CCaaS Terms of Service

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1. SERVICES

1.1 License. Subject to the terms and conditions of this Agreement, Xima (a) will use commercially reasonable efforts to host, operate and maintain the services as set forth on the Purchase Order, which may include the Xima CCaaS platform (the “Platform”), access to Xima APIs (the “APIs”), and/or other services offered by Xima (collectively, the “Services”); (b) grants Customer a non-exclusive, non-transferable, non-sublicensable right and license to access and use the Services; and (c) grants Customer a non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content (as defined in Section 1.5 below) solely for purposes of using the Services. For the avoidance of doubt, unless otherwise specified by Xima in writing, any and all rights or licenses granted by Xima to Customer shall only apply to Customer and not Customer’s affiliates, including, without limitation, any parent, subsidiary, or other entity controlled by or under common control with Customer.
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1.2 Access and Account Setup. Upon execution of a Purchase Order, Xima will provide Customer with a unique login and password to access the Services web pages which are hosted and maintained by Xima. Customer shall be responsible for the acts or omissions of any person who accesses the Services using logins provided to or created by Customer. Xima reserves the right to modify or discontinue any part of the Services at any time by giving thirty (30) days’ prior written notice to Customer, provided that in the event such modification or discontinuance materially reduces the functionality of the Services, Customer may terminate this Agreement upon at least thirty (30) days’ prior written notice to Xima, and Xima shall provide Customer with a pro-rated refund of any pre-paid fees for Services not performed by the effective date of termination. From time to time, Xima personnel may log in to the Service under Customer’s account in order to maintain or improve the Service, including providing Customer assistance with technical or billing issues. Customer hereby acknowledges and consents to such access.

1.3 Service Availability. Xima will use commercially reasonable efforts to maintain the Service availability to send and receive data, subject to downtimes resulting from maintenance, repairs and upgrades. Xima will attempt to notify Customer electronically via the Service in advance of any planned downtime. Notwithstanding the foregoing, Xima will not be liable for any failures in the Service or any other problems which are related to (a) the Customer Content; or (b) outages to any telecommunications or public Internet backbones, networks or servers, or other equipment or service outside of Xima’s facilities or control.

1.4 Service Support. Xima will provide Customer with telephone and electronic ticket support for Customer’s use of the Service during Xima’s regular business hours. Customer agrees that Xima is not responsible to provide support for any issues resulting from problems, errors or inquiries related to Customer’s systems or hardware.

1.5 Customer Content. As used herein, the term “Content” includes, without limitation, information, data, text, photographs, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services, including without limitation all Customer Content (as defined below). All Content created through or submitted to the Services by Customer (collectively “Customer Content”) is the sole responsibility of Customer. Customer acknowledges and agrees that Xima will not assume any, and hereby disclaims all, responsibility and liability for Customer Content and any modifications thereto. Customer hereby grants Xima a worldwide, non-exclusive, royalty-free, fully paid-up license to use, reproduce, perform, display, modify, and distribute the Customer Content in connection with providing the Services to Customer.

1.6 Use Restrictions. Except as expressly permitted in this Agreement, Customer shall not directly or indirectly (a) use any of Xima’s Confidential Information (defined below) to create any service, software, documentation or data that is similar or competitive to any aspect of the Services; (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Services, or the underlying ideas, algorithms or trade secrets therein; (c) encumber, sublicense, transfer, rent, lease, time-share or use the Services in any service bureau arrangement or otherwise for the benefit of any third party; (d) copy, harvest, scrape, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Services; (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; (f) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (g) remove any copyright patent, trademark, or other intellectual property notices, information, and restrictions contained in any Content accessed through the Services; or (h) permit any third party to engage in any of the foregoing proscribed acts.

1.7 Limitations. Xima will not be responsible or liable for any failure in the Services resulting from or attributable to (a) Customer use of the Services not in accordance with this Agreement or any relevant documentation provided by Xima; (b) failures in any telecommunications, network or other service or equipment outside of Xima’s or its service providers’ facilities; (c) Customer’s or any third party’s products, services, negligence, acts or omissions; (d) any force majeure or other cause beyond Xima’s reasonable control; or (e) unauthorized access, breach of firewalls or other hacking by third parties.

2. PROPRIETARY RIGHTS

Subject to the rights and licenses expressly granted hereunder, Customer shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to the Customer Content. Subject to the limited rights and licenses expressly granted hereunder, Xima (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to the Services, the Platform, the APIs, all Content (excluding the Customer Content), all Xima trademarks, names, logos, all copies, modifications and derivative works thereof, and all rights to patent, copyright, trade secret and other proprietary or intellectual property rights therein. Additionally, all Customer (a) suggestions for correction, change or modification to the Services; (b) evaluations; and (c) other feedback, information and reports provided to Xima hereunder (collectively, “Feedback”), will be the property of Xima, and Customer shall and hereby does assign any rights in such Feedback to Xima. Customer agrees to assist Xima, at Xima’s expense, in obtaining intellectual property protection for such Feedback, as Xima may reasonably request.

3. CONFIDENTIALITY

3.1 Definition. Each party agrees that the business, technical and financial information, including without limitation, the Services, the Platform, and the APIs, and all software, source code, inventions, algorithms, know-how and ideas and the terms and conditions of this Agreement, designated in writing as confidential at the time of disclosure or designated as such within a reasonable time after disclosure, or disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of the disclosing party and its licensors (“Confidential Information”). For the avoidance of doubt, any and all data provided to Customer through the Services (other than Customer Content) shall be considered Xima’s Confidential Information. Confidential Information does not include information that (a) is previously rightfully known to the receiving party without restriction on disclosure; (b) is or becomes known to the general public, through no act or omission on the part of the receiving party; (c) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation; or (d) is independently developed by the receiving party.

3.2 Confidentiality. Except for the specific rights granted by this Agreement, the receiving party shall not access, use or disclose any of the disclosing party’s Confidential Information without its written consent, and shall use at least the standard of care used to protect its own Confidential Information, but not less than reasonable care to protect the disclosing party’s Confidential Information, including ensuring that its employees and contractors with access to such Confidential Information (a) have a need to know for the purposes of this Agreement and (b) have been apprised of and agree to restrictions at least as protective of the disclosing party’s Confidential Information as this Agreement. Each party shall be responsible for any breach of confidentiality by its employees and contractors. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided that either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any legal or regulatory requirement, financing transaction or due diligence inquiry.

3.3 Required Disclosure. Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any applicable court order, law, rule or regulation; provided that at least ten (10) business days prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party (to the extent legally permitted) in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.

4. PRODUCT PURCHASE AND PAYMENT

If Xima is responsible for billing and collection of payments from Customer, then the provisions in this Section 4 apply.

4.1 Offer and Acceptance. To purchase and use the Product, Customer shall check the box ‘Yes, I agree to the Terms and Conditions’ when inputting their billing information into the Services’ web portal. This portal will specify: (i) which Product is being ordered and (ii) the desired Subscription Term (defined below) for such purchase order. Each purchase order for the Product is subject to Xima’s acceptance. The Customer shall pay the initial payment for services at the time the purchase order is accepted by Xima. Following acceptance by Xima and payment in advance for the initial month’s services by Customer, each month’s services thereafter will be paid in advance by Customer to Xima.

4.2 Payment Terms. Customer must provide Xima their bank account or credit card information in the Product portal. This will be used by Xima to collect automatic subscription payments on a monthly basis. Customer agrees to provide Xima with such information, and hereby consents to Xima charging automatic payments to Customer’s account on a monthly basis throughout the Subscription Term, and continuing for so long as the Product is being made available to the applicable Customer. These automatic payments may include the Subscription Price for each month, plus all applicable, taxes, customs, duties and tariffs assessed to Xima. To the extent that that Xima cannot obtain payment from Customer by virtue of a changed account number, stop payment order by Customer or otherwise, Xima shall send Customer an invoice for all outstanding amounts. All amounts are due in full in United States currency within thirty (30) days after the date of Xima’s invoice. Customer shall be assessed a single late fee equal to one and one-half percent (1.5%) of all outstanding amounts not paid within thirty (30) days after the date of the invoice, and all amounts not paid within thirty (30) days after the date of the invoice, including said late fee, shall accrue interest until paid in full at the lesser of (i) two percent (2%) per month or (ii) the maximum interest rate allowed by law in the State of Utah. To the extent that any amounts payable by Customer hereunder exceed sixty (60) days past-due, Xima reserves the right to terminate services and access to the Product by the Customer. In order to re-activate the Product’s services for such Customer, Customer will be required to pay all outstanding amounts due, together with a reactivation fee of $250.00.

4.4 Subscription Term. Every purchase order submitted to Xima by Customer shall specify the term for such subscription (the “Subscription Term”), which may be one (1), two (2), three (3), four (4), or five (5) years. At the conclusion of the Subscription Term, Customer’s specific Product subscription shall automatically renew for successive one (1) year periods until terminated by either Xima or Customer with at least one (1) month’s prior written notice.

4.5 Independent Payment Obligation. IF XIMA IS RESPONSIBLE FOR BILLING THE CUSTOMER AND COLLECTING FROM THE CUSTOMER FOR ITS OWN ACCOUNT, ALL CHARGES MADE BY XIMA TO THE CUSTOMER FOR USE OF THE SPECIFIC PRODUCT, INCLUDING ANY TAXES, DUTES, FEES OR OTHER CHARGES THAT THE CUSTOMER IS REQUIRED TO PAY OR COLLECT. ONCE A PURCHASE ORDER IS ACCEPTED BY XIMA, THE PURCHASE ORDER WILL REPRESENT CUSTOMER’S BINDING CONTRACTUAL OBLIGATION TO PAY XIMA THE SUBSCRIPTION PRICE FOR EACH MONTH THROUGHOUT THE SUBSCRIPTION TERM. IN THE EVENT CUSTOMER FAILS TO TIMELEY TENDER ALL SUBSCRIPTION PAYMENTS REQUIRED PURSUANT TO A PURCHASE ORDER, XIMA RESERVES THE RIGHT TO (i) TERMINATE THE CUSTOMER’S SUBSCRIPTION/LICENSE TO USE THE PRODUCT/SERVICES COVERED BY SUCH PURCHASE ORDER; (ii) TERMINATE THIS AGREEMENT; AND (iii) TAKE ANY OTHER ACTION AGAINST CUSTOMER AVAILABLE TO XIMA AT LAW OR EQUITY.

4.6 Early Termination Penalty. In the event Customer desires to terminate any given subscription prior to the conclusion of the applicable Subscription Term, Customer shall be entitled to terminate such subscription only upon: (a) written notice to Xima of its intent to so terminate and (b) payment in full to Xima of an amount equal to the lesser of: (i) the sum total of all remaining monthly subscription payments due and payable to Xima prior to the conclusion of the applicable Subscription Term at the applicable Subscription Price; or (ii) the sum total of twelve (12) monthly subscription payments at the applicable Subscription Price.

5. LIMITED WARRANTY AND DISCLAIMERS

5.1 General. Each party represents and warrants that: (a) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (b) this Agreement is legally binding upon it and enforceable in accordance with its terms; (c) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding to which it is a party or by which it may be bound; and (d) it will perform its obligations hereunder in accordance with all applicable laws.

5.2 Customer Warranties. Customer represents and warrants that (a) Customer has all rights to grant the licenses to Xima set forth herein, including without limitation to Customer Content, without infringement or violation of any applicable laws or third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights, and (b) Customer shall not make available through the Services any Content that is disparaging, obscene, offensive, or otherwise inappropriate or that contains any viruses or any other harmful code.

6. DISCLAIMERS

EXCEPT AS PROVIDED IN SECTION 5.1 HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, XIMA HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, RELIABILITY, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE, AS WELL AS ALL WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

7. INDEMNIFICATION

7.1 Customer. Customer agrees to defend against and hold Xima harmless from any claim by a third party that arises from or is related to (a) any Customer Content or (b) Customer’s use of the Services in violation of this Agreement, and Customer agrees to indemnify Xima for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claims.

7.2 Xima. Xima agrees to (a) defend against and hold Customer harmless from any claim by a third party that Services infringe a valid U.S. patent (issued as of the Effective Date), or any copyright or trade secret, of such third party and (b) indemnify Customer for settlement amounts or third party damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claim. If any part of the Services become or, in Xima’s opinion is likely to become, the subject of any injunction preventing its use as contemplated herein, Xima may, at its option (1) obtain for Customer the right to continue using the Services or (2) replace or modify the Services so that such services become non-infringing. If (1) and (2) are not reasonably available to Xima, Xima may terminate this Agreement upon written notice to Customer and refund to Customer a pro-rated amount of any pre-paid fees. Xima shall have no liability or obligation hereunder with respect to any claim to the extent based upon (i) any use of the Services not strictly in accordance with this Agreement or in an application or environment or on a platform or with devices for which it was not designed or contemplated; (ii) modifications, alterations, combinations or enhancements of the Services not created by or for Xima; (iii) any Customer Content; or (iv) Customer’s continuing allegedly infringing activity after being notified thereof. The foregoing states the entire liability of Xima, and Customer’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Services, any part thereof or its use or operation.

7.3 Procedure. Any claim for indemnification hereunder requires that (a) the indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (b) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim. The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party’s written consent (such consent not to be unreasonably delayed, conditioned or withheld). The indemnifying party shall not be liable for any settlement made without its prior written consent.

8. LIMITATION OF LIABILITY

EXCEPT for any breach of SECTION 3 (CONFIDENTIALITY) OR LIABILITIES TO THIRD PARTIES PURSUANT TO SECTION 7 (INDEMNIFICATION), In no event shall EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF this Agreement, regardless of the form of any claim or action (whether in CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), for any (A) interruption OF USE, LOSS OR INACCURACY of data, loss of, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS or SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (C) damages, IN THE AGGREGATE, in excess of the AMOUNTS PAID TO IT (IN THE CASE OF XIMA) OR PAID AND PAYABLE BY IT (IN THE CASE OF CUSTOMER) HEREUNDER DURING THE SIX (6) MONTHS PRECEDING SUCH CLAIM, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
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9. TERM AND TERMINATION

9.1 Term. Unless otherwise specified in an applicable Purchase Order or terminated as provided herein, this Agreement shall commence on the Effective Date and shall continue for one (1) year from the Effective Date. The term shall automatically renew for successive one (1) year terms, unless either party notifies the other party of its intent not to renew at least thirty (30) days prior to the end of the then current term.

9.2 Termination. Other than as set forth in Section 1.2, this Agreement may be earlier terminated by either party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party (ten (10) days in the case on non-payment).

9.3 Effects of Termination. Upon any expiration or termination of this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive. The provisions of Sections 2 (Proprietary Rights), 3 (Confidentiality), 7 (Indemnification), 6 (Disclaimers), 8 (Limitation of Liability), 10 (General Provisions) and this Section 9.3 shall survive any termination of this Agreement.

10. GENERAL PROVISIONS

10.1 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior negotiations or agreements (oral or written), between the parties regarding the subject matter hereof.

10.2 Publicity. Customer hereby consents to inclusion of its name and logo in client lists and marketing materials that may be published as part of Xima’s marketing and promotional efforts. From time to time upon Xima’s request, Customer agrees it will provide reasonable cooperation and assistance in connection with such efforts (such as, for example, by acting as a reference, issuing press releases and writing testimonials and case studies with statements attributed to a named employee of Customer).

10.3 Modification and Waiver. No change, consent or waiver under this Agreement will be binding on either party unless made in writing and physically signed by an authorized representative of both parties, provided, however, that purchase orders, invoices, confirmations or similar documents shall not be considered a written modification of this CCaaS Terms of Service Agreement, even if such documents are signed by all parties. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy.

10.4 Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

10.5 Governing Law. This Agreement shall be governed by and construed under the laws of the State of Utah and the United States without regard to conflicts of law provisions thereof. The parties hereby consent to exclusive jurisdiction, venue and personal jurisdiction in the state and federal courts located in Salt Lake County, Utah, for purposes of any request for temporary or interim relief as allowed in Section 10.6 herein or for purposes of enforcing or confirming any interim or final arbitration award made in accordance with Section 10.6 herein.

10.6 Arbitration. Any dispute between the parties relating to or arising out of this Agreement shall be subject to binding arbitration, administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules or its International Arbitration Rules and Procedures (for foreign-based Customers) then existing, as appropriate based on the business address of the Customer. The arbitration shall be heard and determined by a single arbitrator selected in accordance with the AAA Rules, who has experience and familiarity with information technology disputes. The arbitration proceeding shall occur in Salt Lake City, Utah. Each Party shall initially bear its own costs and shall equally share the arbitrators’ fees; however, the arbitrator shall award attorneys’ fees, costs, and the fees of the arbitration to the prevailing party in accordance with the AAA Rules. In the event either Party fails to timely pay its share of the arbitration fees as set forth by the AAA, the nonpaying party thereby waives all defenses and claims it may have asserted in the case and the arbitrator may enter a final award in favor of the non-defaulting party. The arbitration shall be conducted confidentially and in a manner to protect and preserve the confidential nature of the parties’ proprietary and confidential information. Any decision entered by the Arbitrator shall be reasoned and must be supported by Utah law (case law and statutory law). Either Party may, without waiving any remedy under this Agreement, seek from any court specified in Section 10.4 above any interim or provisional relief that such Party deems necessary, including without limitation rights accruing to or secured by such Party under Section 3 “Confidentiality” hereof, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal’s determination of the merits of the claim).

10.7 Remedies. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 3, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.

10.8 Notices. All notices under this Agreement will be in writing and delivered to the parties at their respective addresses stated herein or at such other address designated by written notice. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email or facsimile; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.

10.9 Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.

10.10 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by Customer without Xima’s written consent. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.

10.11 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.