Terms of Service

This Agreement governs Customer's purchase and ongoing use of those Services, as provided below. 

Please read it carefully!

  • that Customer is at least 18 years of age;

  • that Customer is not barred from receiving the Services under the laws of the United States or other countries including Customer’s country of residency or from which Customer uses the Service; and

  • if entering into this Agreement on behalf of a company or other legal entity, that Customer has the authority to bind that entity and its affiliates to these terms and conditions.

If Customer does not have the authority to bind that entity and its affiliates, or if Customer does not agree with these terms and conditions, do NOT accept this Agreement and do NOT use the Services.By executing this Agreement, the Customer agrees to be bound by all of the terms of this Agreement and an order submitted by Customer becomes subject to this Agreement on the date XeneX accepts Customer's order, as set forth herein. XeneX accepts Customer's order by doing any of the following: 

  • transmitting an Order Confirmation to Customer;

  • providing Customer with access to the number of additional User subscriptions specified in Customer's order;

or

  • providing the Services.

XENEX RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO CHANGE, MODIFY, ADD OR REMOVE PORTIONS OF THIS AGREEMENT AT ANY TIME, INCLUDING THE FEE SCHEDULE SET IN SECTION 6 OR IN ANY ORDER CONFIRMATION, EFFECTIVE UPON POSTING AT XENEX' WEB SITE. IF XENEX MAKES A MATERIAL CHANGE TO THIS AGREEMENT, THEN XENEX MAY ALSO ALERT CUSTOMER VIA E-MAIL, MAIL OR THE ADMINISTRATION CONSOLE. IF ANY FUTURE CHANGE HAS A MATERIAL ADVERSE IMPACT ON CUSTOMER AND CUSTOMER DOES NOT AGREE TO THE CHANGE, CUSTOMER HAS THE OPTION OF NOTIFYING XENEX IN WRITING TO THAT EFFECT AND TERMINATING USE OF THE SERVICES – BUT CUSTOMER MUST DO SO WITHIN 30 DAYS AFTER RECEIVING NOTICE OF THE CHANGE OR WAIVE THE RIGHT TO TERMINATE. AFTER RECEIVING CUSTOMER'S NOTIFICATION, XENEX WILL REFUND ANY PREPAYMENT ON A PRO RATA BASIS FOR THE UNUSED PORTION OF THE TERM, CUSTOMER WILL DISCONTINUE USE OF THE SERVICES, AND THIS AGREEMENT WILL TERMINATE. CUSTOMER'S CONTINUED USE OF THE SERVICES, NOW OR FOLLOWING THE POSTING OF NOTICE OF ANY SUCH CHANGES, WILL INDICATE ACCEPTANCE OF THIS AGREEMENT AND OF ANY SUCH CHANGES. 

For ease of reference, this Agreement is broken into the following sections:

  1. Definitions.

  2. Free Trial.

  3. Purchased Services.

  4. Description of the Services.

  5. Customer Responsibilities.

  6. Fees and Payment for Purchased Services.

  7. Intellectual Property Ownership.

  8. Warranties; Disclaimer of Warranties.

  9. Confidentiality.

  10. Indemnification.

  11. Limitation of Liability.

  12. Links to Other Web Sites.

  13. Suspension of the Services.

  14. Term and Termination.

  15. General.

1. Definitions.

“Administrative Account” " means the administrative account provided to Customer by XeneX for the purpose of administering User access to the Services. Use of an Administrative Account requires a password, which XeneX will provide to Customer. 

“Administration Console” " means the online tool provided by XeneX to Customer for use by the Authorized Administrator to administer the Services on behalf of Customer for, among other things, account maintenance, and access to and use of the Services by Users. 

“Affiliate” " means an entity that directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. "Control" for purposes of this definition means having the ability to elect a majority of the board of directors or a similar governing body. 

“Authorized Administrator” means the individual appointed by Customer to access the Administration Console.

“Customer” means the individual, company or other legal entity entering into this Agreement. If Customer is a company or other legal entity, then “Customer” includes Affiliates of that company or entity.

“Customer Data” means all electronic data or information submitted by Customer to the Purchased Services.

“Documentation” means the online user guide(s), as updated by XeneX from time to time, that describe the functions, operation, and use of the Services. Documentation includes release notes and is accessible via the web site(s) designated by XeneX. 

“Order Confirmation” means the email, activation instructions or other acknowledgement issued by XeneX confirming Customer's purchase of Services under this Agreement. Each Order Confirmation incorporates this Agreement by reference. 

“Purchased Services” means Services that Customer purchases as confirmed in an Order Confirmation (as distinguished from those provided pursuant to a free trial).

“Services” " means the Web-based applications and platform provided by XeneX via the web site(s) designated by XeneX from time to time that are ordered by Customer as part of a free trial or thereafter. XeneX may host the Services using its own infrastructure or it may engage a third party to host the Services on its behalf. 

“Upgrades/Updates” means all subsequent releases and versions of the XeneX Purchased Services, which XeneX makes available generally to customers at no additional cost or fee other than media and handling charges. Upgrades/Updates provide changes to the XeneX Purchased Services that:

  • Improve operating performance, add new features and new functionality but do not alter the basic or overall function of the XeneX technology; and/or

  • Incorporate all fixes or bypasses for known errors.

“Users” means individuals (a) who are authorized by Customer to use the Services, (b) for whom subscriptions to the Services have been purchased, and (c) who have been assigned unique user names by Customer (or by XeneX at Customer's request). Users may include but are not limited to Customer employees, consultants, contractors, and agents as well as third parties with which Customer transacts business.

2. Free Trial.

Following Customer's acceptance of this Agreement, XeneX may make one or more Services available to Customer on a trial basis free of charge until the earlier of (a) the time period specified by XeneX or (b) the start date of any Purchased Services ordered by Customer pursuant to its Order Confirmation. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Please review the Documentation during the trial period to become familiar with the features and functions of the Services.

Any Customer Data entered into the Services during the free trial will be permanently lost unless Customer purchases a subscription to the Services before the end of the trial period. 

During the free trial, XeneX provides the Services "as-is," without any warranty, regardless of anything in this Agreement to the contrary, including in Section 6.

3. Purchased Services.

  • Provision of the Purchased Services. XeneX will make the Purchased Services available as described in this Agreement and the applicable Documentation. XeneX will provide Customer with a password and an Administrative Account to use to administer access and use of the Purchased Services by Users through the Administration Console.

  • User Access. Unless otherwise specified in the applicable Order Confirmation, (i) Services purchased may be accessed only by the designated Users, (ii) additional User subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions will terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services. The use rights for a User are those applicable to the type of User subscription purchased. 

4. Description of the Services.

  1. Modifications and Enhancements to the Services.  XeneX may modify the form and nature of the Services, or particular components of the Services, from time to time, without any liability or responsibility to the Customer. When XeneX does so, XeneX will post a description of the changes on XeneX' web site. XeneX may also alert Customer to changes via the Administration Console or Monthly Executive Meetings. Customer acknowledges that unless XeneX explicitly states otherwise, any new features that augment or enhance the Services as well as any new services subsequently purchased by Customer will be subject to this Agreement.  

  2. b. XeneX shall (i) provide the Customer with basic support for the Purchased Services hereunder at no additional charge, and/or upgraded support if purchased separately; (ii) use commercially reasonable efforts, without any liability, to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which XeneX give at least 12 hours notice via the Purchased Services and which XeneX shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Pacific time Friday to 3:00 a.m. Pacific time Monday); or (b) any unavailability caused by circumstances beyond the reasonable control of XeneX, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays; and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.

  3. Services Availability. The Services will generally be available 24 hours a day, 7 days a week, except for:
    i. system maintenance and other scheduled downtime. XeneX' practice is to provide at least 48 hours notice of planned downtime via a system message and to schedule it, to the extent practicable, during the weekend hours from 6:00 p.m. Friday to 6:00 a.m. Monday (Pacific time zone) to limit periods when the Services are unavailable. Emergency maintenance may be required at other times in the event of system failure. XeneX will use commercially reasonable efforts to promptly remedy any system failure and restore the Services.
    ii. any unavailability caused by circumstances beyond XeneX' reasonable control including, without limitation, acts of God, civil unrest, acts of terror, strikes and other labor problems (other than those involving XeneX' employees), governmental demands or restrictions, power outages, failures of third party networking equipment or Internet service provider failures or delays
    Support for Purchased Services. XeneX shall provide all support of the Services pursuant to the SLA document.. 

  4. Reservation of Rights. The Services, including the content and operation of XeneX' web site, are protected by U.S. and international copyright and other intellectual property laws. They are supported by software and hardware systems, and contain copyrighted material, trademarks, service marks, patents, and other proprietary rights and information, including text, data, images, and "look and feel"; all graphical and navigational elements; any software components which may be used in delivering the Services ("software"), including the Administration Console and any browser extensions or add-ons; and the compilation, arrangement, structure, and sequence of all components and content (collectively, all of the foregoing including software and the Desktop, are referred to as "Proprietary Materials"). Except for the express rights granted in this Agreement, XeneX reserves all rights, title and interest in and to the Services, including the Proprietary Materials and all related intellectual property rights. 

  5. e. Notwithstanding the provisions of this Section 4 or the provisions contained elsewhere in this Agreement, it is hereby agreed and acknowledged that XeneX provides (i) a platform and a set of tools as a service that allows Customers to monitor their systems, hardware software and network, as more specifically stated above in this Agreement, as well as (ii) providing Customers’ end users access to the Customer’s applications. It is hereby acknowledged that XeneX is NOT in the business of maintaining Customer systems, hardware software and network. All Customer equipment including but not limited to systems, hardware, software and network, as well as the maintenance and upkeep of Customer equipment, is strictly the responsibility of the Customer and is not within the scope of this Agreement, nor the obligation of XeneX to perform. XeneX provides the platform and tools that Customer could use to monitor its systems, hardware software and network and provide access to its end users. The Customer is expected to use XeneX reports and alerts to make the necessary adjustment and solutions for its systems, hardware software and network. XeneX is not an advisor to the Customer and is not responsible for identifying and resolving any issues with the Customer’s systems, hardware software and network, all of which shall be the obligation of the Customer to perform. Furthermore, XeneX is not liable for any adjustments, modifications, changes or resolutions that Customer deploys from time to time to the Customer’s systems, hardware software and network, regardless of the source of such reports or alerts, and regardless of whether such r

5. Customer Responsibilities.

a. Required Infrastructure. Use of the Services requires Customer to have or obtain access to the World Wide Web, either directly or through devices that access Web-based content. Customer must also provide all equipment necessary to make and maintain such connection to the World Wide Web. Customer understands that DSL, cable, or other high speed Internet connection is required for proper performance of the Services. Customer agrees to acquire the third party software, sold by XeneX necessary for accessing the Services including, but not limited to, "browser" software that supports the Secure Socket Layer (SSL) protocol or other protocols accepted by XeneX, and to follow logon procedures for services that support such protocols. Customer agrees that XeneX is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such software or for any compromise of data transmitted across computer networks or telecommunications facilities including, but not limited to, the Internet, which are not owned or operated by XeneX, provided that XeneX has taken reasonable, industry standard precautions to prevent such compromise. End User must comply with the third party service and/or license agreement where applicable.

b. Customer Assistance and Materials. Customer will provide XeneX with all information, assistance, and materials as are reasonably required for XeneX to activate and operate the Services for Customer pursuant to this Agreement. Customer represents and warrants that it is the owner, licensor or authorized user of all such information and materials provided to XeneX, and hereby grants to XeneX a non-exclusive license to use, reproduce, display, and distribute such information and materials for the sole purpose of providing the Services to Customer.  

c. Customer Administration of the Services. Customer may specify one or more Authorized Administrators through the Administration Console who will have the right to access the Administrative Account and to administer access by Users. Customer is responsible for: (i) maintaining the confidentiality of the password and Administrative Account; (ii) designating those individuals who are authorized to access the Administrative Account; and (iii) ensuring that all activities that occur in connection with the Administrative Account comply with this Agreement. 

d. Use of the Services. Customer's use of the Services is limited to the use expressly described in this Agreement and the Documentation. Customer agrees to: 

i. comply with this Agreement, including XeneX' policies and procedures for the Services (if any), and to be responsible for Users' compliance with same. XeneX may make additional applications, features or functionality available from time to time through the Services, the use of which may be contingent upon Customer's agreement to additional terms;

ii. be solely responsible for the accuracy, quality, integrity, and legality of Customer Data and of the means by which Customer acquired Customer Data;

iii. protect the confidentiality of User names and passwords;

iv. use commercially reasonable efforts to prevent unauthorized access to or use of the Services and to terminate any such unauthorized use. Customer will promptly notify XeneX if Customer becomes aware of any unauthorized use of or access to the Services, or other noncompliance or violation of this Agreement; 

v. use the Services only for third party applications for which Customer is authorized and only in accordance with the terms governing use of such applications. Customer represents and warrants that it owns or is validly licensed or authorized to use all Customer Data, and other information and materials provided to XeneX; and

vi. use the Services only in accordance with the Documentation, and applicable laws and government regulations.  

e. Conditions of Use. Customer agrees not to: 

i. make the Services available to anyone other than Users;

ii. transfer to any other person or entity Customer's rights to use the Services or otherwise sell, resell, rent or lease the Services; 

iii. use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or store or transmit material in violation of third-party privacy rights;

iv. use the Services to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs (collectively, "Harmful Code"); 

v. interfere with or disrupt the integrity or performance of the Services or third-party data contained in the Services;

vi. create any derivative works based on or copy any feature, design or graphic contained in the Services (or the Documentation);

vii. copy, frame or mirror any part or content of the Services, other than copying or framing on Customer's own intranets or otherwise for Customer's internal business purposes; 

viii. use, evaluate or view the Services for the purpose of designing, modifying, or otherwise creating any environment, program, or infrastructure (or any portion thereof) which performs functions similar to the functions performed by the Services; or

ix. attempt to gain unauthorized access to the Services or their related systems or networks. 

f. Ownership of Customer Data. As between Customer and XeneX, Customer exclusively owns all rights, title and interest in and to all of the Customer Data. Customer hereby grants to XeneX a perpetual, non-exclusive license to use Customer Data (i) in order to provide Services to Customer; (ii) for statistical use (provided that such data is not personally identifiable); and (iii) as necessary to monitor and improve the Services

6. Fees and Payment for Purchased Services.

a. Fees. Customer agrees to pay the fees specified in each Order Confirmation, or as set forth herein this Agreement. Except as otherwise specified herein or in the applicable Order Confirmation, (i) fees are based on Services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the subscriptions (including subscriptions for Authorized Administrators) purchased cannot be decreased during the relevant subscription term stated on the Order Confirmation or herein. Unless otherwise expressly stated in this Agreement, or in an Order Confirmation to the Customer, subscription fees are based on the specific term set forth in this Agreement and will be payable on an annual basis, beginning on the subscription start date and each monthly anniversary thereafter. Fees for subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term. Customer agrees and acknowledges that from time to time, XeneX reserves the right to adjust the fees charged hereunder or under the Order Confirmation, upon not less than thirty (30) days notice. 

b. Invoicing and Payment. Customer agrees to provide XeneX with valid and updated account information to which XeneX may bill fees due hereunder. All XeneX charges are invoiced in advance, in accordance with its customary billing practices, or upon a time or frequency interval expressly stated in this Agreement, or in an Order Confirmation to the Customer. All payments will be made in U.S. dollars and will be due within 30 days from the invoice date, if a PO is involved, (or as otherwise set forth in the applicable Order Confirmation, e.g., credit card, or otherwise), or as set forth in the Agreement. Amounts charged by XeneX do not include any applicable taxes or similar fees. Customer is responsible for all such amounts and will pay them in full (except for taxes based on XeneX' net income). If XeneX has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides XeneX with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer's account becomes past due, in addition to other remedies available to XeneX, XeneX may suspend the provision of Services, without any liability, until Customer's account is current. In addition, interest will accrue at the rate of 1.5% per month or the highest rate permitted by law, whichever is lower, from the original due date until paid. However, such late fee will not apply to the extent a payment is the subject of a good faith dispute between the parties provided that Customer has notified XeneX of such dispute in writing and is working with XeneX to expeditiously resolve the dispute, during which time XeneX shall have the right to suspend the provision of Services. Customer agrees to pay on demand all of XeneX' reasonable attorney fees and other costs incurred by XeneX to collect any past due fees or charges.

7. Intellectual Property Ownership.

Customer acknowledges and agrees that XeneX (and its licensors, where applicable) owns all right, title and interest in and to the Services (and all Proprietary Materials subsisting in the Services) including without limitation all Intellectual Property Rights in and to the Services and the mode of their delivery. "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. Customer agrees not to (and agrees not to allow third parties to) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Services, or to extract significant portions of Services' files for use in other applications. Customer also agrees not to remove, obscure, or alter any copyright notice, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Services.

8. Warranties; Disclaimer of Warranties.

a. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Harmful Code (except for Harmful Code previously transmitted to the warranting party by the other party).

b. Additional XeneX Warranties. XeneX warrants that (i) the Services will be perform materially in accordance with the Documentation, and (ii) the functionality of the Services will not be materially decreased during a subscription term, unless as otherwise provided herein. Notwithstanding the foregoing, XeneX does not warrant, however, that use of the Services will be uninterrupted or that the Services will be error-free or meet all of Customer’s requirements. Subject to the provisions of Section 11 below, for any breach of either of these warranties, Customer's exclusive remedy is to terminate this Agreement in which event XeneX will refund to Customer any prepayment on a pro rata basis for the unused portion of the term. Customer shall have no right to claim any other type of damages, including without limitation lost profits or consequential damages.

c. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED BY XENEX ON AN "AS IS" BASIS. XENEX MAKES NO OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THIS DISCLAIMER ALSO APPLIES TO ANY OF XENEX' INDEPENDENT CONTRACTORS, SUPPLIERS OR PROGRAM DEVELOPERS (COLLECTIVELY, "SUPPLIERS"). 

9. Confidentiality.

a. Description of Confidential Information. In connection with each party's rights and obligations under this Agreement, each party (as the "disclosing party") may disclose to the other party (as the "recipient") certain of its confidential or proprietary information ("Confidential Information"). In the case of XeneX, the Services, terms of this Agreement (including all Order Confirmations), the Proprietary Materials, and any other proprietary or confidential information provided to Customer by XeneX constitute XeneX Confidential Information. In the case of Customer, Customer Data provided to XeneX by Customer constitutes Customer Confidential Information.  

b. Protection of Confidential Information. Each party as recipient agrees: (i) to exercise at least the same degree of care to safeguard Confidential Information of the disclosing party as the recipient exercises to safeguard the confidentiality of its own confidential information, but not less than reasonable care; (ii) to use the disclosing party's Confidential Information only in connection with exercising its rights and performing its obligations under this Agreement; and (iii) to not disclose or disseminate the disclosing party's Confidential Information to any third party and that the only employees and contractors who will have access to the disclosing party's Confidential Information will be those with a need to know who have agreed to abide by the obligations set forth in this Section pursuant to a written confidentiality agreement. 

c. Protection of Customer Data. Without limiting XeneX' obligations specified in Section 9.b ("Protection of Confidential Information"), XeneX agrees to maintain appropriate administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of the Customer Data. Unless requested by Customer in connection with customer support, XeneX will not (i) modify Customer Data, (ii) disclose Customer Data except pursuant to the requirements of a governmental agency, by operation of law, to investigate occurrences that may involve violations of system or network security, or as expressly permitted in writing by Customer, or (iii) access Customer Data except to provide the Services or to address other service or technical problems. 

d. Exceptions to Confidentiality. Information will not be deemed Confidential Information of either Customer or XeneX under this Agreement if such information: (i) is or becomes rightfully known to the recipient without any obligation of confidentiality or breach of this Agreement; (ii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the recipient of such Confidential Information; or (iii) is independently developed by the recipient of such Confidential Information without breach of this Agreement. Confidential Information will remain the property of the disclosing party.

10. Indemnification.

a. Indemnification by XeneX. XeneX will defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of the Services as permitted in this Agreement infringes or misappropriates that party's United States patents, copyrights, or trade secrets ("Claim"), and will indemnify Customer for any damages finally awarded against, and for reasonable attorney's fees incurred by, Customer in connection with any such Claim. If the Services become, or in XeneX' reasonable opinion are likely to become, the subject of a claim of infringement, Customer agrees that XeneX may (i) replace or modify the Services so that they become non-infringing while remaining substantially equivalent in function or (ii) obtain the necessary rights for Customer to continue the use of the Services. If XeneX concludes that neither of these options is commercially practicable, XeneX may terminate this Agreement and refund to Customer any prepayment on a pro rata basis for the unused portion of the term. Notwithstanding the foregoing, in no event will XeneX have any obligations or liability under this Section, or owe the Customer any indemnity arising from: (w) Customer's use pursuant to the terms of this Agreement of any Service, information and material provided by XeneX; (x) use of any Services, whether in a modified form, or otherwise, or in a combination with materials not furnished by XeneX, (y) any content, information or data provided by Customer, Users or other third parties, or (z) any malfunction, down time or resulting damages suffered by Customer or any User.  

b. Indemnification by Customer. Customer will indemnify, defend, and hold XeneX harmless from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of a third party Claim made or brought against XeneX (i) based on XeneX' use pursuant to the terms of this Agreement of the information and materials provided by Customer or (ii) alleging that the Customer Data or Customer's use of the Services in violation of this Agreement infringes, misappropriates or violates the intellectual property or usage rights of a third party or violates applicable law.  

c. Conditions to Indemnification and Sole Remedy. The obligations to indemnify under this Section 10 are contingent on the party requesting the indemnification (i) promptly notifying the indemnifying party in writing of the existence of any such action, (ii) granting the indemnifying party sole authority and control for the defense or settlement of such action, and (iii) providing the indemnifying party with all reasonable assistance for the defense or settlement of such action. The party requesting the indemnification may, at its own expense, participate in the defense of any such action. The foregoing indemnity represents the sole and exclusive remedy of each party with respect to any violation of a third party's intellectual property rights.

11. Limitation of Liability.

Except with respect to Customer's breach of XeneX' intellectual property rights or either party's breach of its obligations regarding confidentiality, and excluding a party's obligation of indemnification hereunder, (a) neither party will be liable for special, incidental, consequential or indirect damages (including but not limited to lost profits, lost savings, costs of procurement of substitute goods and services, loss of use of computer hardware, downtime, loss of goodwill, loss of business, computer hardware malfunction, or damages arising from loss of use or loss of content or data) arising from performance of this Agreement, whether such damages are based in contract, tort or any other legal theory, even if such party has been advised of the possibility of such damages, and (b) in no event will a party's total aggregate liability to the other under any provision of this Agreement exceed the lesser of $250, or the total amounts paid by Customer to XeneX in the Three (3) months prior to the event giving rise to the liability. The limitations of liability set forth herein also apply to XeneX' Suppliers and is the maximum for which XeneX and its Suppliers are collectively responsible. In no event will the limitations set forth in this Section apply to fees owed by Customer under this Agreement.

Customer will be solely responsible for any damage to its networks, information system or other devices, or for the loss of information or any damage resulting from use of the XeneX’ Services or software, including in the event that the Services or software were defective in any way.

12. Links to Other Web Sites.

The following pertains to any links to other web sites controlled or offered by third parties ("Linked Sites") and contained on the Site. XeneX' inclusion of a link to a Linked Site does not imply approval or endorsement of the Linked Site or any products or services offered on the Linked Site. XeneX is not responsible for the content, accuracy, reliability, or opinions expressed in the Linked Sites. XeneX has not investigated or monitored the Linked Sites for accuracy or completeness. The Linked Sites may have different privacy policies and security standards from XeneX. XeneX is not responsible if any offer terms shown on any of XeneX' web sites differ from those shown on the Linked Site.

13. Suspension of the Services.

If: (a) Customer materially violates this Agreement; (b) XeneX provides Customer with commercially reasonable notice of this violation (which may be by notification via the Administration Console); (c) XeneX uses commercially reasonable efforts to discuss and resolve the violation with Customer; and (d) despite the foregoing, the violation is not resolved to XeneX' reasonable satisfaction, then XeneX reserves the right to suspend (i.e., immediately disable) administrative access to the Services or to particular components of the Services. If, after all of the foregoing, Customer still has not cured a violation within 30 days of the commencement of a suspension under this Section, then XeneX may immediately terminate the Services for cause. Notwithstanding the foregoing, if there is an emergency security issue, then XeneX may automatically suspend the offending use. Suspension will be to the minimum extent required, and of the minimum duration, to prevent or terminate the emergency security issue. If suspension occurs without prior notice to Customer, XeneX will provide Customer the reason for the suspension as soon as is reasonably possible. As used here, "emergency security issue" means either: (x) a User's use of the Services in violation of XeneX' policies, which could disrupt: (i) the Services; (ii) other Users' use of the Services; or (iii) the network or servers used by XeneX to provide the Services; or (y) unauthorized third party access to the Services.

14. Term and Termination.

a. Term.

i. Term of the Agreement. This Agreement commences on the Effective Date and continues until all other subscriptions purchased under this Agreement, have expired pursuant to the terms set forth herein or in the Order Confirmation, as may be the case, or been terminated. If Customer elects to use the Services for a free trial period and does not purchase a subscription before the end of that period, this Agreement will terminate at the end of the trial period. 

ii. Term of Purchased User Subscriptions. Each User or other subscription commences on the start date specified in the applicable Order Confirmation and continues for the subscription term specified in that form. 

Except as otherwise specified in this Agreement, or in the applicable Order Confirmation, each User subscription, or other subscription hereunder, will automatically renew for additional periods of twelve months, unless: 

  • this Agreement is earlier terminated as provided in this Agreement;

  • or 

  •  either party provides the other with written notice of non-renewal at least 30 days before the end of the then-current subscription term. 

The per-unit pricing during any such renewal term will be the same as that during the prior term unless XeneX has given Customer written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase will be effective upon renewal and thereafter. Any such pricing increase will not exceed 20% over the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Confirmation as promotional or one-time. The foregoing notwithstanding, XeneX reserves the right to increase the pricing at any time during the term upon 30 days prior notice as set forth in Section 6 above.

b. Termination for Breach. Either party has the right to terminate this Agreement for cause if the other party breaches any material terms or condition of this Agreement and fails to cure the breach within 30 days after receipt of written notice of the same.

c. Effect of Termination. Upon any termination of this Agreement, XeneX will immediately cease providing the Services, and each party will return or destroy the other party's Confidential Information. If Customer has terminated this Agreement for XeneX' breach, XeneX will refund on a pro rata basis any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. If XeneX has terminated this Agreement for Customer's breach or Customer has terminated this Agreement for convenience, Customer will pay any unpaid fees covering the remainder of the term of all subscriptions per the applicable Order Confirmation after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees due to XeneX for the period prior to the effective date of termination. In addition, in no event customer termination for convenience will relieve the customer of the obligation to pay the entire fee for the remaining period of the subscription term and the balance of the subscription fee for the remaining of the term is immediately due upon termination. With respect to Purchased Services and upon payment of the applicable fee, XeneX will make available to Customer a file of the Customer Data provided Customer requests that XeneX do so within 30 days after the effective date of termination of this Agreement, is not in breach of this Agreement, and has made all payments due hereunder in full. After the 30-day period referenced above, XeneX will have no obligation to maintain or provide any Customer Data and will thereafter, unless legally prohibited, delete all Customer Data in XeneX' systems or otherwise in XeneX' possession or under XeneX' control except for archival copies. In the event of End User’s early termination, the End User is responsible for the balance of the XeneX and the third parties’ fees for the remainder of the subscription period.

d. Survival. The terms of any sections of this Agreement which by their nature are intended to extend beyond termination including, but not limited to, Sections 4.d ("Reservation of Rights"), 5.f ("Ownership of Customer Data"), 6 ("Fees and Payment for Purchased Services"), 7 ("Intellectual Property Ownership"), 8.c ("Warranty Disclaimer"), 9 ("Confidentiality"), 10 ("Indemnification"), 11 ("Limitation of Liability"), 14.c ("Effect of Termination"), 14.d ("Survival"), and 15 ("General"), will survive termination of this Agreement for any reason. 

15. General.

a. Governing Law and Jurisdiction. This Agreement will be exclusively governed by the laws of the State of California, and applicable Federal Laws of the United States, without regard to its conflicts of law principles. The United Nations Convention on the International Sale of Goods will have no application to this Agreement. The parties agree to submit to the exclusive jurisdiction of the courts located within the County of Los Angeles, California to resolve any legal matter arising from this Agreement. Notwithstanding this, Customer agrees that XeneX will still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. If either party employs attorneys to enforce any rights arising out of or related to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys' fees and costs from the other party.  

b. Arbitration of Claims. Any disputes or controversy or claim arising out of or relating to this Agreement or its enforcement or interpretation, or because of an alleged breach, default or misrepresentation in connection with any of its provisions, shall be determined by binding arbitration. The arbitration proceedings shall be held and conducted by a single arbitrator in accordance with the Commercial Rules of the American Arbitration Association (the “AAA Rules”), as modified by this Agreement. Such arbitration shall occur in Los Angeles, California, at the offices of AAA, and shall be initiated by any party in accordance with the AAA Rules. The demand for arbitration shall be made by any party hereto within a reasonable time after the claim, dispute or other matter in question has arisen, and in any event shall not be made after the date when institution of legal proceeding, based on such claim, dispute or other matter in question, would be barred by the applicable statute of limitations. California Code of Civil Procedure Section 1283.05, which provides for certain discovery rights, shall apply to any such arbitration, and such Code Section is incorporated herein by reference. The arbitrator shall decide discovery issues. Post-hearing briefs shall be permitted. The arbitrator shall render a decision within twenty (20) days after the conclusion of the hearing(s). In reaching a decision, the arbitrator shall have no authority to change, extend, modify or suspend any of the terms of this Agreement, or to grant an award or remedy any greater than that which would be available from a court under the statutory or common law theory asserted. The arbitrator shall issue a written opinion that includes the factual and legal basis for any decision and award. The arbitrator shall apply the substantive law (and the law of remedies, if applicable) of California or federal law, or any of them, as applicable to the claim(s) asserted. Judgment on the award may be entered in any court of competent jurisdiction. The Parties may seek, from a court of competent jurisdiction, provisional remedies or injunctive relief in support of their respective rights and remedies hereunder without waiving any right to arbitration. However, the merits of any action that involves such provisional remedies or injunctive relief, including, without limitation, the terms of any permanent injunction, shall be determined by arbitration under this paragraph. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall allocate all costs and expenses of the arbitration (including legal and accounting fees and expenses of the respective parties) to the Parties in the proportions that reflect their relative success on the merits (including the successful assertion of any defenses).  

c. Feedback. Customer (including Users) may from time to time provide suggestions, recommendations, enhancement requests, or other feedback to XeneX relating to the operation of the Services. Notwithstanding anything in this Agreement to the contrary, XeneX will be free or incorporate into the Services any such feedback. 

d. Compliance with Laws. Each party will comply with applicable laws, including the export laws and regulations of the United States and other applicable jurisdictions, in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer will not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.

e. Independent Contractors; No Third-Party Beneficiaries. The relationship of Customer and XeneX will be that of independent contractors, and nothing contained in this Agreement will constitute the parties as partners, joint venturers, employer and employee, or otherwise as agents or participants in a joint undertaking. There are no third-party beneficiaries to this Agreement.

f. Federal Government End Use Provisions. XeneX provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). 

g. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices must be in writing. Notice will be deemed given: (i) when verified by written receipt if sent by personal courier, certified or registered mail, or a nationally recognized overnight carrier; or (ii) when verified by automated receipt or electronic logs if sent by facsimile or email. Notices to Customer will be addressed to the system administrator designated by Customer for Customer's relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by Customer. Notices to XeneX must be addressed to the attention of its Chief Executive Officer.

h. Assignment. Neither party may assign its rights or delegate its obligations under this Agreement, either in whole or in part, without the prior written consent of the other party. Any attempted assignment or delegation without such consent will be void. Notwithstanding the foregoing, either party may assign this Agreement without the prior written consent of the other party (i) to an entity acquiring, directly or indirectly, control of such party, an entity into which such party is merged, or an entity acquiring all or substantially all such party's assets provided, that, in an assignment by Customer, the acquiring entity is not a direct competitor of XeneX, or (ii) to any of its Affiliates. This Agreement will be binding upon, inure to the benefit of, and be enforceable by the parties and their permitted successors and assigns.

i. No Waiver; Cumulative Remedies; Severability. A party's failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement will be unenforceable or invalid under any applicable law or be so held by a court of competent jurisdiction, such unenforceable or invalid provision will be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect.

j. Entire Agreement. This Agreement, including all Order Confirmations, constitutes the entire agreement between XeneX and Customer, and supersedes all prior communications, understandings, agreements, proposals or representations, written, electronic or oral, concerning its subject matter. Except as specified in this Agreement, any modification of this Agreement or waiver of any of its provisions will be effective only if in writing and signed by XeneX.