Terms Of Service

Subject to the terms of this Agreement and the applicable Order Form(s), XperiencOps hereby grants Customer a non-exclusive right to access and use the Services during the Term. As part of the registration process, Customer will identify an administrative user name and password for Customer’s company account.
Subject to the terms of this Agreement and the applicable Order Form(s), XperiencOps hereby grants Customer a non-exclusive right to access and use the Services during the Term. As part of the registration process, Customer will identify an administrative user name and password for Customer’s company account.

2. Restriction and Responsibilities
2.1 Customer will not, and will not permit any third party to, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services; modify, translate, or create derivative works based on the Services; use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.2.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with XperiencOps’s standard published policies then in effect and all applicable laws and regulations (including export laws). Customer is solely responsible for all data, information, text, content and other materials that are uploaded, posted, delivered, provided or otherwise transmitted or stored by or on behalf of Customer in connection with or relating to the Service (“Customer Content”). Customer hereby grants XperiencOps a non-exclusive and right and license to use and modify the Customer Content in order to provide the Services. Although XperiencOps has no obligation to monitor Customer’s use of the Services, XperiencOps may do so and may prohibit any use of the Services it believes may be in violation of the foregoing. Customer shall be responsible for maintaining the security of the Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account.2.3 In accordance with XperiencOps’ request, Customer will provide XperiencOps with prompt access to its systems and equipment as necessary or useful for XperiencOps to perform the Services hereunder.

3. Confidentiality; Proprietary Rights
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of XperiencOps includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes Customer Content. The Receiving Party agrees: (i) to take reasonable precautions to protect Disclosing Party’s Proprietary Information and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any of Disclosing Party’s Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.3.2 XperiencOps shall own and retain all right, title and interest in and to (a) the Services, all improvements, enhancements or modifications thereto, whether or not developed based on Customer’s suggestions or other feedback, (b) any software, applications, inventions or other technology developed in connection with Professional Services or support, and (c) all intellectual property rights related to any of the foregoing.3.3 To the extent that Customer requests white label Services, Customer grants XperiencOps a limited, non-exclusive, non-transferable (except as permitted in Section 9), sublicensable, license for the Term to use and display Customer’s trade names, trademarks, logos, and domain names (“Marks”) solely for the purpose of white labeling the Services for Customer. Any uses of a Customer’s Marks will be in accordance with this Agreement. Customer will be entitled to request removal of any use of its Marks if, in its reasonable discretion, the use of its Marks is inconsistent with this Agreement.3.4 Customer owns all right, title and interest in and to the Customer Content and Customer Marks. Notwithstanding anything to the contrary, XperiencOps shall have the right to collect and analyze data and other information relating to the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and XperiencOps will be free (during and after the Term) to (i) use such information and data, including the Customer Content, to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other XperiencOps offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.3.5 Company reserves the right to use Customer’s name as a reference for marketing or promotional purposes on Company’s website and in other communication with existing or potential Company customers.”

4. Payment of Fees
Unless XperiencOps chooses to bill through an invoice (in its sole discretion), Customer will be required to provide XperiencOps (or its payment processor) with information regarding its credit card or other payment instrument. Customer represents and warrants that such information is true and that it is authorized to use the payment instrument. Customer will promptly update its account information with any changes that may occur. Customer will pay XperiencOps the fees described in the applicable Order Form(s) for the Services and Professional Services in accordance with the terms therein (the “Fees”), and Customer hereby authorizes XperiencOps to bill its payment instrument for such Fees. If XperiencOps chooses to bill through an invoice, full payment for invoices issued in any given month must be received by XperiencOps thirty (30) days after the mailing date of the invoice. Unpaid Fees are subject to a finance charge of 1.5% per month, or the maximum permitted by law, whichever is lower. Customer shall be responsible for all taxes associated with Services other than taxes based on XperiencOps' net income.

5. Term and Termination
5.1 Subject to earlier termination as provided below, the term of this Agreement will commence on the Effective Date and continue for the Initial Term as specified in the applicable Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Term (collectively, the “Term”), unless either party provides the other with written notice of non-renewal at least thirty (30) days prior to the end of the then-current Term.5.2 In addition to any other remedies it may have, either party may also terminate this Agreement (i) upon thirty (30) days’ notice, if the other party materially breaches any of the terms or conditions of this Agreement, (ii) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (iii) upon the other party’s making an assignment for the benefit of creditors, or (iv) upon the other party’s dissolution or ceasing to do business. Further, XperiencOps may immediately (or upon five (5) days’ notice in the case of non-payment of Fees) suspend access to the Services if Customer materially breaches this Agreement until such breach is cured. Upon any termination, XperiencOps will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter XperiencOps may, but is not obligated to, delete stored Customer Data. The provisions of Sections 2.2, 3-5, 6.3, and 7-9 shall survive any termination or expiration of this Agreement.
6. Warranty, Uptime and Disclaimer
6.1 XperiencOps represents and warrants that (a) it will perform the Services and Professional Services in a professional and workmanlike manner and (b) the Services will operate in material conformity with any specifications set forth in writing by XperiencOps.6.2 XperiencOps will use reasonable efforts to provide the Services in a manner that minimizes errors and interruptions in accessing the Services, as set forth in the Service Level Agreement attached hereto as Exhibit B.6.3 Except For The Warranties Explicitly Set Forth In Section 6.1, Xperiencops Hereby Disclaims All Warranties, Express Or Implied, Including All Implied Warranties Of Merchantability, Fitness For A Particular Purpose, Title And Non-Infringement. Xperiencops Does Not Warrant That The Services Will Be Uninterrupted Or Error Free; Nor Does It Make Any Warranty As To The Results That May Be Obtained From Use Of The Services
7. Limitation of Liability
Except For Either Party’s Indemnification Obligations Set Forth In Section 8, Either Party’s Breaches Of Section 3.1, Customer’s Breaches Of Section 2, Or Use Of The Service Or Software Or Any Part Thereof Except As Expressly Permitted Hereby, Neither Party (Nor Any Of Its Suppliers, Officers, Affiliates, Representatives, Contractors And Employees) Shall Be Liable For (A) Any Indirect, Punitive, Incidental, Special Or Consequential Damages (Including Lost Profits) Arising Out Of This Agreement Or Any Delay Or Inability To Use The Services Or (B) Any Other Damages In Excess Of The Aggregate Fees Paid (Plus Amounts Payable) To Xperiencops Hereunder In The Six (6) Month Period Prior To The Date The Claim First Arose, In Each Case Whether Based In Contract, Tort, Strict Liability Or Otherwise, And Even If Either Party Has Been Advised Of The Possibility Of Damages.
8. Indemnification
8.1 XperiencOps will defend at its expense Customer against any third-party claim, suit or proceeding (“Claim”) alleging that the Services infringe any third party intellectual property right; provided that Customer (a) promptly gives written notice of the Claim to XperiencOps; (b) gives XperiencOps sole control of the defense and settlement of the Claim (provided that XperiencOps may not settle any Claim unless it releases Customer of all liability); and (c) provides to XperiencOps, at XperiencOps cost, all reasonable assistance. Notwithstanding the foregoing, XperiencOps will have no obligation under this section or otherwise with respect to any infringement claim to the extent based upon (i) any unauthorized use, reproduction, or distribution of the Services or any breach of this Agreement by Customer, (ii) any combination of the Services with other products, equipment, software or data not supplied, authorized or recommended by XperiencOps, (iii) any modification of the Services by any person other than XperiencOps or its authorized agents or contractors or (iv) any activity after XperiencOps has provided Customer with a work around or modification that would have avoided such issue without materially adversely affecting the functionality or availability of the Services. If XperiencOps reasonably believes that all or any portion of the Services, or the use thereof, is likely to become the subject of any infringement claim, suit or proceeding, XperiencOps will procure, at XperiencOps expense, for Customer the right to continue using the Services in accordance with the terms hereof, replace or modify the allegedly infringing Service to make it non-infringing, or, in the event the preceding is infeasible or not commercially practicable, XperiencOps may, in its sole discretion, terminate this Agreement upon written notice to Customer and refund to Customer any prepaid amounts for unused Services.8.2 Customer will defend at its expense XperiencOps against any Claim alleging that the Customer Data infringes any third party intellectual property right or violates any applicable law or regulation; provided that XperiencOps (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it releases XperiencOps of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance.
9. Miscellaneous
From time to time, Customer and XperiencOps may enter into Order Forms pursuant to which Customer will purchase rights to use the Services and/or receive Professional Services. These Terms and Conditions apply to any attached Order Forms and all subsequent Order Forms to the exclusion of any other terms or conditions that either party seeks to impose or incorporate (except as expressly set forth in any applicable Order Form) or that are implied by course of dealing. Neither party will have the right to assign this Agreement, except that either party may assign its rights and obligations without consent to a successor to substantially all its relevant assets or business. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement and any dispute arising hereunder shall be governed by the laws of the State of California, without regard to the conflicts of law provisions thereof. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees. Without limiting anything herein, and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions and power failures. For all purposes under this Agreement each party shall be and act as an independent contractor and shall not bind nor attempt to bind the other to any contract. Any notices in connection with this Agreement will be in writing and sent to the address specified on the most recent Order Form or such other address as may be properly specified by written notice hereunder.