Terms of Service

XPOZ Terms of Service

Last Updated: January 1, 2023

1. Definitions

“Affiliate” means any entity that directly or indirectly controls or is controlled by, or is under common control with, the party specified. For purposes of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.

“Beta Offerings” means Services that are identified as alpha, beta, not generally available, limited release, developer preview, or any similar Services offered by XPOZ.

“Customer Data” means data and other information made available by you to XPOZ in connection with your use of the Services under this Agreement.

“Customer Services” means any software application or other products and services provided by you and used in connection with your use of the Services under this Agreement. If applicable, Customer Services includes sources from which you choose to retrieve Customer Data and destinations to which you choose to transmit Customer Data using the Services.

“Documentation” means XPOZ’s documentation, including any usage guides and policies, for the Services, the current version of which is available on the website.

“End User” means any user of the Services, including via any Customer Services.

“Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

“Order Form” means an ordering document between you and XPOZ, or any of their Affiliates, that specifies mutually agreed upon rates for certain Services and any commercial terms related thereto.

“Services” means the products and services provided by XPOZ or its Affiliates, as applicable, that (a) you use, including, without limitation, products and services that are on a trial basis or otherwise free of charge or (b) you order under an Order Form. Services excludes any Customer Services and Third Party Services.

“Service Usage Data” means any data that is derived from the use of the Services that does not directly or indirectly identify you, your End Users, or any natural person and includes (a) data such as volumes, frequencies, bounce rates, and Service performance data and (b) subject to any restrictions under applicable law or regulation, data that is anonymized, de-identified, and/or aggregated such that it could no longer directly or indirectly identify you, your End Users, or any natural person.

“Support Terms” means the support-related terms for the Services, as described in the contract of the customer.

“Third Party Services” means any products, services, or software components that are purchased by you from XPOZ, but provided, or otherwise made available, by a third party (i.e., a party other than XPOZ). Third Party Services are governed by a separate agreement between you and the third-party provider.

“XPOZ Acceptable Use Policy” means certain terms relating to the use of the Services, including the Service and Country Specific Requirements set forth therein, as described in the contract of the customer.

“XPOZ Data Protection Addendum” means the personal data processing-related terms for the Services, the current version of which is available in the commercial contract of the customer.

“XPOZ Security Overview” means the security related terms for the Services, as described in the contract of the customer.

“XPOZ SLA” means the service level agreement for the Services, as described in the contract of the customer.

Any capitalized term not defined in this Section 1 will have the meaning provided in this Agreement.

2. Services

2.1 Provision of the Services.
XPOZ will: (a) provide the Services to you pursuant to this Agreement, the applicable Documentation, and any applicable Order Form(s); (b) comply with the XPOZ SLA; (c) comply with the security terms for the Services as set forth in the XPOZ Security Overview; (d) provide the Services in accordance with laws applicable to XPOZ’s provision of the Services to its customers generally (i.e., without regard for your particular use of the Services), subject to your use of the Services in accordance with this Agreement, the applicable Documentation, and any applicable Order Form(s); (e) make commercially reasonable efforts to use industry standard measures designed to scan, detect, and delete Malicious Code; (f) if applicable, use trained, qualified personnel to provide the Services; and (g) use commercially reasonable efforts to provide you with applicable support for the Services as described in the Support Terms.

2.2 Customer Responsibilities.
You will: (a) be solely responsible for all use of the Services and Documentation under your account and the Customer Services; (b) not transfer, resell, lease, license, or otherwise make available the Services to third parties (except to make the Services available to your End Users) or offer them on a standalone basis; (c) use the Services only in accordance with this Agreement, the XPOZ Acceptable Use Policy, the applicable Documentation, any applicable Order Form(s), and applicable law or regulation; (d) be solely responsible for all acts, omissions, and activities of your End Users, including their compliance with this Agreement, the XPOZ Acceptable Use Policy, the applicable Documentation, any applicable Order Form(s), and applicable law or regulation; (e) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify XPOZ promptly of any such unauthorized access or use; (f) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers; and (g) comply with your representations and warranties set forth in Section 5 (Representations, Warranties, and Disclaimer).

2.3 Suspension of Services.
XPOZ may suspend the Services upon written notice to you if XPOZ, in good faith, determines: (a) that you or your End Users materially breach (or XPOZ, in good faith, believes that you or your End Users have materially breached) the XPOZ Acceptable Use Policy; (b) there is an unusual and material spike or increase in your use of the Services and that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the Services; (c) that its provision of the Services is prohibited by applicable law or regulation; (d) there is any use of the Services by you or your End Users that threatens the security, integrity, or availability of the Services; or (e) that information in your account is untrue, inaccurate, or incomplete. You remain responsible for the Fees (as defined in Section 3.3 (Payment Terms)).

2.4 Changes to the Services.
You acknowledge that the features and functions of the Services may change over time; provided, however, XPOZ will not materially decrease the overall functionality of the Services. It is your responsibility to ensure the Customer Services are compatible with the Services. XPOZ endeavors to avoid changes to the Services that are not backwards compatible, however, if any such changes become necessary, XPOZ will use commercially reasonable efforts to notify you at least sixty (60) days prior to implementation. In the event XPOZ makes a non-backwards compatible change to certain Services and such change materially and negatively impacts your use of the Services (“Adverse Change”), (a) you will notify XPOZ of the Adverse Change and (b) XPOZ may agree to work with you to resolve or otherwise address the Adverse Change, except where XPOZ, in its sole discretion, has determined that an Adverse Change is required for security reasons, by telecommunications providers, or to comply with applicable law or regulation.

2.5 Beta Offerings.
From time to time, XPOZ may make available Beta Offerings. You may, in your sole discretion, choose to use a Beta Offering. XPOZ may discontinue a Beta Offering at any time, in its sole discretion, or decide not to make a Beta Offering generally available. To the extent you use any Beta Offerings that are only made available to a limited number of customers on an invitation basis in a non-public or private manner (collectively, "Private Beta Offerings"), the additional terms in Section 10.1 (Private Beta Offerings) apply to you.

3. Fees and Payment Terms

3.1 Fees.
You agree to pay the fees set forth in the applicable Order Form(s). If you use any Services not set forth in the applicable Order Form(s), you will be charged the applicable rates available in the commercial contract of the customer.

3.2 Taxes and Communications Surcharges

3.2.1 Taxes.
All fees are exclusive of any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes (collectively, “Taxes”). You will pay all Taxes in connection with this Agreement, excluding any taxes based on XPOZ’s net income, property, or employees. If you are required by applicable law to withhold any Taxes from payments owed to XPOZ, you will reduce or eliminate such withheld Taxes upon receipt of the appropriate tax certificate or document provided by XPOZ. You will provide XPOZ with proof of payment of any withheld Taxes to the appropriate authority. Taxes will be shown as a separate line item on an invoice.

3.2.2 Communications Charges.
If applicable, all fees are exclusive of any applicable communications service or telecommunication provider (e.g., carrier) fees or surcharges (collectively, “Communications Surcharges”). You will pay all Communications Surcharges in connection with your use of the Services. Communications Surcharges will be shown as a separate line item on an invoice. You will pay all costs, fines, or penalties that are imposed on XPOZ by a government or regulatory body or a telecommunications provider as a result of your or your End Users’ use of the Services.

3.2.3 Exemption.
If you are exempt from paying certain Taxes or Communications Surcharges, you will provide the necessary exemption information as requested by XPOZ or a valid exemption certificate issued by the appropriate authority via e-mail to taxforms@xpoz.com. You will be exempt on a going-forward basis once XPOZ has approved your exemption request. If the appropriate authority determines, at any time, that you are not exempt from paying any Taxes or Communications Surcharges, you will promptly pay such Taxes or Communications Surcharges to XPOZ, plus any applicable interest or penalties.

3.3 Payment Terms.
Except as otherwise expressly set forth herein, payment obligations are non-cancelable and fees, Taxes, and Communications Surcharges (collectively, “Fees”), once paid, are non-refundable. Except as otherwise set forth in the applicable Order Form(s) and subject to Section 3.3.3 (Payment Disputes), You will pay the Fees due hereunder in accordance with the following applicable payment method:

3.3.1 Credit Card.
If you elect to add funds to your account by credit card and use such funds to pay the Fees due, you are responsible for ensuring such funds cover the Fees due. If your account does not have sufficient funds or your credit card declines a charge for the Fees due, XPOZ may suspend the provision of the Services to all of your accounts until the Fees due are paid in full. You are prohibited from creating new accounts until the Fees due are paid in full.

3.3.2 Invoicing.
If you elect to receive invoices and XPOZ approves you for the same, then, except as otherwise set forth in the applicable Order Form(s), (a) invoices will be sent to you each month, via email to the email address(es) you designate in your account and (b) you will pay the Fees due within thirty (30) days of the date of the invoice. Except as otherwise set forth in the applicable Order Form(s) or an invoice to the extent you procure the Services without any applicable Order Form(s), the Fees are payable in United States dollars. If you fail to pay the Fees and remedy such failure within fifteen (15) days of the date XPOZ provides you with written notice of the same, then XPOZ may (i) assess and you will pay a late fee of the lesser of 1.5% per month or the maximum amount allowable by law and (ii) suspend the provision of the Services to all of your accounts until the Fees due are paid in full. You are prohibited from creating new accounts until the Fees due are paid in full.

3.3.3 Payment Disputes.
You will notify XPOZ in writing within sixty (60) days of the date XPOZ bills you for any Fees that you wish to dispute. You may withhold the disputed Fees until the dispute is resolved. Where you are disputing any Fees, you must act reasonably and in good faith and will cooperate diligently with XPOZ to resolve the dispute. XPOZ will not charge you a late fee or suspend the provision of the Services for unpaid Fees that are in dispute, unless you fail to cooperate diligently with XPOZ or XPOZ determines the dispute is not reasonable or brought in good faith by you.

3.4 Fulfillment Resale.
If you are purchasing the Services through a third-party fulfillment reseller that is solely responsible for facilitating payments to XPOZ for your use of the Services (“Fulfillment Reseller”), you will pay all fees due for your use of the Services directly to the Fulfillment Reseller in accordance with your agreement with the Fulfillment Reseller (“Fulfillment Agreement”). If you breach your payment obligations to the Fulfillment Reseller and fail to cure such breach within the time period specified in the Fulfillment Agreement, the Fulfillment Reseller or XPOZ may suspend the provision of the Services to you upon written notice.

4. Ownership, Customer Data, and Confidentiality

4.1 Ownership Rights.
As between the parties, XPOZ exclusively owns and reserves all right, title, and interest in and to the Services, the Documentation, XPOZ's Confidential Information (as defined in Section 4.3.1 (Definition)), Service Usage Data, and any feedback or suggestions you or your End Users provide regarding the Services. As between the parties, you exclusively own and reserve all right, title, and interest in and to the Customer Services, your Confidential Information, and Customer Data, subject to XPOZ’s rights to process Customer Data in accordance with this Agreement.

4.2 Customer Data.
You grant XPOZ and its Affiliates the right to process Customer Data as necessary to provide the Services in a manner that is consistent with this Agreement and the XPOZ Data Protection Addendum. You are responsible for the quality and integrity of Customer Data.

4.3 Confidentiality

4.3.1 Definition.
“Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by either party (“Disclosing Party”) to the other party (“Receiving Party”) that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding the disclosure, including, without limitation, this Agreement, Order Form(s), Customer Data, security reports and attestations, audit reports, customer lists, pricing, concepts, processes, plans, designs and other strategies, “know how”, inventions, and financial, technical, or other business information and materials of Disclosing Party and its Affiliates. Confidential Information does not include any information which: (a) is publicly available through no breach of this Agreement or fault of Receiving Party; (b) was properly known by Receiving Party, and to its knowledge, without any restriction, prior to disclosure by Disclosing Party; (c) was properly disclosed to Receiving Party, and to its knowledge, without any restriction, by another person without violation of Disclosing Party's rights; or (d) is independently developed by Receiving Party without use of or reference to the Confidential Information of Disclosing Party.

4.3.2 Use and Disclosure.
Except as otherwise authorized by Disclosing Party in writing, Receiving Party will not (a) use any Confidential Information of Disclosing Party for any purpose outside of exercising Receiving Party’s rights or fulfilling its obligations under this Agreement and (b) disclose or make Confidential Information of Disclosing Party available to any party, except to Receiving Party's Affiliates, and Receiving Party's and its Affiliates’ respective employees, legal counsel, accountants, contractors, and in XPOZ’s case, subcontractors (collectively, “Representatives”) who have a “need to know” as necessary for Receiving Party to exercise its rights or fulfill its obligations under this Agreement. Receiving Party will be responsible for its Representatives’ compliance with this Section 4.3. Representatives will be legally bound to protect Confidential Information of Disclosing Party under terms of confidentiality that are at least as protective as the terms of this Section 4.3. Receiving Party will protect the confidentiality of Confidential Information of Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information but in no event less than reasonable care. Notwithstanding the foregoing, you may disclose XPOZ’s SOC2 or similar report, which will constitute XPOZ’s Confidential Information, only to your End Users or your End Users' employee or contract worker who has a “need to know” for such SOC2 or similar report and is legally bound to terms of confidentiality that are at least as protective as the terms of this Section 4.3.

4.3.3 Compelled Disclosure.
Receiving Party may disclose Confidential Information of Disclosing Party if so required pursuant to a regulation, law, subpoena, or court order (collectively, “Compelled Disclosures”), provided Receiving Party gives Disclosing Party written notice of a Compelled Disclosure (to the extent legally permitted). Receiving Party will provide reasonable cooperation to Disclosing Party in connection with a Compelled Disclosure at Disclosing Party’s sole expense.

4.3.4 Injunctive Relief.
The parties expressly acknowledge and agree that no adequate remedy may exist at law for an actual or threatened breach of this Section 4.3 and that, in the event of an actual or threatened breach of the provisions of this Section 4.3, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.

4.4 Use of Marks.
You grant XPOZ the right to use and display your name, logo, and a description of your use case(s) on XPOZ’s website, in earnings releases and calls, and in marketing and promotional materials, subject to your standard trademark usage guidelines that you expressly provide to XPOZ.

5. Representations, Warranties, and Disclaimer

5.1 Power and Authority Representation.
Each party represents and warrants that it has validly accepted or entered into this Agreement and has the legal power to do so.

5.2 Anti-Corruption and International Trade Laws.
Each party (a) warrants that it will comply with all applicable anti-corruption, anti-money laundering, economic and trade sanctions, export controls, and other international trade laws, regulations, and governmental orders (collectively, “Anti-Corruption and Trade Laws”) in the jurisdictions that apply directly or indirectly to the Services, including, without limitation, the United States, and (b) represents that it has not made, offered, promised to make , or authorized any payment or anything of value in violation of Anti-Corruption and Trade Laws. You will promptly notify XPOZ in writing of any actual or potential violation of Anti-Corruption and Trade Laws in connection with the use of the Services and take all appropriate steps to remedy or resolve such violations, including any steps requested by XPOZ. If applicable, you represent that you have obtained, and warrant that you will continue to obtain, all licenses or other authorizations required to export, re-export, or transfer the Services. Each party represents that it (and in your case, also your End Users) is not on any government prohibited, denied, or unverified-party, sanctions, debarment, or exclusion list or export-controlled related restricted party list (collectively, “Sanctions Lists”). You will immediately (i) discontinue your use of the Services if you become placed on any Sanctions List and (ii) remove your End Users’ access to the Services if your End Users become placed on any Sanctions List. You represent that you have not, and warrant that you will not, export, re-export, or transfer the Services to an entity on any Sanctions List without prior authorization from the applicable governmental authority. Notwithstanding anything to the contrary in this Agreement, either party may terminate this Agreement immediately upon written notice to the other party if the other party is in breach of its obligations in this Section 5.2. If your account is blocked because it is operating in a country or region prohibited under this Section 5.2, you will receive notice of your account being inoperable when you attempt to log into your account in such prohibited country or region.

5.3 Consents and Permissions.
You represent and warrant that you have provided and will continue to provide adequate notices, and that you have obtained and will continue to obtain the necessary permissions and consents, to provide Customer Data to XPOZ for processing pursuant to Section 4.2 (Customer Data).

5.4 Services.
XPOZ represents and warrants that the Services perform materially in accordance with the applicable Documentation. Your exclusive remedy for a breach of this Section 5.4 will be, at XPOZ’s option, to (a) remediate any material non-conformity or (b) refund you the Fees paid for the time period during which the affected Services do not comply with this Section 5.4.

5.5 DISCLAIMER.
WITHOUT LIMITING A PARTY’S EXPRESS WARRANTIES AND OBLIGATIONS HEREUNDER, AND EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS,” AND NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. XPOZ ADDITIONALLY DISCLAIMS ALL WARRANTIES RELATED TO TELECOMMUNICATIONS PROVIDERS. YOU ACKNOWLEDGE THE INTERNET AND TELECOMMUNICATIONS PROVIDERS’ NETWORKS ARE INHERENTLY INSECURE AND THAT XPOZ WILL HAVE NO LIABILITY FOR ANY CHANGES TO, INTERCEPTION OF, OR LOSS OF CUSTOMER DATA WHILE IN TRANSIT VIA THE INTERNET OR A TELECOMMUNICATIONS PROVIDER’S NETWORK. BETA OFFERINGS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. XPOZ MAKES NO WARRANTIES AND WILL HAVE NO LIABILITY FOR ANY BETA OFFERINGS, CUSTOMER SERVICES, OR THIRD PARTY SERVICES WHATSOEVER.

6. Mutual Indemnification

6.1 Indemnification by XPOZ

6.1.1 Scope of Indemnification.
XPOZ will defend you, your Affiliates, and each of their directors, officers, and employees (collectively, “Customer Indemnified Parties”) from and against any claim, demand, suit, or proceeding made or brought against a Customer Indemnified Party by a third party alleging that XPOZ’s provision of the Services infringes or misappropriates such third party’s intellectual property rights (“XPOZ Indemnifiable Claim”). XPOZ will indemnify you from any fines, penalties, damages, attorneys’ fees, and costs awarded against a Customer Indemnified Party or for settlement amounts approved by XPOZ for a XPOZ Indemnifiable Claim.

6.1.2 Infringement Options.
If XPOZ’s provision of the Services has become, or in XPOZ’s opinion is likely to become, the subject of any XPOZ Indemnifiable Claim for third-party intellectual property rights infringement or misappropriation, XPOZ may at its option and expense: (a) procure the right to continue to provide the Services as set forth herein; (b) modify the Services to make them non-infringing; or (c) if the foregoing options are not reasonably practicable, terminate this Agreement, or, if applicable, terminate the Services that are the subject of any XPOZ Indemnifiable Claim for third-party intellectual property rights infringement or misappropriation, and refund you any unused pre-paid Fees.

6.1.3 Limitations.
XPOZ will have no liability or obligation under this Section 6.1 with respect to any XPOZ Indemnifiable Claim arising out of (a) your use of the Services in breach of this Agreement; (b) the combination, operation, or use of the Services with other applications, portions of applications, products, or services, including, without limitation, the Customer Services or Third Party Services, where the Services would not by themselves be infringing; or (c) Services for which there is no charge or Beta Offerings.

6.2 Indemnification by Customer.
You will defend XPOZ, its Affiliates, and each of their directors, officers, and employees (collectively, “XPOZ Indemnified Parties”) from and against any claim, demand, suit, or proceeding made or brought against a XPOZ Indemnified Party by a third party alleging or arising out of: (a) your or your End Users’ breach of Section 2.2 (Customer Responsibilities) or (b) any Customer Services infringing or misappropriating such third party’s intellectual property rights (collectively, “Customer Indemnifiable Claims”). You will indemnify XPOZ from any fines, penalties, damages, attorneys’ fees, and costs awarded against a XPOZ Indemnified Party or for settlement amounts that you approve for a Customer Indemnifiable Claim.

6.3 Conditions of Indemnification.
As a condition of the foregoing indemnification obligations: (a) the indemnified party (“Indemnified Party”) will promptly notify the indemnifying party (“Indemnifying Party”) of any Customer Indemnifiable Claim or XPOZ Indemnifiable Claim (individually or collectively referred to herein as a “Claim”)in writing; provided, however, that the failure to give prompt written notice will not relieve Indemnifying Party of its obligations hereunder, except to the extent that Indemnifying Party was actually and materially prejudiced by such failure; (b) Indemnifying Party will have the sole authority to defend or settle a Claim; and (c) Indemnified Party will reasonably cooperate with Indemnifying Party in connection with Indemnifying Party’s activities hereunder, at Indemnifying Party’s expense. Indemnified Party reserves the right, at its own expense, to participate in the defense of a Claim. Notwithstanding anything herein to the contrary, Indemnifying Party will not settle any Claim for which it has an obligation to indemnify under this Section 6 admitting liability or fault on behalf of Indemnified Party, nor create any obligation on behalf of Indemnified Party without Indemnified Party’s prior written consent, which will not be unreasonably withheld, conditioned, or delayed.

6.4 Exclusive Remedy.
This Section 6 states Indemnifying Party’s sole liability to, and Indemnified Party’s exclusive remedy against, the other party for any third-party claims.

7. Limitation of Liability

7.1 LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES.
IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, LOST DATA, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

7.2 LIMITATION OF LIABILITY.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID OR PAYABLE BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.

7.3 EXCEPTIONS TO THE LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 7.1 (LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES) AND SECTION 7.2 (LIMITATION OF LIABILITY), THE LIMITATIONS IN SECTION 7.1 AND SECTION 7.2 DO NOT APPLY TO (a) YOUR BREACH OF SECTION 2.2 (CUSTOMER RESPONSIBILITIES); (b) YOUR AND YOUR AFFILIATES’ BREACH OF SECTION 3 (FEES AND PAYMENT TERMS); OR (c) AMOUNTS PAYABLE PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6 (MUTUAL INDEMNIFICATION).

8. Term, Termination, and Survival

8.1 Agreement Term.
This Agreement will commence on the Effective Date and continue until terminated in accordance with Section 8.2 (Termination) (“Term”).

8.2 Termination

8.2.1 For Convenience.
Either party may terminate this Agreement for convenience by providing the other party with at least thirty (30) days prior written notice. Notwithstanding the preceding sentence, if there are any Order Form(s) in effect, this Agreement will not terminate until all such Order Form(s) have expired or have been terminated in accordance with the terms therein.

8.2.2 Material Breach.
Either party may terminate this Agreement (including all Order Form(s) and Services that are in effect) in the event the other party commits any material breach of this Agreement and fails to remedy such breach within fifteen (15) days of the date of written notice of such breach. For the avoidance of doubt, a breach of the XPOZ Acceptable Use Policy will be considered a material breach of this Agreement. If XPOZ terminates this Agreement because of your material breach, then XPOZ will also close your accounts.

8.2.3 Insolvency.
Subject to applicable law, either party may terminate this Agreement immediately by providing written notice in the event of the other party’s liquidation, commencement of dissolution proceedings, or any other proceeding relating to a receivership, failure to continue business, assignment for the benefit of creditors, or becoming the subject of bankruptcy.

8.3 Survival.
Upon termination of this Agreement, the terms of this Section 8.3 and the terms of the following Sections will survive: Section 2.1(c) (regarding the XPOZ Security Overview), Section 3 (Fees and Payment Terms), Section 4 (Ownership, Customer Data, and Confidentiality), Section 5.5 (Disclaimer), Section 6 (Mutual Indemnification), Section 7 (Limitation of Liability), Section 9 (General), and any applicable terms in Section 10 (Additional Terms).

9. General

9.1 Affiliates

9.1.1 Affiliates of Customer.
Your Affiliates may use the Services under and in accordance with the terms of this Agreement. You represent and warrant that you have sufficient rights and the authority to make this Agreement binding upon each of your Affiliates. You and each of your Affiliates will be jointly and severally liable for the acts and omissions of such Affiliate in connection with this Agreement and such Affiliate’s use of the Services. Only you will bring any claim against XPOZ on behalf of your Affiliates.

9.1.2 Affiliates of XPOZ.
An Affiliate of XPOZ may provide the Services, or a portion thereof, to you or your Affiliates, as applicable, in accordance with this Agreement and any applicable Order Form(s) with such Affiliate of XPOZ. XPOZ will (a) be responsible for the Services its Affiliates provide and (b) not be relieved of its obligations under this Agreement if its Affiliates provide the Services or a portion thereof. XPOZ will enforce the terms of this Agreement relating to the Services its Affiliates provide. Notwithstanding anything to the contrary in this Agreement, an Affiliate of XPOZ may directly bill you or your Affiliates, as applicable, (i) for the Services it provides or (ii) solely as a billing agent for XPOZ or the Affiliate of XPOZ providing the Services, as applicable.

9.2 Assignment.
Neither party may assign or otherwise transfer this Agreement or any applicable Order Form(s), in whole or in part, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, either party may assign this Agreement or any applicable Order Form(s), in whole or in part, without consent to (a) a successor to all or part of its assets or business or (b) an Affiliate. Any attempted assignment or transfer by either party in violation hereof will be void. Subject to the foregoing, this Agreement and any applicable Order Form(s) will be binding on the parties and their respective successors and permitted assigns.

9.3 Relationship.
Each party is an independent contractor in the performance of each and every part of this Agreement. Nothing in this Agreement is intended to create or will be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Each party will be solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith and for any and all claims, liabilities, damages, or debts of any type whatsoever that may arise on account of its activities, or those of its employees and agents, in the performance of this Agreement. Neither party has the authority to commit the other party in any way and will not attempt to do so or imply that it has the right to do so.

9.4 No Third-Party Beneficiaries.
This Agreement does not confer any benefits on any third party (including your End Users or an Affiliate) unless it expressly states that it does.

9.5 Notices.
Notices to XPOZ will be provided via email to legalnotices@xpoz.com. All notices to you will be provided via email to the relevant contact(s) you designate in your account.

9.6 Governing Law and Attorneys’ Fees.
This Agreement will be governed by and interpreted according to the laws of the applicable state or country identified below without regard to conflicts of laws and principles that would cause the application of the laws of another jurisdiction. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except as provided in Section 9.7 (Dispute Resolution), any legal suit, action, or proceeding arising out of or relating to this Agreement or the Services will be instituted in the applicable courts identified below and the parties hereby consent to the personal jurisdiction of these courts. In the event of any adjudication of any dispute under this Agreement, the prevailing party in such legal suit, action, or proceeding will be entitled to reimbursement of its attorneys’ fees and related costs by the non-prevailing party.

If you are domiciled in:

Governing law:

Courts with personal jurisdiction:

Any country outside of the European Economic Area and its regions and territories, the United Kingdom, Switzerland, Andorra, Vatican City, and Monaco

State of California

State or federal courts of San Francisco, California, United States of America

Any country within the European Economic Area or its regions or territories, the United Kingdom, Switzerland, Andorra, Vatican City, or Monaco

England and Wales

Courts of London, England, United Kingdom

9.7 Dispute Resolution.
In the event of any dispute, claim, or controversy in connection with this Agreement (other than for disputes, claims, or controversies related to the intellectual property of a party) (collectively, “Disputes”), each party’s senior representatives will, in good faith, attempt to resolve a Dispute. If the parties are unable to resolve a Dispute within thirty (30) days or within such other time period as the parties may agree in writing, then the parties may commence binding arbitration under JAMS’ Comprehensive Arbitration Rules and Procedures. The parties will share equally the fees and expenses of the JAMS arbitrator. The arbitration will be conducted by a sole arbitrator mutually agreed to between the parties or, failing that, by JAMS under its then prevailing rules. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator will have the authority to grant specific performance or any other equitable or legal remedy, including provisional remedies. Each party will be responsible for its own incurred expenses arising out of any dispute resolution procedure. Any arbitration proceedings will take place in the English language in (a) San Francisco, California, if you are domiciled in any country outside of the (i) European Economic Area and its regions and territories, the United Kingdom, Switzerland, Andorra, Vatican City, and Monaco; (b) London, England, if you are domiciled in any country within the European Economic Area or its regions or territories, the United Kingdom, Switzerland, Andorra, Vatican City, or Monaco; or (c) Singapore, if you are domiciled in any country within the Asia-Pacific region.

9.8 Force Majeure.
No failure, delay, or default in performance of any obligation of a party will constitute an event of default or breach of this Agreement to the extent that such failure to perform, delay, or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil or military authority, fire, strike, lockout, or other labor dispute, flood, terrorist act, war, riot, theft, earthquake, or other natural disaster (collectively, “Force Majeure Events”). The party affected by a Force Majeure Event will take all reasonable actions to minimize the consequences of any such event.

9.9 Waiver and Order of Precedence.
No failure or delay by either party in exercising any right or enforcing any provision under this Agreement will constitute a waiver of that right or provision, or any other provision. Titles and headings of sections of this Agreement are for convenience only and will not affect the construction of any provision of this Agreement. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the applicable Order Form(s), (2) the XPOZ Data Protection Addendum, (3) the terms set forth in the body of this XPOZ Terms of Service, (4) the XPOZ Acceptable Use Policy, (5) any other terms incorporated by reference herein or any other exhibits or attachments hereto, and (6) the applicable Documentation.

9.10 Severability.
In the event that any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be limited or eliminated to the minimum extent necessary to render such provision enforceable and, in any event, the remainder of this Agreement will continue in full force and effect.

9.11 Entire Agreement.
This Agreement (including all exhibits and attachments hereto) will constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, proposals, statements, sales materials, presentations, or non-disclosure or other agreements, whether oral or written. No oral or written information or advice given by XPOZ, its agents, or its employees will create a warranty or in any way increase the scope of the warranties or obligations in this Agreement. The parties agree that any term or condition stated in your vendor registration form or registration portal or in any purchase order document or similar document will be construed solely as evidence of your internal business processes and the terms and conditions contained therein will be void and have no effect with regard to this Agreement, even if accepted by XPOZ or executed by the parties after the Effective Date.

10. Additional Terms

10.1 Private Beta Offerings.
Any Private Beta Offerings made available to Customer are strictly for testing and experimentation purposes only. Customer acknowledges that, by their nature, Private Beta Offerings may (a) not meet speed or performance benchmarks or expectations; (b) have gaps in functionality; and (c) contain bugs. The Support Terms and XPOZ SLA do not apply to Private Beta Offerings. Private Beta Offerings, and any information related to such Private Beta Offerings, including their existence, are considered XPOZ’s Confidential Information.

10.2 United States Federal, State, and Tribal Governments.
If you are a (a) United States federal entity, including without limitation, a bureau, office, agency, department, or other entity of the United States government; (b) a United States state entity, including without limitation, a bureau, department, office, or other entity of a state or a local, county, borough, commonwealth city, municipality, town, township, special purpose district, or other entity established by the laws of a state and located in such state; or (c) a federally-recognized tribal entity performing governmental functions and eligible for funding and services from the United States Department of the Interior by virtue of its status as an Indian tribe, or in Alaska, a Native village or Alaska Regional Native corporation, the following terms apply:

10.2.1 Failure to Pay.
XPOZ may assess, and you will pay, interest equal to the maximum amount allowable by applicable law, if you fail to pay the Fees and remedy such failure within fifteen (15) days of the date XPOZ provides you with written notice of the same.

10.2.2 Public Disclosure Laws.
Section 4.3.2 (Use and Disclosure) of this Agreement does not prohibit you from disclosing the terms of this Agreement to the extent required by public disclosure laws applicable to you (“Public Disclosure Laws”), provided that, to the extent permissible, any material legal terms included in this Agreement (e.g., representations and warranties, indemnification, limitation of liability) and any trade secrets, non-publicly available pricing, future business plans, future product plans or features, or business strategies of XPOZ are redacted.

10.2.3 Compelled Disclosure of Confidential Information.
Receiving Party will provide reasonable cooperation to Disclosing Party in connection with a Compelled Disclosure at Disclosing Party’s sole expense to the extent permitted by applicable law.

10.2.4 Customer Services IP Infringement.
You represent and warrant that the Customer Services do not, and will not, infringe or misappropriate a third party’s intellectual property rights. Your breach of this Section 10.2.4 will not be subject to liability limitations set forth in Section 7 (Limitation of Liability) of this Agreement.

10.2.5 Use of Marks.
XPOZ will not use your name, logo, or a description of your use case(s) on XPOZ’s website, earnings release and calls, or marketing or promotional materials without your prior written consent.

10.2.6 Indemnification by Customer.
Your obligations in Section 6.2 (Indemnification by Customer) of this Agreement will apply to the extent permitted by applicable law, regulation, or procedure.

10.2.7 Assignment.
The ability of either party to assign this Agreement without consent pursuant to Section 9.2 (Assignment) of this Agreement will not apply where prohibited by applicable law.

10.2.8 Governing Law.
Section 9.6 (Governing Law and Attorneys’ Fees) of this Agreement is hereby deleted in its entirety and replaced with the following:

Governing Law. This Agreement will be governed by and interpreted according to (a) United States Federal law, if you are a United States Federal entity, or (b) the laws of the state in which you are located without regard to conflicts of laws and principles that would cause the application of the laws of another jurisdiction, if you are not a United States Federal entity. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

10.2.9 Dispute Resolution.
Section 9.7 (Dispute Resolution) of this Agreement is hereby deleted in its entirety and replaced with the following:

Except as otherwise specified in applicable law, in the event of a dispute, claim, or controversy arising out of or in connection with this Agreement or the breach, termination, enforcement, interpretation, or validity thereof (other than for disputes, claims, or controversies related to the intellectual property of a party) (collectively, “Disputes”), each party’s senior representatives will engage in good faith negotiations with the other party’s senior representatives to amicably resolve a Dispute. If the parties are unable to resolve a Dispute within thirty (30) days after the first request to engage in good faith negotiations or within such other time period as the parties may agree to in writing, then either party may seek relief as set forth in Section 9.6 (Governing Law and Attorneys’ Fees).

10.2.10 Code of Federal Regulations.
XPOZ agrees to comply with the clauses included under 48 C.F.R. § 52.244-6 Subcontracts for Commercial Products and Commercial Services, and all applicable equal opportunity laws including the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 C.F.R. §§ 60-1 -60-60, 60-250, and 60-741. The affirmative action clause and regulations contained in the preceding sentence are incorporated by reference into this Agreement.

10.2.11 Commercial Items.
The Services are “Commercially available off-the-shelf (COTS) items”, consisting of “Commercial Products(s),” “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. § 2.101. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. §§ 227.7202-1-227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being provided (a) only as Commercial Items and (b) with only those rights as are granted to all other XPOZ customers. Unpublished-rights are reserved under the copyright laws of the United States.

10.2.12 Conflict.
In the event of any conflict between this Section 10.2 and any other terms of this Agreement, this Section 10.2 will prevail.

10.3 European Electronic Communications Code.
If you are a microenterprise, small enterprise, or not for profit organisation, and XPOZ provides you the Services within the European Economic Area or United Kingdom, you agree you have read and accept the European Electronic Communications Code Rights Waiver available at https://www.xpoz.com/legal/service-country-specific-terms/eu-eecc-waiver.

10.4 Brazil.
If you are domiciled in Brazil, the following terms apply:

10.4.1 Dispute Resolution.
Section 9.7 (Dispute Resolution) of this Agreement is hereby deleted in its entirety and replaced with the following:

In the event of a dispute, claim, or controversy arising out of or in connection with this Agreement or the breach, termination, enforcement, interpretation, or validity thereof (collectively, “Disputes”), each party’s senior representatives will engage in good faith negotiations with the other party’s senior representatives to amicably resolve a Dispute. If the parties are unable to resolve a Dispute within thirty (30) days after the first request to engage in good faith negotiations or within such other time period as the parties may agree to in writing, then either party may commence (a) litigation proceedings if the amounts being sought are less than two hundred thousand dollars ($200,000 USD) or (b) binding arbitration under the then-prevailing rules of the International Chamber of Commerce if the amounts being sought are equal to or greater than two hundred thousand dollars ($200,000 USD). The parties will share equally the fees and expenses of the arbitrator. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party will be responsible for its own incurred expenses arising out of any dispute resolution procedure. Any arbitration proceedings will take place in the English language in Sao Paulo, Brazil.

10.4.2 Taxes and Communications Surcharges.
Section 3.2 (Taxes and Communications Surcharges) is deleted and replaced with the following:

10.4.3 Invoicing.
If you elect to receive invoices and XPOZ approves you for the same, then, except as otherwise set forth in the applicable Order Form(s), (a) invoices will be sent to you each month, via email to the email address(es) you designate in your account and (b) you will pay the Fees due within thirty (30) days of the date of the invoice. Except as otherwise set forth in the applicable Order Form(s) or an invoice to the extent you procure the Services without any applicable Order Form(s), the Fees are payable in Brazilian Real. If you fail to pay the Fees and remedy such failure within fifteen (15) days of the date XPOZ provides you with written notice of the same, then XPOZ may (i) assess and you will pay a late fee of the lesser of 1.5% per month or the maximum amount allowable by law and (ii) suspend the provision of the Services to all of your accounts until the Fees due are paid in full. You are prohibited from creating new accounts until the Fees due are paid in full.