Terms of Service

These Terms of Service and the Order Form (is applicable) constitute an agreement (Agreement) between Xakia Technologies Inc., a Delaware corporation whose principal place of business is 4700 Belleview, Suite 404, Kansas City, Missouri 64112, USA (Vendor) and the corporation, limited liability company, or other business entity entering into this Agreement (Customer). This Agreement is effective as of the date Customer clicks “Register” or signs the Vendor’s Order Form (if any), whichever occurs first (Effective Date). Customer’s use of and Vendor’s provision of Vendor’s System are governed by this Agreement

1. DEFINITIONS
The following capitalized terms will have the following meanings when used in this Agreement.

1.1. Administrator means a User with authority to designate additional Users and/or Administrators and manage the configuration of the System.

1.2. Agreement means these Terms of Service and the Order Form (if applicable).

1.3. Applicable Law means laws, regulations, statutes, rules, orders and other legal requirements of any international, federal, state/provincial, or local government authority that apply to these parties and/or Agreement.

1.4. AUP means Vendor’s acceptable use policy, as amended from time to time, currently posted at http://www.xakiatech.com/acceptable-use-policy.

1.5. Authorized User is defined in section 5.7(a).

1.6. Customer Data means data in electronic form input, documents uploaded by Customer, or data collected through the System by or from Customer, including without limitation by Customer’s Users. For the avoidance of doubt, Customer Data does not include personal information that Customer provides to Vendor outside the System (e.g., e-mails between the parties); such personal information is governed by the applicable Privacy Policy.

1.7. Customer Data Location means a jurisdiction that has been selected by Customer for the purpose of the System, in which Vendor receives and stores Customer Data.

1.8. Customer Support means support offered by the Vendor for configuration, training, technical, billing or other support in delivering the System.

1.9. Documentation means any documentation for and in relation to the System provided to Customer by Vendor.

1.10. Feedback means any suggestion or idea for improving or otherwise modifying any of Vendor’s products or services.

1.11. Order Form means any order form(s) provided by the Vendor to Customer in connection with the System.

1.12. Platform means that part of the Website to which Customer is given the right to log in to use the System, which may include app.xakiatech.com.

1.13. Privacy Policy means Vendor’s privacy policy, as amended from time to time, applicable to each Customer Data Location selected by Customer in the Platform that are available at:

(a) USA: www.xakiatech.com/usa-privacy

(b) Australia: www.xakiatech.com/privacy-policy

(d) Canada: https://www.xakiatech.com/canadian-privacy-policy.

1.14. Subscription means Vendor’s selected subscription type for access to the System, entered into via the Platform.

1.15. Subscription Fee means the access fees (excluding any taxes and duties) payable by Customer for access to the System by its Users in accordance with the fee schedule set out on the Website (which Vendor may change from time to time in conjunction with commercially reasonable notice provided to Customer), as varied by the Order Form (if applicable). If Customer has selected more than one Customer Data Location for an Authorized User, the Vendor may elect which of those Customer Data Locations will be used to determine the fee payable for that Authorized User.

1.16. Subscription Period means one month or such other period as specified in the Order Form (if applicable). For the avoidance of doubt, after the period specified in an Order Form ends, the Subscription Period will be one month unless Customer and the Vendor otherwise agree.

1.17. System means the online matter management services made available by Vendor to Customer (as may be changed or updated from time to time by Vendor) via the Platform.

1.18. Term means the period of time commencing on the Effective Date and continuing through the Trial Period and Subscription Period(s).

1.19. Trial Period means the period of 14 days from the Effective Date, unless a different period of time is agreed upon by parties.

1.20. User means any individual who uses the System on Customer’s behalf or through Customer’s account or passwords, whether authorized or not. For the purposes of sections 5, 7, 8.3, and 10, a reference to a Customer includes that Customer’s Users.

1.21. Vendor’s Affiliates means agents, representatives or subcontractors that are acting on behalf of, in the interest of, and for the benefit of Vendor.

1.22. Vendor Associates means Vendor’s affiliates, shareholders, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives, successors and assigns.

1.23. Website means the Internet site(s) operated by Vendor from time to time, which may include www.xakiatech.com, or any other website operated by Vendor as advised to Customer.

2. THE SYSTEM

2.1. Use of the System. During the Term, Customer may access and use the System via the Platform pursuant to:

(a) the terms of its Subscription, including such features and functions as the Subscription requires; and

(b) Vendor’s policies posted on its Website or otherwise provided to Customer, as such policies may be updated from time to time.
Customer’s access to and use of the System is limited to Authorized Users, is non-exclusive, non-transferable, and limited by and subject to this Agreement.

2.2. Availability. Vendor will use commercially reasonable efforts to ensure the System is available 24 hours a day, seven days a week. In the event that planned maintenance or other development activity is required that would render the System or
Platform unavailable, Vendor will provide a minimum of 48 hours' notice to the Administrator and make commercially reasonably efforts to do so outside peak usage periods. If for any reason Vendor experiences prolonged, unplanned interruption of the System, the Vendor will notify the Administrator as soon as practicable.

2.3. Ownership of Customer Data. As between Vendor and Customer, any content uploaded or posted to the System by Customer remains the property of Customer.

2.4. System Revisions. Vendor may update or change the System, or revise System features and functions, at any time, including without limitation by removing such features and functions. If any such revision to the System materially reduces features or functionality as required by a Subscription, Customer may within 30 days of notice of the revision cancel its subscription to the System and terminate this Agreement. Notwithstanding the foregoing, if Customer continues the Subscription despite such revision in features or functionality as required by the Subscription, Vendor shall offer Customer a commercially reasonable adjustment in the Customer’s applicable Subscription Fee.

2.5. Administrator. An Administrator shall be deemed to have the authority to manage the Subscription and Customer’s Users. Any notice to an Administrator under this Agreement regarding System operations may be provided by an e-mail message to the Administrator, or, in the case of a notice that is applicable to all customers of the System regarding System operations, in the form of a conspicuous announcement on the System.

3. SYSTEM FEES AND PAYMENT

3.1. Payment Obligations. Customer will pay Vendor the Subscription Fee for each Subscription Period. Vendor will not be required to refund the Subscription Fee under any circumstances, including but not limited to partial periods of service (whether or not caused by Vendor exercising its rights to suspend or terminate access under this Agreement), upgrade/downgrade refunds, or refunds for periods unused with an active subscription. The Subscription Fee for the Subscription Period is payable to Vendor or a Vendor’s Affiliate nominated in writing by Vendor in advance. If Customer elects to pay the Subscription Fee by credit card, the Subscription Fee will be charged to the credit card details provided when Customer registered to use the System. Customer’s credit card will be charged on the due date, and an invoice will be sent through the System to Customer. If Customer does not elect to pay the Subscription Fee by credit card, Vendor will invoice Customer for each Subscription Period. Any other services that Vendor will provide Customer, and associated fees, will be set out in the Order Form or otherwise agreed in writing and Customer will be provided with an invoice for those fees. Invoices are payable 30 days from the date of each invoice. Customer is responsible for payment of all taxes and duties in addition to Vendor’s fees. Any invoice not paid within 30 days of billing is subject to 1.5% monthly interest charge or (if less) the maximum amount of interest permitted by Applicable Law.

3.2. Cancelling Subscription. There is no charge for cancelling a Subscription, and a Subscription cancelled prior to the end of its current billing cycle will not be charged again in the following cycle.

3.3. Change to Subscription. The amount charged on the next billing cycle will be automatically updated to reflect any changes to the Subscription, including changes to Authorized Users, upgrades or downgrades. Subscription changes, including downgrades, may result in loss of access to the System, features, or an increase or reduction in the amount of available capacity by the System.

3.4. Price Changes. All prices are subject to change upon 60 days' notice. Such notice may be provided by e-mail message to the Administrator, or in the form of an announcement on the System.

3.5. Deductions and Tax Withholdings. Any and all payments by or on account of the compensation payable under this Agreement shall be made free and clear of and without deduction or withholding for any taxes. If Customer is required to deduct or withhold any taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, Vendor receives an amount equal to the sum it would have received had no such deduction or withholding been made.

4. CUSTOMER DATA AND PRIVACY

4.1. Use of Customer Data. Unless it receives Customer’s prior written consent, Vendor will not allow access to Customer Data to any third party except Vendor’s Affiliates for the provision of services hereunder. Any third party that accesses Customer Data pursuant to Vendor’s consent will be subject to written nondisclosure obligations and other legal obligations pertaining thereto.
Notwithstanding the foregoing, Vendor may disclose Customer Data as required by Applicable Laws or by proper legal or governmental authority. Where permitted by law, Vendor will give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense. Vendor will comply with all Applicable Laws, specifically including those relating to Customer Data and privacy.

4.2. Third Party Applications. If Vendor and Customer mutually agree to enable third-party applications for use in conjunction with the System, Customer acknowledges that Vendor may allow access to Customer Data as required for the interoperation of such third-party applications with the System. Vendor shall not be responsible for the acts or omissions of any third-party application enabled by Customer.

4.3. Risk of Exposure. Vendor adheres to industry standard policies and procedures to prevent data loss, including a daily system data back-up regime. Customer may export its matters list through the Platform, and Vendor recommends that Customer regularly does so. If Vendor directly causes or contributes to any loss, corruption or destruction in the accessibility or usability of Customer Data, Vendor will at its own cost and expense, use its commercially reasonable efforts to restore that Customer Data from the available back-up. This is Customer’s sole and exclusive remedy for any loss, corruption or destruction of Customer Data attributable to Vendor.

4.4. Data Accuracy. Vendor will have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including without limitation Customer Data and any other data uploaded by Users.

4.5. Data Deletion. Vendor has the right, but not the obligation, to permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more. For delinquent or suspended accounts, Vendor will provide the Administrator with at least 30 days’ written notice prior to such erasure.

4.6. Regulated Data. Customer acknowledges and agrees that Customer has total control over Customer Data entered into the System. Customer is solely responsible for determining whether placing Customer Data in the System is permissible under Applicable Laws.

4.7. Aggregated & Anonymized Data. Vendor may use anonymized and aggregated Customer Data that is not capable of identifying Customer or its data subjects in any way (Aggregated Data) for its business and commercial purposes. Vendor must obtain Customer’s prior written consent to use Customer Data (including metadata, matter descriptions, content, document titles or documents), Customer’s name, or Customer’s logo for any commercial purpose.

4.8. Location of Customer Data. Customer agrees that Customer Data will be transferred to servers of Vendor’s data hosting provider in the Customer Data Location selected by Customer for that Authorized User. Vendor’s data hosting provider’s role is limited to providing a hosting and storage service to Vendor, and Vendor has taken commercially reasonable steps to ensure that its data hosting provider uses the necessary level of protection for Customer Data. Vendor’s data hosting provider is not permitted to access or use Customer Data except for the limited purpose of storing the information. Vendor does not currently “disclose” personal information in Customer Data outside Customer Data Locations selected by Customer, except to Vendor Affiliates (including related corporate entities in Australia) if located outside of the Customer Data Locations for the purposes of providing Customer Support.

4.9. Data Processor and Data Controller. Customer acknowledges in all cases that Vendor acts as the “data processor” of Customer Data and Customer is the “data controller” of Customer Data under applicable data protection regulations in the European Union and European Economic Area.

4.10. Required Consents. Customer represents and warrants that Customer has obtained and will obtain any required consents necessary to permit the processing of Customer Data under this Agreement and that Vendor’s processing of Customer Data under this Agreement will not violate any Applicable Law or any individual’s rights.

4.11. Vendor’s Data Processing Addendum. To the extent Vendor processes any personal information as part of Customer Data that is subject to the General Data Protection Regulation, the terms of Vendor’s Data Processing Addendum (as amended from time to time) are incorporated into this Agreement. Vendor’s Data Processing Addendum is available at https://www.xakiatech.com/subprocessors.

4.12. Security. Vendor takes all reasonable precautions to protect it from unauthorized access, modification or disclosure. Customer Data is stored on secure servers that have SSL Certificates issued by leading certificate authorities, and all Customer Data entered into the Platform by Customer is encrypted. Vendor will promptly advise Customer upon discovering or being advised of a security breach where Customer Data is lost, stolen, accessed, used, disclosed, copied, modified, or disposed of by any unauthorized persons or in any unauthorized manner. Vendor will use commercially reasonable efforts to stop said security breach and take all other actions that Vendor reasonably deems necessary to maintain or enhance the security of Vendor’s computing systems and networks and Customer’s access to the System. Vendor is solely responsible for the security of Vendor’s systems and internal network.

5. CUSTOMER RESPONSIBILITIES AND RESTRICTIONS

5.1. General. Customer must only use the System and Platform for Customer’s own lawful internal business purposes, in accordance with this Agreement, the Documentation, and any notice sent by Vendor or condition posted on the Website.

5.2. Acceptable Use. Customer will comply with the AUP. Customer will not:

(a) use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System;

(b) provide System passwords or other log-in information to any third party;

(d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System.

In the event that Vendor reasonably suspects any material breach of the requirements of this Section 5, including without limitation by Users, Vendor may suspend Customer’s access to the System without advance notice, in addition to such other remedies as Vendor may have.

5.3. Unauthorized Access; Securing Customer Systems. Customer will take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Customer will notify Vendor without undue delay of any known or suspected unauthorized use of the System or breach of its security and will use best efforts to stop said breach, and take all other actions that Vendor reasonably deems necessary to maintain or enhance the security of Vendor’s computing systems and networks and Customer’s access to the System. Customer is solely responsible for the security of Customer’s systems (including the browser or other software used to connect to the System) and internal network.

5.4. Usage Limitations. Customer must comply with, and may not work around, any technical limitations in the System that only allow Customer to use it in certain ways (e.g., limits on number of Users). Vendor will use commercially reasonable efforts to notify the Administrator of any such limitations.

5.5. Compliance with Laws. In its use of the System, Customer will comply with all Applicable Laws.

5.6. Users and System Access. Customer is responsible and liable for:

(a) Users’ use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and

(b) any use of the System through Customer’s account, whether authorized or unauthorized.

5.7. Authorized Users. Customer acknowledges and agrees that, subject to any applicable written agreement between Customer and the Users, or any other Applicable Laws:

(a) Customer determines who is an authorized User (an Authorized User) and what level of user role access to the System that Authorized User has;

(b) Customer selects jurisdiction(s) at which an Authorized User may access the System;

(c) Customer controls each Authorized User’s level of access to the System at all times and can revoke or change an Authorized
User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an Authorized User or shall have that different level of access, as the case may be; and

(d) if there is any dispute between Customer and an Authorized User regarding access to the System, Customer shall decide what access or level of access to the relevant data or System that Authorized User shall have, if any.

5.8. Technical Support. Vendor agrees to provide Customer with technical help through Vendor’s online support located on Vendor’s Website or through direct email communications with Vendor via support@xakiatech.com.

6. IP AND FEEDBACK

6.1. IP Rights to the System. Vendor retains all right, title, and interest in and to the System, Platform, Website and Documentation, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System. Except for the license granted in Section 2.1, this Agreement does not grant Customer any intellectual property license or rights in or to the System, Platform, Website, Documentation or any of their components. Customer recognizes that the System, Platform, Website, Documentation and their components are protected by copyright and other laws.

6.2. IP Rights to Customer Data. Customer retains all right, title, and interest in and to the Customer Data. However, Customer’s access to the Customer Data through the System is contingent on full payment of the Subscription Fees when due. Customer grants Vendor a license to use, copy, transmit, store, and back-up Customer’s information and Customer Data for the purposes of enabling Customer to access and use the System and for provision of services to Customer.

6.3. Feedback. Vendor has not agreed to and does not agree to treat as confidential any Feedback that Customer or Users provide to Vendor, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Vendor’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Notwithstanding the provisions of Section 7 below, Feedback will not be considered Confidential Information.

7. CONFIDENTIALITY
Confidential Information means and includes any information that:

(a) is disclosed by one Party (the Disclosing Party) to the other (the Receiving Party) in written, graphic, machine-readable or other tangible form and is marked “Confidential,” “Proprietary,” “Trade Secret” or in some other manner to indicate its confidential nature, or, if orally disclosed or obtained by observation, is identified as confidential at the time of disclosure and confirmed in writing to have been a trade secret or otherwise confidential within thirty (30) days of disclosure or observation; or

(b) the Receiving Party should, in the exercise of reasonable judgment, know is confidential to the Disclosing Party.
Notwithstanding the foregoing, Confidential Information does not include information that:

(d) is independently developed by Receiving Party without use of or reference to the Disclosing Party’s Confidential Information;

(e) becomes known publicly, before or after disclosure, other than as a result of the Receiving Party’s improper action or inaction; or

(f) is approved for release in writing by the Disclosing Party.

Each party is on notice that the Confidential Information may include the other party’s valuable trade secrets.

7.1. Non-disclosure. The Receiving Party will not use Confidential Information for any purpose other than in furtherance of this Agreement and in connection with its rights and obligations under this Agreement (the Purpose). The Receiving Party:

(a) will not disclose Confidential Information to any employee or contractor of the Receiving Party unless such person needs access in order to facilitate the Purpose and is informed of the confidential nature of the Confidential Information and obligated to maintain its confidentiality; and

(b) will not disclose Confidential Information to any other third party without the Disclosing Party’s prior written consent.
Without limiting the generality of the foregoing, the Receiving Party will protect Confidential Information with the same degree of care it uses to protect its own Confidential Information of similar nature and importance, but with no less than reasonable care. The Receiving Party will promptly notify the Disclosing Party of any misuse or misappropriation of Confidential Information that comes to the Receiving Party’s attention. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information as required by Applicable Law or by proper legal or governmental authority, provided that the Receiving Party gives the Disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperates with the Disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at the Disclosing Party’s expense.

7.2. Injunction. The Receiving Party agrees that breach of this Section 7 would cause the Disclosing Party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the Disclosing Party will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

7.3. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 7.1 above will terminate three years after the date of disclosure; provided that such obligations related to Confidential Information constituting Disclosing Party’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to Applicable Law. Upon termination of this Agreement, the Receiving Party will destroy all copies of Confidential Information and at request of Disclosing Party, confirm such destruction in writing.

7.4. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant any rights thereto except the right to use in accordance with Section 7.1. Each party will retain all right, title, and interest in and to all of its respective Confidential Information.

7.5. Exception & Immunity. Pursuant to the United States’ Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), each party is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:

(a) Immunity. An individual shall not be held criminally or civilly liable under any U.S. Federal or State trade secret law for the disclosure of a trade secret that:

(i) is made: (A) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (B) solely for the purpose of reporting or investigating a suspected violation of law; or

(ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; and

(b) Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual:

(i) files any document containing the trade secret under seal; and

(ii) does not disclose the trade secret, except pursuant to court order.

8. WARRANTIES

8.1. From Vendor. Vendor warrants that it is the owner of, or otherwise has all right, title and interest in and to the System, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement. In the event of a breach of this warranty Vendor, at its own expense, will promptly take one of the following actions, chosen by Vendor in its sole discretion:

(a) secure for Customer the right to continue using the System;

(b) replace or modify the System to make it non-infringing; or

(c) if (a) and (b) are not commercially reasonable in Vendor’s sole discretion, terminate the infringing features of the System and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination.

Vendor does not provide any representation, warranty, or covenant, and will have no liability, with respect to any infringement or alleged infringement that is based upon, arises out of, or would not have occurred but for:

(i) Customer’s operation or use of the System with any content, software, hardware, product, or apparatus not set forth in this Agreement, the Documentation, or otherwise approved in writing by Vendor;

(ii) Customer’s use of any third party software other than in accordance with the license agreement for such third party software; or

(iii) Customer’s operation or use of the System not in compliance with this Agreement, the Documentation, or otherwise approved in writing by Vendor.

8.2. From Customer. Customer warrants that:

(a) it is a properly organized business entity, in good standing in the locations where it operates or conducts business, and has the corporate power and authority to enter and perform its obligations under this Agreement;

(b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System;

(c) it and its performance of its duties under this Agreement shall in no way conflict with or violate any Applicable Law or any other agreement of Vendor;

(d) it has obtained all required consents, licenses, approvals, and/or permissions to authorize it to enter and perform its obligations under this Agreement;

(e) it is authorized to use and access the information and Customer Data that it inputs to the System, and the processed information and Customer Data that is made available to Customer through its use of the System; and

(f) it has satisfied itself that the System meets its business needs and is suitable for the purposes for which the System is used.

8.3. Warranty Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. VENDOR DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE SERVICES WILL BE ACCURATE, WITHOUT INTERRUPTION, OR ERROR-FREE.

8.4. Acknowledgement. Vendor has no responsibility to any person other than Customer and nothing in this Agreement confers, or purports to confer, a benefit on any person other than Customer. If Customer uses the System or accesses the Platform on behalf of or for the benefit of anyone other than Customer (whether a body corporate or otherwise), Customer agrees that:

(a) Customer is responsible for ensuring that it has the right to do so;

(b) Customer is responsible for authorizing any person who is given access to information or Customer Data; and

(c) Vendor has no obligation to provide any person access to such information or Customer Data without Customer’s authorization and may refer any requests for information to Customer to address.

9. INDEMNITIES

9.1. From Customer. Customer will defend, indemnify, and hold harmless Vendor and the Vendor Associates against any third-party claim, suit, or proceeding (to include liabilities, damages, losses, costs, expenses, and associated reasonable attorneys’ fees, hereinafter Claims), including without limitation Claims by Users or by Customer's employees, as well as by Customer’s own customers, arising out of or related to:

(i) Customer's alleged or actual use of, misuse of, or failure to use the System or the Platform; or

(ii) infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Customer’s account, including without limitation by Customer Data.
Customer’s obligations set forth in this Section 9 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Vendor will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations.

9.2. From Vendor. Vendor will defend, indemnify, and hold harmless Customer against Claims arising out of Vendor’s breach of its warranty as set forth in Section 8.1. This Section 9.2 sets forth Customer’s exclusive remedy with respect to any Claim for Vendor’s alleged violation of any intellectual property or other rights of third parties.

9.3. Indemnification Procedures. Notwithstanding anything to the contrary in the Agreement, the parties agree that the following indemnification procedure will apply: The indemnified party will provide prompt written notice to the indemnifying party of any Claim(s) for which the indemnified party will seek indemnification under this Agreement and will provide reasonable assistance to the indemnifying party upon the indemnifying party’s reasonable request. The indemnifying party will have the right to defend and compromise such Claim(s) at the indemnifying party’s expense for the benefit of the indemnified party; provided, however, the indemnifying party will not have the right to obligate the indemnified party in any respect in connection with any such compromise without the written consent of the indemnified party. Notwithstanding the foregoing, if the indemnifying party fails to assume its obligation to defend, the indemnified party may do so to protect its interests and the indemnifying party will reimburse all costs incurred by the indemnified party in connection with such defense.

10. LIMITATION OF LIABILITY

10.1. Dissatisfaction. If Customer is not satisfied with the System, Customer’s sole and exclusive remedy is to terminate this Agreement in accordance with Section 11. This Section 10.1 shall not preclude any Customer claim, whether sounding in contract, tort or otherwise, arising under or related to this Agreement.

10.2. Dollar Cap. EACH PARTIES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE SUBSCRIPTION FEES PAID BY CUSTOMER TO VENDOR IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE FIRST CLAIM.

10.3. Exclusion of Consequential etc. Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, LOST PROFITS, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.

10.4. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS SECTION 10 APPLY:

(a) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE;

(b) EVEN IF THE APPLICABLE PARTY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND

(c) EVEN IF REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If Applicable Law limits the application of the provisions of this Section 10, each party’s liability will be limited in accordance with Section 10 to the maximum extent permissible. For the avoidance of doubt, Vendor’s liability limits and other rights set forth in this Section 10 apply likewise to Vendor’s Associates.

10.5 No limitation for fraud, etc. Nothing in this section 10 limits a party’s liability for fraud, willful misconduct, or gross negligence.

11. TRIAL PERIOD AND SUBSCRIPTION PERIOD; TERM AND TERMINATION

11.1. Trial Period and Subscription Period. Customer may evaluate the System without obligation to continue to use the System for a period of 14 days (Trial Period). If Customer chooses to continue using the System after the Trial Period, Customer will be charged the Subscription Fee from the first day following the end of the Trial Period. Vendor will continue to bill Customer in advance for use of the System in subsequent Subscription Period(s), until such time as Customer chooses to discontinue using the System by cancelling its subscription in the ‘Admin’ section of the System.

11.2. Term; Termination for Convenience. As defined above, the Term of this Agreement commences on the Effective Date and continues for the Trial Period and the Subscription Period(s), as applicable. At the end of each Subscription Period, this Agreement will automatically continue for another Subscription Period, provided Customer pays the Subscription Fees for that Subscription Period and unless a party terminates this Agreement by giving at least 30 days’ notice prior to the commencement of the next Subscription Period. If either party terminates this Agreement pursuant to the previous sentence, Customer shall remain liable to pay all Subscription Fees for the Subscription Period during which the Agreement is terminated (I.e., up to what would have been the commencement of the next Subscription Period) with the exception of material breach by Vendor.

11.3. Termination for Cause. In the event of a material breach of this Agreement, the non-breaching party may terminate this Agreement upon 30 days’ prior written notice to the breaching party, provided that this Agreement shall not terminate in the event that the breach is cured within such 30 day period. Vendor may additionally terminate this Agreement immediately by written notice if:

(a) Customer or Customer’s business becomes bankrupt or insolvent, goes into liquidation, makes any arrangement with its creditors, or becomes subject to any similar bankruptcy, insolvency, liquidation or winding-up event in any jurisdiction;

(b) Customer breaches Sections 5.1 or 5.2; or

11.4. Suspension. Without limiting any rights under Section 11.3, if any of the circumstances set out in Section 11.3 occur in relation to Customer, Vendor may at its sole discretion:

(a) suspend for any definite or indefinite period of time, Customer’s use of the System and the Platform;

(b) suspend or terminate access to all or any Customer Data; and

(c) take any of the actions in Section 11.3 and sub-paragraphs (a) and (b) of this Section 11.4 in respect of any or all other persons whom Customer has authorized to have access to Customer information or Customer Data.

11.5. Effects of Termination. Upon termination of this Agreement, Customer will cease all use of the System and Platform and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement:

(a) any obligation of Customer to pay fees incurred before termination;

(b) Sections 6 (IP & Feedback), 7 (Confidential Information), 8.3 (Warranty Disclaimers), 9 (Indemnification), 10 (Limitation of Liability), 11.5 (Effects of Termination), 12 (Miscellaneous); and

12. MISCELLANEOUS

12.1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.

12.2. Customer agrees to receive notices from Vendor pertaining to administration of the System or otherwise relating to Customer’s use of the System to Customer’s designated primary email contact point(s) provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pertaining to administration of the System or otherwise relating to Customer’s use of the System to Xakia at legal@xakiatech.com, and such notices will be deemed received 72 hours after they are sent, and a non-delivery notification has not been received by Customer.

12.3. Force Majeure. No delay, failure, or default (except the payment of money owed) will constitute a breach of this Agreement to the extent it is caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.

12.4. Assignment & Successors. Neither party may assign this Agreement or any of its rights or obligations hereunder without the other party’s express written consent, provided that no such consent will be necessary for Vendor in cases of merger, reorganization, or sale of substantially all of its assets. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

12.5. Severability. To the extent permitted by Applicable Law, the parties hereby waive any provision of law that would render any section of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by Applicable Law, and the remaining provisions of this Agreement will continue in full force and effect.

12.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

12.7. Choice of Law & Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, including without limitation applicable federal law, without reference to:

(i) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties;

(ii) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or

(iii) other international laws. Subject to Section 12.8, the parties' consent to the personal and exclusive jurisdiction of the federal and state courts of Newcastle County, Delaware. This Section 12.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.

12.8. Conflicts. In the event of any conflict between this Agreement and any Vendor policy posted online, including without limitation the AUP or Privacy Policy, the terms of this Agreement will govern.

12.9. Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship. The headings of Sections of the Agreement are for convenience and are not to be used in interpreting the Agreement. As used in this Agreement, the word “including” means “including but not limited to”.

12.10. Technology Export. Customer will not:

(a) permit any third party to access or use the System in violation of any U.S. law or regulation; or

(b) export any software provided by Vendor or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations.

Without limiting the generality of the foregoing, Customer will not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo as delineated by U.S. Treasury and memorialized on its website: http//home.treasure.gov/policy-issue.

12.11. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions, whether written or oral, with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications in executing this Agreement.

12.12. Amendment. Vendor may amend this Agreement from time to time by posting an amended version at its Website and sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the Proposed Amendment Date) unless Customer first gives Vendor written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next Subscription Period following the Proposed Amendment Date (unless Customer first terminates this Agreement pursuant to Section 11, Term & Termination). Customer’s continued use of the System following the effective date of an amendment will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party. Notwithstanding the foregoing provisions of this Section

12.12, Vendor may revise the Privacy Policy and AUP at any time by posting a new version of either at the Website, and such new version will become effective on the date it is posted.

12.13. No Legal Advice. Customer agrees that use of the System does not constitute the receipt of legal advice from Vendor. If Customer has a legal question, Customer shall make an independent determination as to whether it should seek independent legal advice from independent counsel.

Contact us

For further information about our Terms of Use or privacy practices, to make a request in relation to your personal information or make a complaint, please contact us using the details set out below:

By mail:
4700 Belleview, Ste 404
Kansas City MO 64112
United States

By email:
legal@xakiatech.com

By phone: ‭
+1 (816) 208-0144‬‬‬‬‬‬‬‬‬‬‬ ‬‬

Effective: 01 August 2022