Xendee Terms of Service Agreement
Xendee is a patented, cloud-based software service which provides techno-economic planning and analysis solutions for the assessment, design and implementation of Microgrids, Mini-grids, and Distributed Energy System (DES) projects.
This document, the Xendee Terms of Service Agreement (“Agreement”), outlines the legally binding contract between you and Xendee so please read it carefully.
By using, accessing or browsing the Xendee Service, platform and products including applications, mobile, software, websites or other properties owned or operated by Xendee or by registering for a Xendee account (“Services”) you are agreeing to be bound by this Agreement for the Services provided by Xendee Inc. (“Xendee” or “we”).
If you are using the Services on behalf of an organization, you are agreeing to this Agreement for that organization and promising to Xendee that you have the authority to bind that organization to this Agreement (in which event, “you”, “customer”, and “your” will refer to that organization) unless that organization has a separate paid contract in effect with us, in which event the terms of that contract will govern your use of the Services.
1.1 “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with, a party to this Agreement, where “control” means the control, through ownership or contract, of more than 50% of all the voting power of the shares entitled to vote for the election of the entity’s directors or members of the entity’s governing body; provided that such entity shall be considered an Affiliate only for the time during which such control exists.
1.2 “Confidential Information” means the business, technical and financial information belonging to a disclosing party and its licensors, including without limitation, all software, source code, inventions, algorithms, know-how and ideas and the terms and conditions of this Agreement, that is designated in writing as confidential, or that would be reasonably understood from notices or legends, the nature of such information itself or the circumstances of such information’s disclosure to be confidential by a reasonable person familiar with the applicable industry. Confidential Information does not include information that (i) is previously rightfully known to the receiving party without restriction on disclosure, (ii) is or becomes known to the general public, through no act or omission on the part of the receiving party, (iii) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, or (iv) is independently developed by the receiving party without use of any Confidential Information of the disclosing party.
1.3 “Customer Data” means all content, data and information input into the Services by or on behalf of Customer and the output generated by Customer through the use of the Services.
1.4 “Documentation” means any administration guides, user guides, videos, and release notes that are normally provided by Xendee to end users of the Services, as they may be updated from time to time by Xendee in its sole discretion.
1.5 “Intellectual Property Rights” means patents, copyrights, trademarks, know-how, trade secrets, moral rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
1.6 “Effective Date” means the date which is the earlier of (a) your initial access to Services through any registration or order process, or (b) the effective date of the first order on a Xendee order form referencing this Agreement.
1.7 “Scope of Use” means the specific scope of usage of the Services permitted under this Agreement.
1.8 “Seats” means the number of named individuals permitted to concurrently access and use the Services during the Term. Each such individual must be an employee of Customer or its Affiliate, or a consultant utilizing the Services solely for the benefit of Customer or its Affiliate.
1.9 “Third Party Components” means software programs owned or controlled by third parties that Xendee makes accessible to Customer through the Services. Customer restrictions and obligations with respect to the Services will also apply to Third Party Components, unless otherwise specified in this Agreement.
1.10 “Term” means the term of this Agreement as set forth in Section 7.1.
2. RESTRICTIONS AND ACCESS TO SERVICES
2.1 Services Access. Subject to Customer’s compliance with the terms and conditions of this Agreement, Xendee grants to Customer a non-exclusive, non-sublicensable, non-transferable limited license during the Term to access the Services via the Xendee platform located at https://www.xendee.com or any other website specified by Xendee and use the Services on a hosted basis solely within the Scope of Use. Use of the Services shall at all times be (i) in accordance with the Documentation and (ii) for only up to the number of licensed Seats.
2.2 Restrictions. There are no implied licenses under this Agreement, and Xendee and its licensors reserve all right, title, and interest in and to the Services except for the licenses expressly granted to Customer under this Agreement. All software licensed pursuant to this Agreement is unpublished copyrighted material, constitutes trade secrets and proprietary data of Xendee and is Confidential Information of Xendee.
Customer will not and will not allow a third party to: (i) decompile, reverse engineer, disassemble or otherwise attempt to derive, analyze or use any source code or underlying ideas or algorithms related to the Services by any means whatsoever (except to the extent that such restrictions are prohibited by applicable statutory law); (ii) remove or alter any product identification, copyright or other notices; (iii) except as expressly and specifically described in the Scope of Use, use or allow the use of the Services by or for the benefit of third parties, including without limitation by renting, leasing, lending, timesharing, or using for service bureau purposes; or (iv) except as specified in the Documentation provided by Xendee, incorporate into or with other software any part of the Services.2.3 Support. Xendee will implement updates to the Services and provide technical support and maintenance in accordance with the service levels described in Appendix B.
2.4 XENDEE Ownership of Services. As between the parties, Xendee shall have and retain all rights, title, and interest, and all Intellectual Property Rights, in and to the Services. Customer hereby grants to Xendee a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Services.
2.5 Services Modifications. Xendee may upgrade, modify or delete any features of the Services (i) for which such upgrades, modifications or deletions would not have a material adverse impact on the Services; or (ii) as may be reasonably necessary to meet any applicable legal, regulatory, or industry-standard requirements or demands. Xendee shall notify Customer at least fifteen (15) days in advance of such changes to the Services under clause (ii) that have a material adverse impact on the Services.
3. PROFESSIONAL SERVICES
3.1 Professional Services. From time to time, Customer may engage Xendee to provide certain professional services as requested (“Professional Services”). Each such engagement for Professional Services will be described in a statement of work that must be accepted in writing by an authorized representative of each party. In the event of a conflict between the terms provided in this Agreement and the terms of any statement of work, the terms of this Agreement will prevail, except that the terms of the statement of work shall prevail over conflicting terms of this Agreement (but only with respect to such statement of work) where the statement of work explicitly identifies such conflicting terms and confirms the intent of the parties to supersede or modify the conflicting term of this Agreement.
3.2 Ownership of Work Product. Unless otherwise expressly agreed in writing by the parties, Xendee shall own all intellectual property rights in and to any developments, works-of-authorship and inventions made or invented by Xendee or its Affiliates (or its or their contractors) in the course of conducting the Professional Services.
4.1 Security Procedures. Xendee has put in place commercially reasonable security procedures designed to protect and prevent unauthorized access to Customer Data. You will use reasonable efforts to prevent any unauthorized access to or use of Services and the Documentation, and will promptly notify Xendee in writing of any unauthorized access or use of which you become aware and provide all reasonable cooperation to prevent and terminate such access or use.
4.2 Customer Ownership of Data. As between the parties, Customer Data shall be the property of the Customer, and Customer shall have and retain all rights, title, and interest, and all Intellectual Property Rights, in such Customer Data. Customer represents and warrants to Xendee that Customer has the right and authority to deliver the Customer Data to the Services in connection with the provision of the Services hereunder.
4.3 “Sensitive Data” means any personally identifiable information relating to health/genetic or biometric information; religious beliefs or affiliations; political opinions or political party membership; labor or trade union membership; sexual preferences or practices; national, racial or ethnic origin; philosophical or moral beliefs; criminal record, investigations or proceedings or administrative proceedings; or any other “sensitive data” category specifically identified under any applicable laws.
4.4 “Standard Personal Information” means name, business contact details (work telephone number, cell phone number, e-mail address and office address and location), personal contact details (home telephone number, cell phone number, other telephone, e-mail address and physical address), geolocation and employee ID.
4.5 No Obligations. Customer acknowledges and agrees that Xendee does not require or “pull” any specific data from Customer, that Customer controls which data, and its content, is input through the use of the Services [and which data is sent and to whom such data is sent], and that Xendee has no obligation to monitor the content of any data. Customer shall be responsible for procuring any necessary consents and making any notifications under applicable law with respect to the provision of the data to Xendee and the processing of such data by Xendee through the Services. Further, Customer acknowledges and agrees that (i) Xendee’s Services is not intended to transmit Sensitive Data, or health-related or financial-related information (including nonpublic information collected by financial institutions subject to regulations specific to the conduct of financial services), and (ii) that Customer is solely responsible for complying with any and all applicable privacy laws governing Customer’s use, transmission and input of Standard Personal Information into the Services. Xendee may gather Services usage data for the purpose of optimizing the Services.
5. FEES AND PAYMENT
5.1 Fees. In consideration of Xendee’s grant of the licenses granted herein, Customer shall pay to Xendee the amounts quoted to you. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
5.2 Payment and Taxes. Unless otherwise expressly agreed in writing by the parties all invoiced amounts will be due and payable thirty (30) days after the date of the invoice. Overdue amounts will be subject to a late payment charge at the lesser of one and one half percent (1.5%) per month or the highest rate permissible under applicable law for the actual number of days elapsed from the date due. All billing and payment will be in United States dollars only.
All payments hereunder are exclusive of all taxes, and Customer agrees to pay any taxes, whether foreign, federal, state, local or municipal that may be imposed upon or with respect to the services performed or technology provided hereunder, exclusive of taxes on Xendee’s net income.
5.3 Subscriptions and billing options: You may elect one of the following billing options (please note that there might be only one of these options available depending on the Services purchased):
A monthly billing plan (“Monthly Billing Plan”). The subscription period for the Monthly Billing Plan will be for one year. Customers may opt-out at any time during the first 30-day period from start of the initial subscription with no further obligation other than the fees for the first month’s subscription. Monthly Billing Plan subscriptions will automatically renew unless you cancel your subscription at least five business days prior to the annual renewal date. You will be billed on or about the same day each month until such time that you cancel. If you select the Monthly Billing Plan, you can switch to the Annual Billing Plan at any time.
An annual billing plan (“Annual Billing Plan”). The subscription period for the Annual Billing Plan will be for one year. Customers may not opt out. Annual Billing Plan subscriptions will automatically renew each year unless you cancel at least five business days prior to your renewal date. You will not be permitted to cancel, reduce the number of seats, or downgrade the Services you have selected until the anniversary date. You will be billed annually on or about the same day each year until such time that you cancel. If you select the Annual Billing Plan, you may not change to the Monthly Subscription Plan until the end of the one-year term of your Annual Billing Plan.
6. DISCLAIMER AND WARRANTIES
6.2 Additional Xendee Representations. Xendee represents and warrants that: (i) the Services will include the features and functionality set forth in the Documentation for the Services; and (ii) all customer support, training and other services to be performed hereunder shall be performed in a professional and workmanlike manner consistent with industry standards.
6.1 Mutual Representations. Each party represents and warrants that: (i) it has the full corporate right, power and authority to enter into this Agreement, to grant the rights granted hereunder and to fully perform its obligations under this Agreement; (ii) the execution of this Agreement by such party, and the performance by such party of its obligations hereunder, does not and will not violate or conflict with any agreement to which such party is a party or by which it is otherwise bound; and (iii) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
6.3 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES AND MATERIALS (INCLUDING SOFTWARE) PROVIDED HEREUNDER BY XENDEE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND NEITHER XENDEE NOR ITS SUPPLIERS MAKE ANY WARRANTIES, AND HEREBY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. XENDEE DOES NOT WARRANT AND EXPRESSLY DISCLAIMS ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, AND DOES NOT WARRANT THAT USE WILL BE UNINTERRUPTED OR ERROR-FREE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
7. TERM AND TERMINATION
7.2 Effects of Termination. Upon termination of this Agreement, all rights to access the Services will immediately cease, and (i) Customer will promptly discontinue all use of the Services; (ii) Customer will no longer have access to the Customer Data that is stored with the Services, (iii) any Customer Data stored with the Services may not be retrievable and Xendee will have no obligation to maintain Customer Data stored in your account.
8.1 Xendee General Indemnification. Xendee will defend, indemnify, and hold harmless Customer and its employees (“Customer Indemnitees”) from and against any and all liability, loss, damage, expense (including reasonable attorneys’ fees and expenses) and cost (collectively, a “Liability”) that the Customer Indemnitee may be required to pay to one or more third parties resulting from or arising out of: (i) any gross negligence or willful misconduct by Xendee; or (ii) any breach of Section 4 (Data) by Xendee.
8.2 XENDEE IP Indemnification. Xendee will defend, indemnify, and hold harmless the Customer Indemnitees from and against any and all Liability that the Customer Indemnitee may be required to pay to one or more third parties resulting from or arising out of a claim that the Platform Service directly infringes a copyright, patent issued as of the Effective Date, or other intellectual property right of a third party. The foregoing obligation of indemnification does not apply where: (a) Customer’s use of the Platform Service is not in compliance with the terms of this Agreement; (b) Customer has modified the Platform Service or any part thereof without Xendee’s express, written authorization; (c) Customer has combined the Platform Service with software, hardware, system, data, or other materials not supplied or authorized by Xendee, to the extent the claim arises from such combination; (d) Customer Data; or (e) Customer continues use of the Platform Service after Customer was notified of actual or potential infringement from Customer’s use of the Platform Service. In the event Xendee believes that the Platform Service is, or is likely to be, the subject of an infringement claim, Xendee may, at its option, (1) procure for Customer the right to continue using the Platform Service under this Agreement, (2) replace or modify the Platform Service so that it becomes non-infringing but substantially equivalent in functionality and performance, or (3) if neither clause (1) or (2) are feasible in spite of Xendee’s reasonable efforts, terminate this Agreement and refund a prorated portion of any prepaid subscription fees for services not yet rendered. The foregoing obligations are Xendee’s only obligations and liability in connection with infringement by the Platform Service.
8.3 Customer Indemnification. Customer agrees to indemnify, defend and hold harmless Xendee and its Affiliates, licensors and suppliers from and against all Losses arising out of: (i) Customer’s breach of Sections 4 (Data); (ii) use of Customer Data by Xendee in connection with its performance of the Platform Service; or (iii) Customer’s gross negligence, fraud or willful misconduct.
8.4 Indemnification Procedures. Each party seeking indemnification hereunder shall provide the other party with: (i) prompt written notice of any claim for which indemnification is sought; (ii) complete control of the defense and settlement of such claim; provided that (A) any such settlement shall contain a full and irrevocable release of the party seeking indemnification and (B) without the party seeking indemnity’s prior written consent, no party may settle any claim if such settlement involves an admission of wrongdoing or involves any criminal proceeding against the party seeking indemnification; and (iii) reasonable assistance and cooperation in such defense at the indemnifying party’s expense. In any proceeding the indemnified party shall have the right to retain, at its expense, its own counsel. Notwithstanding the foregoing, the indemnifying party may not enter into a settlement of a claim that involves a remedy other than the payment of money by the indemnified party (which amounts must be subject to indemnification by the indemnifying party) without the indemnified party’s written consent.
9. LIMITATIONS OF LIABILITY
9.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO OBLIGATIONS UNDER SECTION 8 (INDEMNIFICATION), NEITHER XENDEE NOR ITS SUPPLIERS SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE FEES RECEIVED BY XENDEE IN RESPECT OF THE PLATFORM SERVICE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE FIRST NOTICE IS PROVIDED BY EITHER PARTY REFERENCING THE RELEVANT CLAIM HEREUNDER; (II) ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS; (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES; (IV) LOSS, INACCURACY, OR CORRUPTION OF DATA OR INTERRUPTION OF USE; OR (V) ANY MATTER BEYOND ITS REASONABLE CONTROL. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10.1 Except as expressly and unambiguously allowed herein, each party will hold in confidence and not use or disclose any Confidential Information of the other party and shall similarly bind its employees, consultants, independent contractors and clients in writing. If required by law, the receiving party may disclose Confidential Information of the disclosing party but will give adequate prior notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment thereof. At any time during the or after the term of this Agreement, each party shall, at the request of the other party, delete or return all Confidential Information of the other party, except that a party may retain one copy of Confidential Information in inactive archives solely for the purpose of establishing the contents thereof; provided, for avoidance of doubt, that Xendee may not retain any copies of Customer Data input to the Platform Service by Customer.
11.1 The Platform Service and related technical data may be subject to U.S. export control laws, including without limitation the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer shall comply with all such regulations and agrees to obtain all necessary licenses to export, re-export, or import the Platform Service and related technical data.
12.1 Assignment. Neither party may assign this Agreement without the prior written consent of the other party, except (i) to an entity that acquires all or substantially all of its assets or business, whether through merger, reorganization or otherwise or (ii) an Affiliate of such party. The assigning party shall provide prompt written notice to the other party of any such assignment. This Agreement shall be binding upon and shall inure to the benefit of the respective parties hereto, their respective successors and permitted assigns.
12.2 No Agency. Xendee and Customer each acknowledge and agree that the relationship established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to: (i) give either party the power to direct or control the day-to-day activities of the other; (ii) deem the parties to be acting as partners, joint venturers, co-owners or otherwise as participants in a joint undertaking; or (iii) permit either party or any of either party’s officers, directors, employees, agents or representatives to create or assume any obligation on behalf of or for the account of the other party for any purpose whatsoever.
12.3 Compliance with Laws. Each party agrees to comply with all applicable laws, regulations, and ordinances relating to their performance hereunder. Without limiting the foregoing, Customer warrants and covenants that it will comply with all then-current laws and regulations of the United States and other jurisdictions relating or applicable to Customer’s use of the Platform Service including, without limitation, those concerning Intellectual Property Rights, invasion of privacy, defamation, and the import and export of software.
12.4 Notices. Any notice required or permitted hereunder shall be in writing in English and shall be delivered as follows (with notice deemed given as indicated): (i) by personal delivery when delivered personally; (ii) by established overnight courier with delivery confirmation; (iii) by certified or registered mail, return receipt requested, upon verification of receipt; or (iv) via email with verified, non-automated receipt (provided, however, that notices of breach, termination or extension are not valid unless also sent and received by one of the other methods stated herein). Notices shall be sent to the persons and addresses set forth on the customer signature page. Either party may change its contact person for notices and/or address for notice by means of notice to the other party given in accordance with this Section.
12.5 Governing Law; Venue and Jurisdiction. This Agreement shall be interpreted according to the laws of California without regard to or application of choice-of-law rules or principles. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in San Diego, CA and the parties hereby consent to the personal jurisdiction and venue therein.
12.6 Publicity. During the term of this Agreement, Xendee may use Customer's name or logo for marketing purposes.
12.7 Injunctive Relief. The parties agree that monetary damages would not be an adequate remedy for the breach of certain provisions of the Agreement, including, without limitation, all provisions concerning infringement, confidentiality and nondisclosure, or limitation on permitted use of the Platform Service. The parties further agree that, in the event of such breach, injunctive relief would be necessary to prevent irreparable injury. Accordingly, either party shall have the right to seek injunctive relief or similar equitable remedies to enforce such party’s rights under the pertinent provisions of the Agreement, without limiting its right to pursue any other legal remedies.
12.8 Entire Agreement and Waiver. This Agreement shall constitute the entire agreement and contains all terms and conditions between Xendee and Customer with respect to the subject matter hereof and all prior agreements, representations, and statement with respect to such subject matter are superseded hereby, except, for clarity, that any confidentiality agreements between the parties, if any, shall continue to apply in accordance with their terms with respect to information disclosed under such agreements. This Agreement may be changed only by written agreement signed by authorized representatives of both Xendee and Customer. No failure of either party to exercise or enforce any of its rights under this Agreement shall act as a waiver of subsequent breaches; and the waiver of any breach shall not act as a waiver of subsequent breaches
12.9 Severability. In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law, and the other provisions of this Agreement will remain in full force and effect. The parties further agree that in the event such provision is an essential part of this Agreement, they will begin negotiations for a suitable replacement provision.
12.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered (including by facsimile or electronic transmission), shall be deemed an original, and all of which shall constitute the same agreement.
12.11 Force Majeure. Neither party will be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control, including any act of God, or any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delays in transportation or communications or any act or failure to act by the other party, its employees, agents or contractors. The parties will promptly inform and consult with each other as to any of the above causes, which in their judgment may or could be the cause of a substantial delay in the performance of this Agreement.
12.12 United States Government Users. If a user or Customer of the Platform Service is an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Platform Service, or any related documentation of any kind, including technical data or manuals, is restricted in accordance with Federal Acquisition Regulation 12.212 for civilian agencies and Defense Federal Acquisition Regulation 227.7202 for military agencies. The Platform Service is commercial computer software and the related documentation is commercial computer software documentation. The use of the Platform Service and related documentation is further restricted in accordance with the terms of this Agreement, and any modification hereto.
1. Commitment. Xendee shall provide Level 1 Support, Level 2 Support, and Level 3 Support in accordance with this Exhibit. Xendee shall not be required to provide any maintenance and/or support for the Services other than as described on this Exhibit.
(a) “Business Days” means Monday through Friday, with the exception of United States federal or bank holidays.
(b) “Business Hours” means 8am to 5pm on Business Days.
(c) “Error” means a defect in the Services that results in the Services not functioning in material conformity with the written product Documentation provided by Xendee to Customer regarding the Services.
(d) “Error Correction” means a change to the Services or the applicable written product Documentation (or a workaround) that is in a form that allows its application to the Services or inclusion in the written product Documentation to reestablish material conformity with the written product documentation.
(e) Providing “Level 1 Support” means:
i. Maintaining a method of permitting Customer and Authorized Users to contact Xendee for support purposes;
ii. Logging support calls from Customer and Authorized Users. Logs will be maintained for the purposes of creating reports and statistics as well as ensuring follow up with the Customer and Authorized Users;
iii. Assisting Customer and Authorized Users that have questions or problems with logging in to access the Services; performing per the documentation or with their environment;
iv. Assisting Customer and Authorized Users with techniques for using the Services; and
v. Passing problems that are more complex or require a fix to the Services to Level 2 Support, and documenting the problem sufficiently so that Level 2 Support can determine if the problem is a true software bug or an Authorized User problem in using the Services.
(f) Providing “Level 2 Support” means:
i. Providing advanced product and environment support to Customer under special circumstances or where Customer is unable to resolve the issue; and
ii. Determining whether the reported problem is a true bug in the Services or in the particular way it is being used in an individual Authorized User’s environment.
iii. Passing the bug to Level 3 Support with proper documentation that proves the bug exists.
(g) Providing “Level 3 Support” means: Providing a service to resolve reproducible problems reported and documented by Level 2 Support that are determined to be, or are highly probable to be the result of a software defect and which requires software engineering knowledge or expertise to isolate and resolve.
3. Maintenance. Xendee shall provide Customer with Error Corrections. Xendee shall make available such Error Corrections to Customer at the time that such Error Corrections are made available generally to Xendee customers to which Xendee provides similar services.
Delivery of Error Corrections shall be electronically via notice of such Error Correction to Customer. Any and all Error Corrections so developed and delivered by Xendee shall be exclusively owned by Xendee, shall be deemed part of the Services, and shall be licensed to Customer in accordance to the terms and conditions of the Agreement.
4. Error Response and Notification
(a) Error Classification. Xendee shall respond to Errors reported by Customer according to their severity as set forth below:
Table 1. Classification of Errors
An Error that results in catastrophic failure of the Services.
An Error that results in the Services being usable, subject to major restrictions on essential workflows of the Services, for which there are no workarounds.
An Error that results in the Services being usable, subject to major restrictions on essential workflows of the Services, for which there are available workarounds, or an Error that disables non-essential workflows, when a workaround does not exist.
An Error that results in inconveniences for users of the Services which are not critical to the operation of the Services and for which there are workarounds.
(b) Response Time. Upon receipt from Customer of a report of a suspected Error, Xendee shall respond regarding the reported suspected Error within the following time period, in each case during Business Hours:
Table 2. Response Time
Xendee will engage with Customer within thirty (30) minutes of receipt of problem report from Customer. An action plan will be provided within four (4) hours of notification. Communication with Customer will occur every eight (8) hours at a minimum.
Xendee will engage with Customer within four (4) hours of receipt of problem report from Customer. An action plan will be provided within one (1) Business Day. Communication with Customer will occur weekly at a minimum.
Xendee will engage with Customer within ten (10) days of receipt of problem report from Customer. An action plan will be provided within ten (10) Business Days. Communication with Customer will occur periodically as agreed upon with Customer.
Xendee will engage with Customer within thirty (30) days of receipt of problem report from Customer.
(c) On‐Site Support. All efforts described above in Table 2 shall be performed on Xendee’s premises. Should any on-site effort be agreed upon by Xendee and Customer, Customer shall pay Xendee all travel expenses and Xendee’s then per-diem rate. Customer shall approve such on-site visits in advance.
(d) Notification of Errors by Customer. As a condition to Xendee providing support with respect to an Error, Customer shall report the Error in accordance with Xendee’s standard reporting procedures as described in Table 3 below. Customer shall designate up to three (3) individuals (hereafter “Designated Error Reporters”, or “DERs”) who are authorized to report Errors to Xendee.
Errors reported correctly to Xendee by a DER will be acknowledged by a Xendee designated technical account manager (hereinafter “Account Manager”), or their designee, who are sufficiently trained to direct efforts to assess the Error and respond by Xendee in accordance with Table 3 below.
Table 3. Customer notification procedure and acknowledgement by Xendee
Customer Notification Procedure
Immediate communication via telephone call, email, and text message by designated support representative. Error reports will be acknowledged via telephonic and e-mail response by Xendee within thirty minutes of receipt.
Telephonic or email communication by designated support representative. Error reports will be acknowledged via telephonic response by Xendee within four hours.
Telephonic or email communication by designated support representative. Error reports will be acknowledged via telephonic response by Xendee within one (1) Business Day.
Telephonic or email communication by designated support representative. Error reports will be acknowledged via telephonic response by Xendee within one (1) business day.
“Non–error” proposed changes or enhancements
Via email or online supporting mechanism.
(e) Escalation Procedures. In the process of responding to all Severity 1 Errors, Xendee and Customer shall designate a representative to be available by cell phone or other similar mode of communication outside of Business Hours in order to confer regarding the Error resolution process. If Xendee fails to meet the obligations in Table 2 with respect to a Severity 1 Error and Customer has met its obligations set forth in Section 6 below, Customer may require that the following representatives of Xendee be engaged in the resolution process as follows, each within the period of allotted time as specified in Table 4 below:
Table 4. Escalation Path for Severity 1 Errors
If an action plan is not provided within 6 hours: Account Manager
If an action plan is not provided within 12 hours: Director
If an action plan is not provided within 24 hours: Chief Software Architect
5. Documentation. Following an Error Correction, Xendee will supply Customer as soon as available for general distribution, one (1) copy of modifications of, supplements to, or new versions of the documentation for the Services, if any.
6. Conditions to Receipt of Support from Xendee. In order for Customer to obtain from Xendee the maintenance and support services described herein, Customer shall fulfill the following obligations:
(a) Customer shall provide Xendee all information necessary for diagnosis of Severity 1, 2 and 3 Errors within the response times set forth above, including the configuration of hardware and system operating software on the applicable hardware, and the communication interfaces, insofar as these are significant. Customer acknowledges that if it does not comply with this condition or if erroneous or inadequate information is provided, then Xendee cannot be held accountable for delays in, or improper performance of, the Xendee maintenance and support services. Under no circumstances does Xendee warrant or represent that all Errors can or will be corrected. As necessary to provide the support services as set forth in this Exhibit, Customer shall require each applicable Authorized User to provide Xendee with remote access to such Authorized User interfaces with the Services, if any. Further, Customer and Authorized User shall be responsible for procuring, installing, and maintaining all applications, equipment, telephone lines, communications interfaces, and other hardware necessary to obtain from Xendee the services described above.
(b) Customer shall provide experienced IT professionals and customer service representatives with training regarding the Services to collaborate with Xendee on fixing errors and implement any Error Correction, enhancements, solution, workaround, or other such fix.
Acceptable Use Policy
For purposes of this Acceptable Use Policy, “Customer” refers to (i) any customer of the Services and (ii) each individual user of the Service.
1. No Spam. Customer shall not use the Services to send unsolicited messages (also known as “spam”), or to send any communication to any recipient that has not authorized Customer to send such communication, or to send commercial or marketing messages of any kind.
2. No Deception. Any message Customer sends in connection with its use of the Services shall (i) accurately and in a non-deceptive manner identify Customer, (ii) not contain any deceptive or misleading content regarding the message’s subject matter, (iii) include Customer’s valid physical address; and (iv) comply with all applicable laws.
3. Age of Majority. The Services are not designed for use by individuals under the age of 18 (or, if the age of majority in such individual’s jurisdiction is greater than 18, such age). Customer represents and warrants that it, and all individuals whom it permits to access the Services, are of the requisite age.
4. No Harmful Behavior. Customer shall not breach any agreement with Xendee. Customer shall not, and shall not authorize or facilitate any attempt by another person to use the Services to:
i. Damage, disable, overburden, impair or interfere with any other party’s use of the Services;
ii. Obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services;
iii. Use false or misleading information in connection with Customer’s user account or impersonate any other person living or dead;
iv. Use the Services in a manner that harasses, violates any applicable statute, law, rule, regulation or court order, is fraudulent, or infringes any proprietary or privacy right
v. Solicit or submit personal information from children under 18 years of age;
vi. Circumvent, remove or otherwise interfere with any security-related features or limitations in the Services, features that prevent copying or using any part of the Services or features that enforce limitations on the use of the Services;
vii. Modify, or attempt to modify, any document or transaction executed through the Services after it has been executed;
viii. Introduce viruses, worms, Trojan horses and/or harmful code to the Services; or
ix. Use any robot, spider, site search/retrieval application or other automated device, process, or means to access, retrieve, scrape or index any portion of the Services or any content.
Xendee reserves the right to modify this Acceptable Use Policy at any time in its sole discretion upon written notice to Customer.
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