to Suspension or Termination of Customer’s Xima Account. Service outages due to suspension or termination of the account will prevent all VoIP Service, including 911 Dialing, from functioning.
- (d) Service Outages Due to ISP or Broadband Provider Blocking of Ports or Other Acts. Customer’s ISP or broadband provider or other third party may intentionally or inadvertently block the ports over which the VoIP Service is provided or otherwise impede the usage of the VoIP Service. In that event, provided that Customer alert Xima to this situation, Xima will attempt to work with Customer to resolve the issue. During the period that the ports are being blocked or the VoIP Service is impeded, and unless and until the blocking or impediment is removed or the blocking or impediment is otherwise resolved, Customer’s VoIP Service, including the 911 Dialing feature, may not function. Customer acknowledges that Xima is not responsible for the blocking of ports by Customer’s ISP or broadband provider or any other impediment to Customer’s usage of the VoIP Service, and any loss of service, including 911 Dialing, that may result. In the event Customer loses VoIP Service as a result of blocking of ports or any other impediment to Customer’s usage of the VoIP Service, Customer will continue to be responsible for payment of the Services’ charges unless and until Customer terminate the Services in accordance with this Agreement.
- (e) Other Service Outages. If there is a VoIP Service outage for any reason, such outage will prevent all VoIP Service, including 911 Dialing, from functioning. Such outages may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere in this Agreement.
5.5
Re-Activation Required If Customer Changes Number or Add or Port New Numbers 911 Dialing does not function if there is a change to the phone number or if Customer adds or ports new phone numbers to the account, unless and until Customer successfully registers the location of use for each changed, newly added or newly ported phone number.
5.6
Network Congestion; Reduced Speed for Routing Or Answering 911 Dialing Calls
- (a) Network Congestion. There may be a greater possibility of network congestion and/or reduced speed in the routing of a 911 Dialing call made utilizing the Service as compared to traditional 911 dialing over traditional public telephone network.
- (b) Analytics monitoring. Xima’s VoIP provider uses advanced analytics monitoring for all calls on the server. Calls are data captured and stored on these servers for up to (14) days for troubleshooting purposes along with packet captures and other important tools to help remedy any call quality issues Customer might experience. Xima WILL NOT listen to any calls on this server without explicit consent from Customer. Any customer may opt out of this troubleshooting and monitoring service by making a request to Xima’s support team.
5.7
Possible Lack of Automatic Number Identification. It may or may not be possible for the local emergency personnel to automatically obtain Customer phone number when Customer uses 911 Dialing. The Services are configured to send the automatic number identification information; however, one or more telephone companies, not Xima or it’s providers, route the traffic to the emergency response center and that center may not be capable of receiving and passing on that information. As a result, the operator who answers Customer’s 911 Dialing call may not be able to automatically obtain the phone number and call the user back if the call is not completed or is not forwarded, is dropped or disconnected, if Customer is unable to speak to tell the operator the phone number, or if the Service is not operational for any reason.
5.8
No Automated Location Identification. In most service areas, it is not possible at this time to transmit to the local emergency response center the address that Customer registered for 911 Dialing. Customer will need to state the nature of the emergency promptly and clearly, including Customer location (and possibly the telephone number), as the operator will not have this information. Emergency personnel will not be able to find the location if the call is not completed or is not forwarded, is dropped or disconnected, if Customer’s User is unable to speak to tell the operator the location, or if the Service is not operational for any reason.
5.9
Disclaimer of Liability and Indemnification. We do not have any control over whether, or the manner in which, calls using our 911 Dialing service are answered or addressed by any local emergency response center. We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center. We rely on third parties to assist us in routing 911 Dialing calls to local emergency response centers and to a national emergency calling center. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result.
Neither Xima, nor its affiliates, owners, officers, managers, directors, employees, independent contractors or agents may be held liable for any claim, damage, or loss, and Customer hereby waive any and all such claims or causes of action, arising from or relating to our 911 Dialing service unless such claims or causes of action arose from our gross negligence, recklessness or willful misconduct. Customer shall defend, indemnify, and hold harmless Xima, its affiliates, owners, officers, managers, directors, employees, independent contractors or agents and any other service provider who furnishes services to Customer in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, Customer or any third party relating to the absence, failure or outage of the Service, including 911 Dialing, incorrectly routed 911 Dialing calls, and/or the inability of any user of the Service to be able to use 911 Dialing or access emergency service personnel.
5.10
Alternate 911 Arrangements. If Customer is not comfortable with the limitations of the 911 Dialing service, Customer should consider having an alternate means of accessing traditional 911 or E911 services or terminating the Service.
6.
VoIP Service Distinctions
6.1
The VoIP Service Is Not a Telecommunications Service And Xima Provides It On A Best Effort Basis. Important Distinctions Exist Between Telecommunications Service and The Service Offering That Xima Provides
The Service is subject to different regulatory treatment than telecommunications service. This treatment may limit or otherwise affect Customer rights of redress before regulatory agencies.
6.2
No 0+ Or Operator Assisted Calling; May Not Support X11 Calling The VoIP Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls or calling card calls). The Service may not support 311, 511 and/or other x11 (other than certain specified dialing such as 911 and 411, which are provided for elsewhere in this Agreement) services in one or more (or all) service areas.
6.3
No Directory Listing. The phone numbers Customer obtain from Xima will not be listed in any telephone directories. Phone numbers transferred from Customer’s local phone company may, however, be listed. As a result, someone with Customer’s phone number may not be able to utilize a reverse directory to lookup Customer’s address.
6.4
Incompatibility With Other Services
- (a) Security Systems/Fire Alarm/Elevator/Postage. The Service may not be compatible with security systems/ re alarms. Customer may be required to maintain a telephone connection through Customer’s local exchange carrier in order to use any alarm monitoring functions for any security system installed in Customer’s business. Customer is responsible for contacting the alarm monitoring company to test the compatibility of any alarm monitoring or security system with the Service.
- (b) Certain Broadband and Cable Modem Services. Customer acknowledges that the Service presently may not be compatible with some broadband services. Customer further acknowledges that some providers of broadband service may provide modems that prevent the transmission of communications using the Service. We do not warrant that the Service will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular broadband service.
6.5
Use Of Service and Device by Customers Outside the United States. Although we encourage Customer to use the Service to place calls to foreign countries from within the United States and Canada, Xima does not presently offer or support the VoIP Service in any countries other than the United States and Canada. If Customer uses the VoIP Service or the Device outside of the United States or Canada, Customer will be solely responsible for any violations of local laws and regulations resulting from such use. Xima reserves the right to terminate Customer’s Service immediately if we determine, in our sole and absolute discretion, that Customer has used the Service or the Device outside of the United States or Canada.
6.6
Termination of Existing Voice Contracts. It is Customer’s responsibility to terminate any existing contracts with Customer’s current carrier and/ or service provider. Xima is not responsible for terminating any existing contracts or any damages associated with failure to do so.
7.
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) develop any software or other technology for accessing or using the Technology in a way other than as permitted in this Agreement; (11) use automated scripts or processes to collect information from or otherwise interact with the Technology; or (12) 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.
8.
Prohibited Acts and USES, Compliance with Applicable Laws
8.1
No Resale, Transfer or Assignment. Without Written Consent. Customer shall not resell, transfer or assign the Service or the Equipment (if rented) to another party without our prior written consent. If consent is granted, which is at Xima’s sole discretion, Xima shall be entitled to charge Customer a transfer fee.
8.2
Prohibited Uses And Inappropriate Conduct
- (a) Unlawful Purposes or Usage. Customer shall use the Service and the Equipment only for lawful purposes. Unlawful uses include but are not limited to using the Service for auto-dialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting. Xima reserves the right to immediately terminate or modify Customer’s Service if we determine, in our sole and absolute discretion, that Customer has at any time used the Service for any of the aforementioned or similar activities. In the event of such termination, Customer will be responsible for payment of all fees and charges due to the end of Customer’s then-applicable Term, as further explained in Section 3.3(b) herein above, regardless of how much time is left on the Term, and shall return all Equipment in accordance with the terms provided herein below.
- (b) Inappropriate Conduct. Customer shall not use the Service or the Device in any way that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, or any similar behavior, whether or not it rises to the level of a criminal act. We reserve the right to immediately terminate Customer’s Service if, in our sole and absolute discretion, we determine that Customer has used the Service or Equipment in any of the aforementioned ways. In the event of such termination, Customer will be responsible for payment of all fees and charges due to the end of Customer’s then-applicable Term, as further explained in Section 3.3(b) hereinabove, regardless of how much time is left on the Term.
- (c) Authorization to Report Unlawful or Inappropriate Conduct. If Xima believes that Customer has used the Service or Equipment for an unlawful purpose or engaged in inappropriate conduct while using the Service or Equipment, Xima may forward the relevant communication and other information, including Customer’s identity, to the appropriate authorities for investigation and prosecution. Customer hereby consent to our forwarding of any such communications and information to these authorities. In addition, Xima will provide information in response to law enforcement requests, subpoenas, court orders, to protect its rights and property and in the case where failure to disclose the information may lead to imminent harm to the Customer, its users or others.
8.3
Unlawful Or Inappropriate Content. Customer will be liable for any and all liability that may arise out of the content transmitted by Customer or to any person, whether authorized or unauthorized, using Customer’s Service or Device (each such person, a “User”). Customer and Customer’s Users use of the Service and content shall comply with all applicable laws, regulations and written and electronic instructions for use. Xima reserves the right to terminate or suspend the Service and remove Customer or Customer’s Users’ content from the Service, if we determine, in our sole and absolute discretion, that such use or content does not conform with the requirements set forth in this Agreement or interferes with Xima’s ability to provide Service to Customer or others. Xima’s action or inaction under this Section will not constitute any review or approval of Customer or Users’ use or content.
8.4
Recording Conversations. Xima provides a function that allows a user to record individual telephone conversations. The laws regarding the notice and notification requirements of such recorded conversations vary by state to state. Customer is solely responsible for complying with the local, state, & federal laws in the relevant jurisdiction when using this feature. Additionally, Xima will not alter or modify any call recordings in order to maintain compliance with laws and regulations.
8.5
Compliance With Laws Related To Faxing
There are laws and regulations in Canada, the United States and other countries that regulate the sending of facsimiles. Xima expressly forbids any unlawful use of its Service which may violate any applicable law or regulation including the Telephone Consumer Protection Act. It is solely Customer’s responsibility to ensure that all such laws and regulations, including without limitation, regulation of unsolicited advertising, are adhered to. Customer expressly absolve Xima of all responsibility for Customer’s use of Xima’s Fax services and warrant that they are in full compliance with all laws and regulations regarding sending facsimiles. Customer represents and warrants that Customer will use reasonable efforts to enforce that Customer and end-users:
- (a) Only use Xima’s Fax services for lawful purposes and that Customer use of the Fax services will be in compliance with all federal, state and local laws and regulations including, without limitation, the provisions of the Telephone Consumer Protection Act.
- (b) Customer will not use the Fax services to transmit any unlawful, harmful, threatening, abusive, libelous, vulgar, obscene, profane, hateful, or otherwise objectionable information of any kind, including, but not limited to, encouraging conduct that would constitute a criminal offense, infringe third party rights, give rise to civil liability or otherwise violate any local, state, federal or other law or regulation.
- (c) Customer will not use the Fax services to upload, post, reproduce or distribute, in anyway, any information, software or other material protected by copyright or any other intellectual property right without first obtaining the permission of such right holder.
- (d) Customer will comply with all applicable laws, regulations and conventions, including those related to data privacy, international communications, exportation of technical or personal data, and the sending of certain unsolicited facsimiles.
9.
Prohibited Acts and USES, Compliance with Applicable Laws
9.1
For VoIP Service only customers, Customer is responsible for supplying, operating and supporting the Customer Premise Equipment for use with the VoIP Service. In addition, any customer supplied equipment must be pre-approved by Xima in writing. Regardless of whether Xima approved Customer’s supplied equipment, if Customer’s self-selected equipment is incompatible with the Service or interferes with the effectiveness and delivery of the Service, Customer shall not hold Xima responsible for such issues and will not be given a reduction of fees or the right to terminate Service prior to the end of the Term, in accordance with these Terms and Conditions. We reserve the right to prohibit the use of any interface device. Customer hereby represent and warrant that Customer possess all required rights, including software and/or firmware licenses, to use any interface device that Xima has not provided to Customer. In addition, Customer shall indemnify and hold Xima harmless against any and all liability arising out of Customer use of such interface device with the Service.
9.2
Customer shall not change the electronic serial number or equipment identifier of the Device or perform a factory reset of the Device without our prior written consent. Customer shall not attempt to hack or otherwise disrupt the Service or make any use of the Service that is inconsistent with its intended purpose. Xima reserve the right to immediately terminate the Service for Cause if, in our sole and absolute discretion, determine that Customer has tampered with the Device or Service. In the event of such termination, Customer will be responsible for payment of all fees and charges due to the end of the then-applicable Term, as further explained herein, regardless of how much time is left on the Term.
9.3
Customer shall notify us immediately, in writing or by calling our customer support line, if the Equipment is stolen or if Customer becomes aware at any time that the VoIP Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner. When Customer calls or writes, Customer must provide a detailed description of the circumstances of the Equipment theft, fraudulent use or unauthorized use of Service. Failure to do so in a timely manner may result in the termination of Customer’s Service and additional charges to the Customer. Until such time as Xima receives notice of the theft, fraudulent use or unauthorized use, Customer will be liable for all use of the Service using a Device stolen from Customer and all stolen, fraudulent or unauthorized use of the Service.
9.4
Some Devices and Equipment are deemed not returnable as they are not returnable to the manufacturer and were ordered specifically for the Customer; however, these Devices are returnable within 30 days if the item is defective, and a suitable replacement will be provided in exchange. There will be no refund unless a suitable replacement cannot be provided.
9.5
All Phones purchased through Xima (not any 3rd party) are eligible for a warranty that is the manufacturer’s warranty. The warranty covers defects in the Phone, not loss of a phone or damage to it. Xima will cover replacement phone cost and shipping cost to Customer location and return shipping. The defective phone(s) must be received within (7) business days by our Return Merchandise Authorization department or Customer will be charged the full retail price of a new Phone.
9.6
Rented Equipment
Xima provides customers with the opportunity to rent Equipment. To rent Equipment, Customer must have a 36-month Initial Term. The rented Equipment is under warranty throughout the Term so long as Customer has timely paid invoices. The warranty covers defects in the Equipment, not loss or damage thereto. If Customer elects to rent Equipment from Xima, Customer will execute an Addendum to this Agreement, or the rental terms will appear in the Purchase Order.
- (a) Rental Termination Fee (phones, etc.). If Customer has rented Equipment from Xima and terminate this Agreement before the end of the then-applicable Term, Customer will be liable for an early termination fee of: (a) FULL MRSP PRICE for each PHONE/DEVICE returned to Xima before HALF of the Term has transpired and (b) HALF MRSP PRICE for each PHONE/DEVICE returned to Xima after HALF of the Term has transpired. Customer may also be charged a Restocking fee of $75.00 per Device for Devices returned prior to the end of the applicable Term.
- (b) Return of Rented Equipment. If Customer is renting Equipment from Xima, Customer is legally responsible for returning such Equipment, at Customer’s expense, in good working order and condition upon termination of Service. If Customer fails to return the Equipment within thirty (30) business days of the effective date of termination and continue to fail to do so for ten (10) days after receipt of notice from Xima, criminal charges may be led against Customer for theft of equipment not returned to Xima, and any other appropriate civil and criminal claims may be led against Customer. If the Equipment is damaged when received by Xima, Customer will be charged a FULL MRSP.
9.7
Whether Customer purchases Equipment from Xima or lease Equipment from Xima, Customer bear all risk of loss of, theft of, casualty to or damage to the Equipment, from the time it is shipped to Customer until the time (if any) when it is returned to Xima, in accordance with this Agreement. Customer will be charged FULL MRSP PRICE for each PHONE/DEVICE that is lost, stolen or damaged.
10.
11.
Ownership and Rights
11.1
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.
11.2
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).
11.3
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.
11.4
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.
12.
Ownership and Rights
12.1
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.
12.2
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.
12.3
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.
12.4
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.
12.5
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.
12.6
FCC Regulator Fees. For VoIP Service customers, a regulatory fee is added to comply with all Federal and State communication registration and filings. The current fee is $15.43. This will change from year to year but will not exceed 15% increase/decrease per year.
13.
Warranties; disclaimers.
13.1
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.
13.2
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.
13.3
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.
13.4
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.
13.5
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.
14.
Indemnification.
14.1
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.
14.2
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.
14.3
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.
15.
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.
16.
Termination and Effect.
16.1
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.
- (d) Number Transfer on Service Termination. Upon the termination of Customer’s Service, Xima may, in our sole and absolute discretion, release to Customer’s new service provider the telephone number that Customer ported (transferred or moved) to Xima’s VoIP platform from Customer’s previous service provider and used in connection with the Service if:
- Such new service provider is able to accept such number.
- Customer account has been terminated by
- Customer in accordance with these Terms and Conditions
- Customer account is completely current, including payment for all charges and applicable termination fees; and
- Customer requests the transfer in writing upon terminating of the account.
16.2
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.
16.3
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.
16.4
Survival. The following Sections will survive any termination or expiration of this Agreement for any reason: 1, 7, 11, 14, 15, 16, 18, 20, 22, 23, and 25.
17.
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.
18.
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.
19.
Data Privacy and Security. Each party will comply with the Data Processing Addendum available at https://ximasoftware.com/data-processing-addendum/ (“DPA”). The DPA is hereby incorporated into this Agreement by reference.
20.
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; or (4) by electronic mail transmission, provided that receipt of such electronic mail is confirmed by the recipient. 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.
21.
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).
22.
Disputes
22.1
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.
22.2
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.
22.3
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.
23.
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.
24.
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.
25.
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.