Customer Terms of Service

Xenia Platform Inc., a Delaware corporation (“Xenia”), is in the business of, among other things, providing a software as a service (SaaS) operations, communication, and workforce management platform (the “Services”) by, among other means, mobile applications (the “Applications”) and websites at, among other locations, www.xenia.team (the “Websites”).

These customer terms and conditions of service (these “Terms”) are a binding agreement between any person that registers as a customer in accordance with Xenia’s customer registration procedures in effect from time to time for purposes of gaining access for such customer’s personnel to use the Services (each, a “Customer”). The relationship between Xenia and Customer under these terms until duly expired or terminated is the “Customer Relationship”.

1. Service Plans

Xenia provides the Services under a number of plans tailored to the needs of its customers, the fees, payment schedule, and initial and renewal term terms and conditions for which Xenia may publish from time to time on the Websites or convey to and confirm with Customer directly through written communications (each, a “Service Plan”). The latest Service Plan that Customer has selected and not cancelled or replaced with a different Service Plan is Customer’s “Selected Service Plan”.

2. Access and Use

2.1 Rights Grant

Subject to and conditioned on Customer’s payment of all applicable Fees and compliance with all other terms and conditions these Terms contain, Xenia hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the Customer Relationship solely for Customer’s Authorized Users’ use for Customer’s own internal business purposes in accordance with the terms and conditions these Terms contain. Xenia will provide to Customer the necessary access credentials to allow Customer’s Authorized Users to access and use the Services.

2.2 Authorized Users

Customer may designate as Authorized Users no more than the number of individuals specified in Customer’s Selected Service Plan (the “Authorized User Count”). Customer will ensure that the number of individuals that access or use the Services under the rights Xenia has granted to Customer pursuant to these Terms does not exceed at any time the Authorized User Count or, if fewer, the number of Authorized Users with respect to which Customer has paid in full all applicable Fees as at such time. “Authorized Users” means, collectively, as at any specified time of determination, all Customer’s employees, consultants, contractors, and agents that Customer has authorized to access and use the Services under the rights Xenia has granted to Customer pursuant to these Terms, for whom Customer has paid all applicable fees for access to the Services under these Terms, and whose User Rights (as defined in the applicable user terms of service) have not been suspended or terminated pursuant to Xenia’s user terms of service applicable to any of its Services, including any of its Applications and Websites, as in effect from time to time.

2.3 Documentation License

Xenia hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Customer Relationship solely for Customer’s Authorized Users’ use in connection with their use of the Services for Customer’s own internal business purposes in accordance with the terms and conditions these Terms contain.

2.4 Use Restrictions

Customer will not, and will not cause, permit, or assist any other Person (including any Authorized User) to, directly or indirectly access or use the Services or Documentation to any extent, in any manner, or for any purpose beyond the scope of the access and use these Terms grant. Except strictly to the extent these Terms otherwise expressly permit, Customer will not, and will not cause, permit, or assist any other Person (including any Authorized User) to, directly or indirectly:

1. Copy, modify, or create derivative works or improvements of the Services or Documentation or other Xenia Property, in whole or in part.
2. Rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available to any Person the Services or Documentation or other Xenia Property, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service.
3. Reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component or source code of the Services or other Xenia Property, in whole or in part.
4. Input, upload, transmit, or otherwise provide to or through the Services or Xenia’s information technology infrastructure (including computers, software, hardware, databases, electronic systems (including database management systems), and networks), whether Xenia operates it directly or through use of third-party services and whether Xenia uses it in connection with providing the Services or not (collectively, “Xenia Systems”), any information or materials that are unlawful or injurious, or contain, transmit, or activate any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any computer, software, firmware, hardware, system, or network, or any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby.
5. Damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services or other Xenia Property, or Xenia’s provision of any services to any other Person, in whole or in part.
6. Bypass or breach any security device or protection that the Services or other Xenia Property use, or by which access or use of the Services or other Xenia Property is protected, other than, in the case of any Authorized User, such Authorized User’s use of such Authorized User’s own then-valid access credentials.
7. Remove, delete, alter, or obscure any trademarks, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services or Documentation or other Xenia Property, including any copy thereof.
8. Access or use the Services or Documentation or other Xenia Property for purposes of competitive analysis thereof, the development, provision, or use of a competing software service or product, or any other purpose that is to the Xenia’s detriment or commercial disadvantage.
9. Access or use the Services or Documentation or other Xenia Property in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any Person, or that violates any applicable law.

2.5 Reservation of Rights

Xenia hereby reserves all rights it does not expressly grant to Customer in these Terms. Except for the limited rights and licenses Xenia expressly grants to Customer under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in, to, or under the Xenia Property.

2.6 Service Suspensions and Terminations

Xenia may, directly or indirectly, and by use of any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) Xenia or its designee uses to disable Customer’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of Xenia or its designee or any other lawful means, temporarily suspend (each, a “Service Suspension”) or terminate or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or Xenia Property, without incurring any resulting liability of any kind, if:

1. Xenia receives any judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Xenia to do so.
2. Xenia reasonably determines that there is a threat or attack on any of the Xenia Property.
3. Xenia reasonably determines that Customer’s or any Authorized User’s use of the Xenia Property disrupts or poses a security risk to the Xenia Property or to any other customer or vendor of Xenia.
4. Xenia reasonably determines that Customer or any Authorized User is using the Xenia Property for fraudulent, misleading, or illegal activities.
5. Xenia reasonably determines that Customer or any Authorized User has failed to comply with any provision these Terms contain or has accessed or used the Services or other Xenia Property beyond the scope of the rights these Terms grant or for a purpose these Terms do not authorize.
6. Xenia reasonably determines that a bankruptcy event has occurred with respect to Customer.
7. Xenia reasonably determines that applicable law prohibits Xenia from providing the Services to Customer or any Authorized User.
8. Any vendor of Xenia has suspended or terminated Xenia’s access to or use of any third-party services or products required to enable Customer to access the Services.
9. The Customer Relationship expires or is terminated.

Xenia will use commercially reasonable efforts to give notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Xenia will use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Xenia will have no liability of any kind for any Losses or other consequences that Customer or any Authorized User may incur as a result of a Service Suspension. This Section 2.6 does not limit in any respect any of Xenia’s other rights or remedies, whether at law, in equity, or under these Terms.

2.7 Subcontractors

Xenia may from time to time in its sole discretion engage unaffiliated third parties to provide any part of the Services (each, a “Subcontractor”).

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3. Customer Obligations

Customer will be responsible and liable for all access to and use of the Services and other Xenia Property resulting from access or use that Customer directly or indirectly authorizes or provides, whether these Terms permit or prohibit such access or use. Without limiting the generality of the immediately preceding sentence, Customer will be responsible and liable for all acts and omissions of Authorized Users. Any Authorized User’s act or omission that would constitute a breach of these Terms if Customer had taken such act or made such omission will be deemed a breach of these Terms by Customer. Customer will take reasonable efforts to make all Authorized Users aware of these Terms’ provisions as applicable to such Authorized User’s access to and use of the Services and other Xenia Property and will cause all Authorized Users to comply with such provisions. Xenia will not be responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing or failure to perform any of its obligations under these Terms.

4. Fees and Payments

4.1 Fees

Customer will pay Xenia without offset or deduction the fees (collectively, “Fees”) specified for Customer’s Selected Service Plan.

4.2 Payments

Customer will make all payments under these Terms in United States dollars in accordance with the payment instructions and procedures specified for Customer’s Selected Service Plan.

4.3 Taxes

All Fees and other amounts payable by Customer under these Terms are exclusive of taxes and similar assessments. Without limiting the generality of the immediately preceding sentence, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes of any kind imposed by any governmental authority on any amounts payable by Customer under these Terms, other than any taxes imposed on Xenia’s income.

4.4 Late Payments

If Customer fails to make any payment when due, without limiting in any respect Xenia’s other rights and remedies:

1. Xenia may charge interest on the past due amount at The Wall Street Journal prime rate plus nine percentage points per annum calculated daily and compounded monthly or, if lower, the highest rate applicable law permits.
2. Customer will reimburse Xenia for all expenses Xenia incurs in collecting any late payments or interest.
3. If such failure continues for three business days or more, Xenia may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.

4.5 No Deductions or Setoffs

Customer will pay all amounts payable to Xenia under these Terms in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.

4.6 Fee Increases

Xenia may increase Fees from time to time in its sole discretion, which increased Fees will be applicable and payable in the renewal term next succeeding the then-current term so long as Xenia provides Customer notice of such increase not fewer than five business days before the time the then-current term would automatically renew if Customer does not give notice of termination before such time.

5. Term and Termination

5.1 Term

The term of the Customer Relationship and applicable automatic renewals thereof are as specified in Customer’s Selected Service Plan.

5.2 Termination

Xenia may terminate the Customer Relationship at any time with notice to Customer if Customer is in breach of these Terms in any material respect and Customer has not cured such breach within thirty days of receipt from Xenia of notice thereof or, in the case of any breach of a payment obligation, within five business days of receipt from Xenia of notice thereof, or if a bankruptcy event has occurred with respect to Customer. Customer may terminate the Customer Relationship at any time with notice to Xenia if Xenia is in breach of these Terms in any material respect and Xenia has not cured such breach within thirty days of receipt from Customer of notice thereof, or if a bankruptcy event has occurred with respect Xenia. Xenia or Customers may also terminate the Customer Relationship at any time with notice to the other in accordance with Customer’s Selected Service Plan.

5.3 Survival

All provisions of these Terms that, by their nature, should survive termination of the Customer Relationship, including accrued rights to payment, indemnification and confidentiality obligations, warranty disclaimers, and limitations of liability, will survive termination of the Customer Relationship.

6. Confidentiality

Each Party (the “Disclosing Party”) has disclosed or may disclose to the other Party (the “Receiving Party”) business, technical, or financial information relating to the Disclosing Party’s business (collectively, the Disclosing Party’s “Proprietary Information”). Xenia’s Proprietary Information includes non-public information regarding features, functionality, and performance of the Services and other Xenia Property, including the Aggregated Data. Customer’s Proprietary Information includes non-public information Customer provides to Xenia to enable Xenia to provide of the Services. The Receiving Party will take reasonable precautions to protect the Disclosing Party’s Proprietary Information, and will not, except to use or provide the Services as these Terms expressly permit or require, use or divulge to any Person any of the Disclosing Party’s Proprietary Information. The restrictions that this Section 6 contains will not apply, however, with respect to any information the Receiving Party can document:

1. Is or has become generally available or known to the public, other than a result of any disclosure by the Receiving Party or its representatives in violation of these Terms.
2. Is or has become available to the Receiving Party on a non-confidential basis from any source other than the Disclosing Party or any of its affiliates or representatives, other than any such source that the Receiving Party or any of its affiliates or representatives knows or should know is prohibited by a legal, contractual, or fiduciary obligation to the Disclosing Party or any of its affiliates or representatives from disclosing such information.
3. Was known to the Receiving Party as a matter of record at the time of receipt.
4. The Receiving Party independently develops as a matter of record without the use of or any reference to any Proprietary Information of the Disclosing Party.

7. Intellectual Property Ownership

7.1 Xenia Property

Customer hereby acknowledges that, as between Customer and Xenia, Xenia owns all right, title, and interest, including all intellectual property rights, in, to, and under the following (collectively, “Xenia Property”):

1. The Services.
2. The Applications.
3. The Websites.
4. The Xenia Systems.
5. All manuals, handbooks, guides, instructions, and other documents and materials that Xenia provides or makes available to Customer in any form or medium and that describe the functionality, components, features, or requirements of the Services or Xenia Property, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance of the Services, the Applications, and the Websites (collectively, the “Documentation”).
6. All other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, including intellectual property rights therein, that Xenia or any Subcontractor provides or uses in connection with the Services or that otherwise comprise or relate to the Services, the Documentation, or Xenia Systems.
7. Aggregated Data and any information, data, or other content, excluding Customer Data, that Xenia derives from monitoring Customer’s access to or use of the Services.

7.2 Third-Party Materials

Customer hereby acknowledges that, as between Customer and any third-party owner of any materials or information in any form or medium (including any open-source or other software, documents, data, content, specifications, products, equipment, or components) comprising a part of or relating to the Services, which materials or information are not proprietary to Xenia (collectively, “Third-Party Materials”), such third-party owner owns all right, title, and interest, including all intellectual property rights, in, to, and under such Third-Party Materials. Except as these Terms otherwise expressly provide, Customer will have no right, license, or authorization to access, use, or otherwise with respect to any of the Xenia Property or any Third-Party Materials.

7.3 Customer Data

Xenia hereby acknowledges that, as between Xenia and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in, to, and under all information, data, and other content, other than Aggregated Data, in any form or medium, that Customer or any Authorized User inputs, uploads, submits, posts, or otherwise transmits by or through the Services, or that incorporates or is derived from the processing of such data, information, or content by or through the Services (collectively, “Customer Data”). Customer hereby grants to Xenia, its Subcontractors, and all individuals involved in the performance of Services as employees, agents, or independent contractors of Xenia or any Subcontractor a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary, appropriate, or desirable for Xenia to provide the Services to Customer or otherwise perform its obligations under these Terms or to exercise or enforce its rights under these Terms. Customer hereby further grants to Xenia a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated in and comprising a part of the Aggregated Data.

7.4 Personal Information

“Personal Information” means any Customer Data that directly or indirectly identifies an individual (e.g., names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers), or that can be used to authenticate an individual (e.g., employee identification numbers, government-issued identification numbers (e.g., Social Security numbers, driver’s license numbers, and state-issued identification numbers), passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, genetic, health, or health insurance data, answers to security questions, and other personal identifiers). Customer’s business contact information is not by itself Personal Information.

7.5 Aggregated Data

Xenia may monitor Customer’s use of the Services and collect, compile, and use information and data related to Customer’s use of the Services in an aggregated and anonymized manner (collectively, “Aggregated Data”). Aggregated Data includes statistical and performance data, as well knowledge generally applicable to Xenia’s industry, such as industry policies, practices, and procedures. As between Xenia and Customer, Xenia owns exclusively all right, title, and interest in, to, and under the Aggregated Data, and all intellectual property rights therein. Customer hereby acknowledges that Xenia may compile Aggregated Data based on Customer Data, make Aggregated Data publicly available in compliance with applicable law, and otherwise use Aggregated Data to the extent and in the manner applicable law permits.

7.6 Feedback

If Customer or any of its representatives sends or transmits any communications or materials to Xenia by mail, email, telephone, or otherwise, suggesting or recommending changes to the Xenia Property, including new features or functionality relating thereto, or any comments, questions, suggestions, or the like (collectively, “Feedback”), Xenia is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Xenia on Customer’s behalf, and on behalf of its representatives (including all Authorized Users), all right, title, and interest in, to, and under, and Xenia is free to use, without any attribution or compensation to any Person, any ideas, know-how, concepts, techniques, or other intellectual property rights the Feedback contains, for any purpose whatsoever, although Xenia is not required to use any Feedback. All Feedback constitutes Xenia Confidential Information.

8. No Solicitation

During the Customer Relationship and the three-year period commencing immediately upon expiration or termination of the Customer Relationship, Customer will not, and will not assist any other Person to, directly or indirectly, recruit or solicit for employment or engagement as an independent contractor, or employ or engage as an independent contractor, any Person that Xenia or any Subcontractor employed or engaged as an independent contractor during the Customer Relationship, which Person was involved in any respect with the Services or the performance of these Terms. If Customer violates this Section 8, Xenia will be entitled to liquidated damages equal to the aggregate compensation (whether salary, fees, benefits, or other) Xenia or any Subcontractor paid to the applicable employee or contractor during the thirty-six-month period immediately preceding the applicable violation or, if greater, such aggregate compensation for the last full calendar month immediately preceding the applicable violation multiplied by thirty-six.

9. Privacy

Xenia’s data privacy and security policy as in effect from time to time, which is available at https://www.xenia.team/privacy-policy, is incorporated into these Terms by this reference to the same extent as if set forth in full in these Terms.

10. Security

Xenia will employ security measures in accordance with Xenia’s data privacy and security policy as in effect from time to time. Xenia maintains a data breach plan in accordance with prevailing industry standards and will implement the procedures required under such data breach plan upon the occurrence of any data breach. Customer has and will retain sole responsibility for:

1. All Customer Data, including its content and use.
2. All information, instructions, and materials Customer or any Authorized User provides or has provided on its behalf in connection with the Services.
3. All Customer’s information technology infrastructure (including computers, software, hardware, databases, electronic systems (including database management systems), and networks), whether Customer operates it directly or through use of third-party services (collectively, “Customer Systems”).
4. The security and use of Customer’s and its Authorized Users’ access credentials.
5. All access to and use of the Services and other Xenia Property directly or indirectly by or through the Customer Systems or its or its Authorized Users’ access credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

Customer will employ such physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary, appropriate, or desirable to securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services or other Xenia Property, and to control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by or through the Services.

11. Warranty Disclaimers

Xenia will provide Customer access to and use of all Services and other Xenia Property under these Terms strictly “as is”.

Xenia hereby specifically disclaims all warranties, whether express, implied, statutory, or otherwise. Xenia specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, and all warranties arising from course of dealing, usage, or trade practice. Without limiting the generality of the immediately preceding sentence, Xenia makes no warranty of any kind that the Services or other Xenia Property, or any products or results of the use thereof, will meet Customer’s or any other Person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system, or other services, or be secure, accurate, complete, free of harmful code, or error free.

Xenia will provide Customer access to and use of all Third-Party Materials under these Terms strictly “as is”. Any representation or warranty of or concerning any Third-Party Materials is strictly between Customer and the third-party owner or distributor of such Third-Party Materials.

12. Indemnification

12.1 Xenia Indemnification as Indemnitor

Xenia will indemnify, hold harmless, and defend Customer from and against all liabilities, expenses, and damages of any kind (collectively, “Losses”), Customer incurs in connection with any action, suit, or proceeding brought by any third party to the extent such Losses result from any claim that the Services infringe, misappropriate, or otherwise violate, or that Customer’s access to or use of the Services strictly in accordance with these Terms infringes, misappropriates, or otherwise violates, such third party’s United States intellectual property rights. If Customer wishes to seek indemnification or defense from Xenia under this Section 12.1, Customer will promptly notify Xenia in writing of the action, suit, or proceeding brought against Customer with respect to which Customer seeks indemnification or defense. Xenia may not enter into any settlement agreement or other contract in connection with any such action, suit, or proceeding that would in any way whatsoever affect Customer’s rights, constitute an admission of fault by Customer, or bind Customer in any manner, without Customer’s agreement. This Section 12.1 constitutes Customer’s sole remedies and Xenia’s sole liability and obligation for any actual, threatened, or alleged claims that the Services infringe, misappropriate, or otherwise violate, or that Customer’s access to or use of the Services infringes, misappropriates, or otherwise violates, any third party’s intellectual property rights. This Section 12.1 will not apply to the extent that any alleged infringement, misappropriation, or other violation is based upon, arises from, or relates to Customer Data or any claim with respect to which Customer is obligated pursuant to Section 12.2 to indemnify, hold harmless, and defend Xenia.

12.2 Customer Indemnification as Indemnitor

Customer will indemnify, hold harmless, and, at Xenia’s option, defend Xenia from and against all Losses Xenia incurs in connection with any action, suit, or proceeding brought by any third party, to the extent such Losses result from:

1. Any claim that any Customer Data, or any processing of Customer Data strictly in accordance with these Terms, infringes or misappropriates such third party’s United States intellectual property rights.
2. Customer’s or any of its representatives’ (including any Authorized User’s):

(i) Negligence or willful misconduct.

(ii) Access to or use of the Services in a manner these Terms do not authorize.

(iii) Access to or use of the Services in combination with data, software, hardware, equipment, or technology Xenia has not provided or authorized in writing.

(iv) Modifications to the Services that Xenia has not made or authorized in writing.

If Xenia wishes to seek indemnification or defense from Customer under this Section 12.2, Xenia will promptly notify Customer in writing of the action, suit, or proceeding brought against Xenia with respect to which Xenia seeks indemnification or defense. Xenia reserves the right, at its option and in its sole discretion, to assume full control of the defense of claims with legal counsel of Xenia’s choice. Customer may not enter into any settlement agreement or other contract in connection with any such action, suit, or proceeding that would in any way whatsoever affect Xenia’s rights, constitute an admission of fault by Xenia, or bind Xenia in any manner, without Xenia’s agreement. This Section 12.2 constitutes Xenia’s sole remedies and Customer’s sole liability and obligation for any actual, threatened, or alleged claims that any Customer Data, or any use of Customer Data, infringes, misappropriates, or otherwise violates, any third party’s intellectual property rights.

12.3 Mitigation

If any of the Services or Xenia Property infringe, misappropriate, or otherwise violate any third party’s intellectual property rights (or if Xenia believes in good faith that any Person is likely to so claim), or if Customer’s or any Authorized User’s use of the Services or Xenia Property is enjoined or threatened to be enjoined, Xenia may, at its option and sole cost and expense:

1. Obtain the right for Customer to continue to use the Services and Xenia Property materially as these Terms contemplate.
2. Modify or replace the Services and Xenia Property, in whole or in part, to seek to make the Services and Xenia Property (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Xenia Property, as applicable, under these Terms.
3. By notice to Customer, terminate the Customer Relationship with respect to all or part of the Services and Xenia Property, and require Customer to immediately cease any use of the Services and Xenia Property or any specified part or feature thereof.

13. Liability Limitations

In no event will Xenia or any of its licensors, service providers, or suppliers be liable under or in connection with these Terms or the Services under any legal or equitable theory, whether for breach of contract, tort (including negligence), strict liability, or otherwise, for any of the following Losses, regardless of whether Xenia or any such other Person was advised of the possibility of such Losses, or whether such Losses were otherwise foreseeable:

1. Consequential, incidental, indirect, exemplary, special, enhanced, or punitive damages.
2. Increased costs, diminution in value, or lost business, production, use, revenues, or profits.
3. Loss of goodwill or reputation.
4. Loss or damage resulting from, arising out of, or relating to:

(i) Impairment, inability to use, loss, interruption, delay of the Services.

(ii) Loss, damage, corruption, or recovery of any data.

(iii) Breach of data or system security.

5. Cost of replacement goods or services.

In no event will Xenia’s and its licensors, service providers, and suppliers collective aggregate liability arising out of or related to these Terms and the Services under any legal or equitable theory, whether for breach of contract, tort (including negligence), strict liability, or otherwise, exceed the lesser of the aggregate amount Customer has paid to Xenia under these Terms during the twelve-month period immediately preceding the occurrence of the events upon which Xenia’s liability is based and $1,000,000. The foregoing limitations will apply even if any Customer remedy fails of its essential purpose.

14. Entire Agreement

Except as these Terms otherwise expressly provide, these Terms (together with all applicable user terms and conditions) constitute the final, entire, and exclusive agreement between the Parties with respect to the subject matter of these Terms.

15. Severability

In entering into these Terms, each Party wishes to fully exercise such Party’s constitutional freedoms to contract as such Party sees fit. Accordingly, each Party hereby waives any right such Party may have to assert, allege, demand, petition, or otherwise claim in any Designated Action that any provision of these Terms is illegal, invalid, or otherwise unenforceable or enforceable only if modified, in whole or in part, by reason of any applicable law or public policy (whether now or hereafter in effect). If, however, any governmental authority of competent jurisdiction (in each case, the “Invalidating Jurisdiction”) declares any provision of these Terms illegal, invalid, or otherwise unenforceable or enforceable only if modified, in whole or in part, by reason of any applicable law or public policy (whether now or hereafter in effect), and such declaration becomes final and non-appealable (in each case, the “Invalidated Provision”), then such Invalidated Provision will remain in full force and effect in all respects as originally written in all jurisdictions other than the Invalidating Jurisdiction and will remain in full force and effect in the Invalidating Jurisdiction to the extent applicable law permits, and all other provisions these Terms contain will remain in full force and effect in their entirety and thereafter construed so as to give the greatest legally permissible effect to the original intent of the Parties with respect to the Invalidated Provision. Each Party will negotiate in good faith to replace as soon as practicable any Invalidated Provision with a provision applicable in the Invalidating Jurisdiction that is legal, valid, and enforceable in the Invalidating Jurisdiction, and that will achieve to the greatest extent possible the same business purposes, and the same allocation of economic and legal benefits and burdens, as such Invalidated Provision would have, had it been legal, valid, and enforceable in the Invalidating Jurisdiction.

16. Modifications

Xenia reserves the right to amend, restate, supplement, or otherwise modify these Terms at any time and from time to time in its sole discretion (in each case, a “Modification”). Whenever Xenia makes a Modification, Xenia will post it on this page and indicate the effective date of such Modification at the bottom of these Terms. In certain circumstances, Xenia may send Customer an email notifying Customer of a Modification or ask Customer expressly to agree to such Modification. Customer should regularly check this page for notice of any Modification. Customer’s Authorized Users’ continued access to or use of the Applications, the Websites, or the Services following any Modification constitutes Customer’s acceptance of such Modification and Customer will be legally bound by these Terms as modified by such Modification. If Customer does not accept any Modification, Customer should immediately cause its Authorized Users to stop using the Applications, the Websites, and the Services.

17. Waiver

No waiver of any term of, or breach of, or default or misrepresentation under or in connection with, these Terms will be binding upon or enforceable against any Party unless such waiver is in writing, expressly refers to these Terms and identifies in reasonable detail the subject term, breach, default, or misrepresentation, and is signed by the Party to be bound by such waiver.

18. Assignment and Delegation

No Party may or will assign or otherwise transfer its rights or delegate or otherwise transfer its obligations under or in connection with these Terms, whether voluntarily, involuntarily, by operation of law, or otherwise. Any attempted assignment, delegation, or other transfer in violation of this Section 18 will be void. No assignment, delegation, or other transfer will relieve the assigning, delegating, or transferring Party of any of its obligations under or in connection with these Terms. Notwithstanding the immediately preceding two sentences, Xenia may assign or otherwise transfer all or any portion of its rights or delegate or otherwise transfer all or any portion of its obligations under or in connection these Terms to any of its affiliates, to the acquirer of all or substantially all its assets, or to any successor in interest pursuant to any merger, consolidation, or other business combination to which Xenia is a party.

19. Successor and Assigns

These Terms will be binding upon, inure to the benefit of, and be enforceable by only the Parties and their respective successors, executors, administrators, legal representatives, heirs, legatees, distributees, beneficiaries, and permitted transferees and assigns.

20. No Third-Party Beneficiaries

Except as these Terms otherwise expressly provide, these Terms for the sole benefit of the Parties and their respective heirs, administrators, legal representatives, executors, successors, and permitted assigns, and nothing in these Terms, whether express or implied, is intended to or will confer upon any other Person, including any creditor of Xenia, any legal or equitable right, benefit, remedy, power, or privilege of any kind.

21. Governing law

The laws of the State of Florida will exclusively govern the application, construction, validity, interpretation, and enforcement of these Terms and all matters based upon, arising out of, or relating to these Terms, the transactions between or among the Parties that these Terms contemplate, or any disagreement, controversy, cause of action, claim, or other dispute between or among any of the Parties based upon, resulting from, arising out of, or relating to these Terms or the Services. The Parties intend that the rights and remedies provided to each of them under these Terms be fully enforceable for their respective benefit, whether any such right or remedy would be enforceable under the laws, or by the courts, of any other jurisdiction other than the State of Florida.

22. Submission to Jurisdiction

Each Party hereby submits for it and its property to the exclusive jurisdiction of the courts sitting in the city of Miami and county of Dade in the State of Florida (the “Designated Venue Locale”), and any appellate court therefrom (collectively, the “Designated Courts”) over all Designated Proceedings. Each Party hereby waives any right such Party may have to bring any Designated Proceeding in any jurisdiction other than the State of Florida or in any court other than a Designated Court. Each Party hereby waives any right such Party may have to plead or make any objection to any Designated Court based on improper venue or forum non conveniens. Each Party hereby waives any right such Party may have to plead or make any claim that any Designated Proceeding brought in any Designated Court has been brought in an improper or otherwise inconvenient forum. Each Party hereby waives any right it may have to plead or make any claim that any Designated Court lacks personal jurisdiction over such Party. Any final governmental order in any Designated Proceeding will be conclusive as to all Parties. Each Party may enforce any final governmental order in any Designated Proceeding in other jurisdictions by suit on the judgment or in any other manner applicable law provides. If a Party cannot under applicable law enforce a final governmental order in any Designated Proceeding in another jurisdiction by suit on the judgment, then, notwithstanding the first sentence of this section, such Party may bring such Designated Proceeding before the appropriate courts of such jurisdiction, and each Party hereby submits for it and its property to the jurisdiction of such courts for purposes of such Designated Proceeding.

23. Jury Trial Waiver

Each Party hereby acknowledges that any controversy that may arise under these Terms or relating to the Services is likely to involve complicated and difficult factual and legal issues. Accordingly, each Party hereby waives any right such Party may have to trial by jury in any Designated Proceeding.

24. Enforcement Costs

If Xenia obtains a final and binding judgment against Customer in any Designated Proceeding, Customer will, in addition to payment of any damages required by such judgment, promptly and in any event within ten business days reimburse Xenia for all reasonable out-of-pocket expenses Xenia incurred in connection with such Designated Proceeding.

25. Version and Effective Date

These Terms were adopted as Version 1.2 on, and effective as of, April 13, 2022 (“Effective Date”), and amend, restated, and replace in their entirety all previous versions of our client terms and conditions of service.