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”.
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”.
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.
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.
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.
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:
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.
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:
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.
Xenia may from time to time in its sole discretion engage unaffiliated third parties to provide any part of the Services (each, a “Subcontractor”).
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.
Customer will pay Xenia without offset or deduction the fees (collectively, “Fees”) specified for Customer’s Selected Service Plan.
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.
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.
If Customer fails to make any payment when due, without limiting in any respect Xenia’s other rights and remedies:
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.
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.
The term of the Customer Relationship and applicable automatic renewals thereof are as specified in Customer’s Selected Service Plan.
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.
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.
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:
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”):
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.
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.
“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.
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.
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.
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.
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.
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:
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.
Xenia will provide Customer access to and use of all Services and other Xenia Property under these Terms strictly “as is”.
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.
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.
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:
(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.
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:
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:
(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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
