TERMS OF SERVICE AGREEMENT
Last Updated: [5/6/21]
PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY XEEMO IN ITS SOLE DISCRETIONATANYTIME. Whenchangesaremade,XeemowillmakeanewcopyofthisAgreement available at the Website, and will update the “Last Updated” date above. Xeemo may require Customer to provide consent to the updated
1. Background. Xeemo owns and operates an online network that enables business users such as Customer to deliver invoices via text messages to their respective end customers (“Customer Patrons”), using mobile telephone numbers supplied by the Customer Patrons, following which the Customer Patron will be directed to a landing page for confirmation and payment through the use of Xeemo’s third party payment processing platform (currently, Stripe). Xeemo facilitates such services through Xeemo’s website located at https://xeemo.io/ (“Xeemo Website”), landing pages of the type mentioned above, and other proprietary technologies (such services, collectively, the “Xeemo Service”).
2. Xeemo Service
2.1 License. Subject to the terms and conditions of this Agreement, Xeemo hereby grants to Customer a nonexclusive, non-transferable (except as permitted under Section 14), non-sub- licenseable license, during the Term of this Agreement to access and use the Xeemo API and Xeemo Service to send Customer Patrons invoices.
2.2. Restrictions. Customer acknowledges that the Xeemo Service are Xeemo’s confidential and proprietary information. Customer agrees not to (a) modify or create derivative works from the Xeemo Service; (b) disclose, distribute, sublicense, or otherwise transfer (except as permitted under Section 14) the Xeemo Service to any third party; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Xeemo Service; (e) use any software, code, or routine to interfere or attempt to interfere with any application, function, or use of the Xeemo Service, Xeemo Website, Xeemo or any of Xeemo ‘s systems; or (f) reproduce or otherwise use the Xeemo Service.
2.3 Accounts. In order to use the Xeemo Service, Customer will be required to create an account on the Xeemo Service (an “Account”). Customer is solely responsible for all acts and omissions related to, or which occur in, Customer’s Account, and will immediately notify Xeemo of any known unauthorized access thereto.
3. Trademarks. Subject to the terms and conditions of this Agreement, each party (“Mark Owner”) hereby grants to the other party (“Mark User”), a non-exclusive, non-transferable (except as permitted under Section 14), royalty-free, non-sublicenseable license, during the term of this Agreement, to use and reproduce the Mark Owner Marks (as defined below) solely in connection with marketing the Xeemo Service with Customer. Mark User agrees to state in appropriate places on all materials using the Mark Owner Marks that the Mark Owner Marks are trademarks of Mark Owner and to include the symbol TM or ® as appropriate. Mark Owner grants no rights in the Mark Owner Marks other than those expressly granted in this Section 3. Mark User acknowledges Mark Owner’s exclusive ownership of the Mark Owner Marks. Mark User agrees not to take any action inconsistent with such ownership and to cooperate, at Mark Owner’s request and expense, in any action (including the conduct of legal proceedings) which Mark Owner deems necessary or desirable to establish or preserve Mark Owner’s exclusive rights in and to the Mark Owner Marks. Mark User will not adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the Mark Owner Marks or in such a way as to create combination marks with the Mark Owner Marks. Mark User will provide Mark Owner with samples of all materials and products that contain the Mark Owner Marks prior to their public use, distribution, or display for Mark Owner’s quality assurance purposes and will obtain Mark Owner’s written approval before such use, distribution, or display. At Mark Owner’s request, Mark User will modify or discontinue any use of the Mark Owner Marks if Mark Owner determines that such use does not comply with Mark Owner’s then-current trademark usage policies and guidelines. “Mark Owner Marks” means those trademarks, service marks, and trade names of Mark Owner that Mark Owner authorizes Mark User in writing to use in connection with marketing the Xeemo Service with the Customer. Xeemo Mark Owner Marks are also referred to as “Xeemo Marks.” Customer Mark Owner Marks are also referred to as “Customer Marks.”
4. Ownership. Title to and ownership of the Xeemo Marks, Xeemo Service, Xeemo and Xeemo Website, including all intellectual property rights to the foregoing will at all times remain the property of Xeemo. Title to and ownership of the Customer and its offerings and Customer Marks, including all intellectual property rights to the foregoing, will at all times remain the property of Customer. There are no implied licenses in this Agreement.
5. Fees. Customer agrees to pay all fees set forth in Customer’s Account. Xeemo currently charges users a monthly one dollar ($1) subscription fee, plus one dollar ($1) for each invoice sent to a Customer Patron and any third party payment processor fees paid by Xeemo in connection with any such invoice. Xeemo reserves the right to unilaterally modify its fees and payment terms hereunder at any time, with or without notice. Customer bears all collections risk related to invoices sent to Customer Patrons via the Xeemo Services. Any payments made by Customer Patrons will be automatically deposited into the payment account/method Customer provided in its Account.
6. Data, Feedback and Consents.
6.1. Customer Data. Customer grants Xeemo a non-exclusive, transferable, sublicenseable, perpetual, worldwide license to (a) use, reproduce, display, perform, create derivative works of, and distribute the Customer Data as necessary for purposes of (i) providing the Xeemo Service and (ii) as necessary for the purpose of diagnosing, correcting, and remedying any Xeemo Service problems and otherwise improving the Xeemo Service; and (b) to use, reproduce, display, perform, create derivative works of, and distribute Anonymized Data as necessary to provide other Xeemo customers industry trend and other reports containing Anonymized Data. “Customer Data” means the data made available by Customer to Xeemo through the Xeemo Service. “Anonymized Data” means Customer Data and Customer Patron Data from which identifying information has been removed (e.g., Customer’s name and Customer Patron’s name). For purposes of clarification, Xeemo will process personally identifiable information contained in the Customer Data and Customer Patron Data solely on behalf of and for Customer.
6.3. Feedback. Customer agrees that any submission of any ideas, suggestions, and/or proposals to the Xeemo through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at Customer’s own risk and that Xeemo has no obligations (including without limitation, obligations of confidentiality) with respect to such Feedback. Customer represents and warrants that it have all rights necessary to submit the Feedback and it hereby grants to Xeemo a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicenseable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use such Feedback.
7. Representations and Warranties; Indemnification.
7.1. Representations and Warranties. Each party represents and warrants to the other party that: (a) it has the right, power, and authority to enter into this Agreement and perform its obligations as set forth herein and (b) it is under no obligation or restriction that does or would interfere or conflict with its obligations under this Agreement, nor will it assume any such obligation or restriction during the term of this Agreement. In addition, Customer represents and warrants that the information it provides is true, correct, and complete and does not infringe any intellectual property rights of a third party. Furthermore, Customer represents, warrants and covenants to Xeemo that it has all rights, consents and licenses and provided all notices necessary to provide the Customer Patron Data made available by Customer in connection with this Agreement.
7.2. Each party agrees to defend and indemnify the other party from and against any and all losses, costs, damages, liabilities and expenses (including reasonable attorney’s fees) (“Losses”) incurred or arising from any claim by a third party relating to or arising out of any breach of any of the foregoing representations or warranties. Further, Customer agrees to indemnify and hold harmless Xeemo from and against any and all Losses incurred or arising from any claim by a third party relating to or arising from (a) the Customer Data; (b) Customer’s misuse of the Xeemo Service; (c) a Customer Patron with respect to any order placed through the Xeemo Service; or (d) your violation of any applicable laws, rules or regulations through or related to the use of the Xeemo Service.
8. Disclaimer of Warranties. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 7, THE XEEMO SERVICE, AND XEEMO WEBSITE ARE PROVIDED “AS IS” AND “WHEN AVAILABLE” AND XEEMO HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THIS AGREEMENT, THE XEEMO SERVICE, XEEMO AND XEEMO WEBSITE, INCLUDING ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, SYSTEM INTEGRATION, NON-INTERFERENCE OR QUIET ENJOYMENT.
9. Limitation of Liability. IN NO EVENT SHALL XEEMO BE LIABLE TO CUSTOMER FOR ANY DAMAGE OF ANY KIND, INCLUDING ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGE, OR FOR ANY LOST PROFIT, LOST DATA, OR LOST USE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR STRICT LIABILITY), RELATING TO OR ARISING OUT OF THIS AGREEMENT, THE XEEMO SERVICE, XEEMO OR XEEMO WEBSITE, EVEN IF XEEMO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL EITHER PARTY’S AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE XEEMO SERVICE, XEEMO OR THE XEEMO WEBSITE, EXCEED THE COMMISSION PAID TO XEEMO DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE WHEN THE FIRST CLAIM GIVING RISE TO THE LIABILITY AROSE.
10. Governing Law, Jurisdiction. This Agreement will be governed by the laws of [the State of California] without regard to its conflict of laws principles that would require the application of the law of a different state. Any claim or controversy arising out of or related to this Agreement shall be instituted in the state courts of [Los Angeles County, California] and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding, except that each party may seek relief in any court of competent jurisdiction to protect or enforce its intellectual property and proprietary rights.
11. Term and Termination. Unless earlier terminated as provided herein, the term of this Agreement shall begin on the Effective Date and conclude after one (1) year. Thereafter, this Agreement will automatically be extended for successive renewal terms of twelve (12) months each unless either party gives written notice of non-renewal at least thirty (30) days before the expiration of the then- current term. Either party may terminate this Agreement, including all licenses granted herein: (i) effective immediately upon written notice to the other party, if the other party materially breaches any provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party; or (ii) for convenience upon sixty (60) days written notice to the other party; provided, that, in the event of Customer’s termination for convenience, Customer shall be responsible for, and promptly pay to Xeemo, all unpaid subscription fees for the remainder of the then-current term. Xeemo may, at any time, immediately terminate this Agreement upon written notice to Customer in the event Xeemo is required by applicable law or court order, or reasonably believes that such termination is necessary to comply with applicable laws, rules or regulations. Furthermore, Xeemo may suspend the Xeemo Services, in whole or in part, if Xeemo reasonably believes such suspension is necessary to comply with applicable laws, rules and regulations, including, without limitation, suspension of delivery of invoices via the Xeemo Service to telephone numbers that have not provided or revoked their consent in accordance with applicable laws, rules and regulations. The provisions of Sections 2.2, 4, 5, 6, 8, 9, 10, 11, and 12 hereof shall survive any expiration or termination of this Agreement.
12. Miscellaneous. This Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous oral or written agreements, understandings, and communications between the parties. Customer may not assign this Agreement in whole or in part without the prior written consent of Xeemo. Any purported assignment by Customer in violation of the immediately preceding sentence shall be null and void. Subject to the foregoing limitation, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. No waiver of rights under, this Agreement shall be effective unless in a writing signed by authorized representatives of each party. Customer agrees that it will not export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Xeemo, or any products utilizing such data, in violation of the United States export laws or regulations. The parties are independent contractors and this Agreement shall not be construed or deemed to create any partnership, joint venture, agency, or franchise. Customer (a) agrees to receive communications from Xeemo in an electronic form; and (b) agrees that all terms and conditions, agreements, notices, disclosures and other communications that Xeemo provides to Customer electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” The provisions and covenants set forth in this Agreement are expressly entered into only by and between the parties, and are only for their benefit. Neither party intends to create or establish any third party beneficiary status or right (or the equivalent thereof) in any third party and no such third party shall have any right to enforce or enjoy any benefit created or established by the provisions and covenants in this Agreement.