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Terms of Service

Last Modified: October 1, 2012

PLEASE READ THE CUSTOMER TERMS OF SERVICE ("AGREEMENT") CAREFULLY BEFORE USING THE XMINDER SERVICE.

This Agreement is a legally binding contract between you ("Customer") and Xminder, Inc. Xminder provides the Service (as defined below) to you subject to and conditioned upon your acceptance of this Agreement.

BY ACCESSING AND USING THE SERVICE IN ANY WAY, YOU AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY, AND TERMINATION PROVISIONS BELOW. IF YOU DO NOT AGREE TO THE TERMS, DO NOT USE THE SERVICE.

Xminder may update and change any part or all of this Agreement. If we update or change this Agreement, we will post the updated version at http://www.xminder.com/terms-and-conditions.html. The updated Agreement will become effective on the next business day after being posted. When we change this Agreement, we will modify the "Last Modified" date above. We encourage you to review this Agreement periodically.

1. Definitions

"Agreement" means these Customer Terms of Service and all materials referred or linked to in these Terms of Service.

"Billing Period" means the period of time for which Customer has agreed to prepay fees for the Service, from time to time and will be the same as or shorter than the Contract Term. For example, if Customer subscribes to the Service for one year, with monthly credit card payments, the Billing Period will be one month.

"Communication Services" means third-party forums, online communities, blogs, personal web pages, calendars, and/or other social media communication facilities (such as Facebook, Twitter and LinkedIn) linked to or from the Service that enable Customer to communicate with the public at large or with a group.

"Contact" means the contact information, typically unique email address, of a Customer's customer, prospect, lead, or other individual (other than a User) used with the Service.

"Contact Information" means the name, company affiliation, job title, email address, online user name telephone number, and similar publicly available information voluntarily submitted by visitors to Customer's landing pages on the Service, as well as navigational data relating to each visitor's activity on Customer's webpages on the Service. Contact Information does not include Sensitive Information.

"Contract Term" means the Initial Contract Term and any Renewal Contract Term(s), as defined in Section 6, below.

"Customer Data" means all Contact Information and other permitted information submitted by Customer to, or collected by Customer via, the Service. Customer Data does not include Sensitive Information.

"Customer Materials" means all materials that Customer provides or posts, uploads, inputs or submits for public display through the Service. Suggestions, feedback and comments relating to the Service provided by Customer personnel to Xminder are not Customer Materials.

"Customer" means the person or entity using the Service and identified in the applicable billing statement or order form as the Xminder customer.

"Email Send Limit" means the number of emails that Customer may send in a calendar month, equal to ten (10) times the Maximum Contacts number.

"Xminder" means Xminder, Inc. and any entity which directly or indirectly controls, is controlled by, or is under common control with Xminder, Inc.

"Xminder Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags incorporated into the Service by Xminder.

"Maximum Contacts" means the maximum number of Contacts Customer may use with the Service as identified in Customer's order form or its subscription.

"Sensitive Information" means credit or debit card numbers, personal financial account information, Social Security numbers, passport numbers, driver's license numbers or similar identifiers, or employment, financial or health information.

"Service" means the specific edition and elements of Xminder's web-based inbound marketing applications, tools and platform selected by Customer, and developed, operated, and maintained by Xminder, accessible via http://www.Xminder.com or another designated URL, and any ancillary online or offline products and services, including website hosting, provided to Customer by Xminder, to which Customer is being granted access under this Agreement. The Service includes the Xminder Content, and does not include training services, consulting services, and Third-Party Products.

"Third-Party Products" means professional services, online web-based applications and offline software products that are provided by third parties, interoperate with or are used in connection with the Service, and are identified as being provided by third parties, including but not limited to non-Xminder apps listed on app.Xminder.com and non-Xminder services listed on services.Xminder.com.

"Third-Party Sites" means third-party websites linked to from within the Service, including without limitation Communications Services.

"User(s)" means Customer's employees, representatives, consultants, contractors or agents who are authorized by Customer to use the Service and who have been supplied user identifications and passwords by Customer (or by Xminder at Customer's request).

2. The Service

During the Contract Term and as provided in this Agreement, Xminder will provide Customer access to the Service.

The Service shall be as selected by the Customer during the subscription process. Limits may apply to the number of Contacts, users, keywords tracked, competitors tracked, emails per month, and lead nurturing campaigns, as detailed in Xminder's pricing and subscription terms, currently available at http://www.xminder.com/pricing.html. Customer's access to and use of the Service is governed by the terms of this Agreement.
Xminder modifies the Service from time to time, including by adding or deleting features and functions, in order to improve its customers' experience. Nothing in this Agreement shall prohibit Xminder from making such changes to the Service, provided that no such change to the Services shall materially reduce the functionality of the Services provided to Customer during the Contract Term. Xminder reserves the right to provide some or all elements of the Service through use of third party providers.

Customer can subscribe to additional elements of the Service from time to time, as agreed to between the parties, and such added elements of the Service shall, starting with the date on which the parties agree to their addition, be included in the Service provided and fees payable under this Agreement.

3. Customer Support

Support for Customer's use of the Service is included in Customer's subscription fee.

Phone support for the Service is available 8AM to 8PM Eastern Time (GMT-5), Monday through Friday, excluding US national holidays. Xminder accepts webform support questions 24 Hours per Day x 7 Days per Week at http://help.xminder.com/. Webform responses are provided during phone support hours only. Xminder attempts to respond to webform support questions within one business day; in practice, Xminder's responses are generally even faster. Xminder does not promise or guarantee any specific response time.

Xminder shall use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance.

4. Consulting Services

Xminder offers consulting packages to provide training and Internet marketing expertise to help Xminder's customers succeed. Fees for these services are in addition to Customer's fees for the Service and are payable at the start of the engagement. Unless otherwise agreed, all Xminder consulting is performed remotely. Hours purchased as part of a consulting package are nonrefundable and expire as set forth in the Order Form but in any case no later than 180 days from purchase.

5. Fees and Payments

The Service Fee will be as agreed to by Customer in the Order Form and will not change during a Billing Period, except as provided in this Section.

a. Price Increases. General price increases established by Xminder will not affect Customer during a Billing Period. Xminder will charge or invoice Customer under the new price structure, starting with the next Billing Period in the Contract Term.
b. Contact and Email Send Limit Tier Adjustments. If Customer exceeds its Maximum Contacts and/or Email Send Limit in a Billing Period, then Customer's Service Fee will be adjusted at the beginning of the next Billing Period up to the tier price for the maximum number of Contacts or maximum monthly email sends from any prior period, and Xminder will charge or invoice Customer for that adjusted amount. This process will continue for each Billing Period during the Contract Term.  Xminder pricing and limits will be as set forth at http://www.xminder.com/pricing.html. Xminder's determination of the number of contacts in Customer's marketing community and the number of emails Customer sends shall be conclusive. Service Fees will not decrease, even if there is a subsequent reduction in the number of contacts or emails.
c. Overage Fees for Exceeding Maximum Email Send Limits. Customer will use best efforts to accurately calculate the number of contacts in its customer data list to purchase the subscription that most accurately fits its good faith projected number of contacts in its customer data list.  Xminder and its subcontractors will have the right to monitor or audit remotely the number of contacts in Customer's marketing community and the number of emails sent by Customer on the Service. The Service Fee will not change during a Billing Period, unless Customer exceeds its Email Send Limit in a Billing Period, and continues to do so after notice from Xminder, in which case, Customer's Service Fee for the then-current Billing Period will be adjusted immediately up to the tier price for the maximum number of contacts in Customer's marketing community and Customer's maximum monthly email sends from any prior period, and Xminder will promptly charge or invoice Customer for the increased amount due. Xminder's determination of the number of contacts in Customer's marketing community and the number of emails Customer sends in a month shall be conclusive.
d. Payment by credit card. Customer will provide Xminder with valid and updated credit card information or bank account information. Customer authorizes Xminder to charge Customer's credit card or bank account for all fees payable at the beginning of the Initial Contract Term and all subsequent Billing Periods
e. Payment against invoice. Xminder will invoice Customer at the beginning of the Initial Contract Term and at the beginning of each subsequent Billing Period. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice. Payment instructions shall be as set out on Xminder's invoice. Fees paid in advance are not refundable, except as specifically provided for in this Agreement.
f. Payment Information. Customer shall ensure that all details provided regarding the Customer's contact information, billing information and credit card information, where applicable, are correct and undertakes to update such information when changes to such information occurs. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are payable in advance throughout the Contract Term.
All quoted prices and fees are exclusive of sales, value added and similar taxes, which Xminder will charge or invoice as applicable, and Customer agrees to pay any such taxes applicable to its use of the Service.

6. Contract Term and Renewal

The "Initial Contract Term" shall begin on the effective date of Customer's subscription and expire at the end of the period selected during the subscription process, unless earlier terminated in accordance with this Agreement.

Unless either party gives the other notice that it does not intend to renew this Agreement at least 45 days in advance of the end of the Contract Term, this Agreement will be automatically renewed for a "Renewal Contract Term", which shall be: (i) on the terms and conditions of this Agreement then in effect, (ii) subject to the pricing structure and applicable levels provided for renewal terms in this Agreement or, if not so specified, as then posted by Xminder at http://www.xminder.com/pricing.html, and (iii) for a term equal to the shorter of the Initial Contract Term or one year.

Each Contract Term, unless renewed, shall end on the earlier of the applicable expiration date or its earlier termination as provided in this Agreement. Except as provided herein, a Contract Term cannot be canceled before its expiration. Fees for each Contract Term are non-cancelable, and therefore no refunds of fees paid in advance will be made, except as specifically provided for in this Agreement.

7. Xminder's Proprietary Rights

This is an Agreement for access to the Service, and Customer is not granted a license to any software by this Agreement. The Service is based upon proprietary Xminder technology and includes the Xminder Content. The Service is protected by applicable intellectual property and other laws, including patent, trademark, and copyright laws. The Service, including all intellectual property rights in the Service, belongs to and is the property of Xminder or its licensors (if any). Xminder owns and retains all copyrights in the Xminder Content. The Xminder Content may not be copied, reproduced, modified, published, uploaded, posted, transmitted, performed, or distributed in any way, and Customer agrees not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, or create derivative works based on the Xminder Content or the Service, in whole or in part, by any means, except as expressly authorized in writing by Xminder. Xminder, the Sprocket Design, the Xminder logos, and other marks used by Xminder from time to time are trademarks and the property of Xminder. The appearance, layout, color scheme, and design of the Xminder.com site are protected trade dress. Customer does not receive any right or license to use the foregoing.

Xminder may use and incorporate into the Service any suggestions or other feedback relating to the Service provided by Customer personnel, without payment or condition.

8. Customer's Proprietary Rights

As between the parties, Customer shall own and retain all rights to the Customer Materials, Customer Data and any works specifically created by Xminder for Customer under separate agreement of the parties, and this Agreement does not grant Xminder any rights to such materials. Customer grants permission to Xminder and its licensors to use the Customer Materials and Customer Data only as necessary to provide the Service to Customer, and not for any other purpose.

9. Publicity

Customer grants Xminder the right to add Customer's name and company logo to its customer list and web site. Except for the foregoing, neither party may use the other party's name or logo without the other party's prior written consent.

10. Customer Data

Xminder will not use, or allow anyone else to use, Customer Data to contact any individual or company except as directed by Customer. Xminder will use Customer Data only in order to provide the Service to Customer and only as permitted by applicable law, this Agreement, and Xminder's Privacy Policy, located athttp://www.Xminder.com/privacy-policy or such other site as Xminder may select. Xminder will not use Customer Data for any other purpose.

Xminder may monitor use of the Service by all of its customers and use data related to such use in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Service. Customer agrees that Xminder may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify Customer.

Xminder will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Customer consents to the processing of Customer Data in the United States.

CUSTOMER AGREES NOT TO USE THE SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. XMINDER DISCLAIMS ANY AND ALL LIABILITY THAT MAY ARISE FROM CUSTOMER'S USE OF THE SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.

11. Use and Limitations of Use

Customer's access to the Service is conditioned upon its representations and warranties that it will not:
- Use, or allow its Users to use, the Service in violation of the terms of this Agreement;
- Use or allow its Users to use, the Service in violation of the terms of Xminder's Acceptable Use Policy at http://www.Xminder.com/acceptable-use/.
- Copy, modify, create a derivative work from, reverse engineer or reverse assemble the Service, or otherwise attempt to discover any source code, or allow any third party to do so;
- Sell, assign, sublicense, distribute, commercially exploit, grant a security interest in or otherwise transfer any right in, or make available to a third party, the Xminder Content or Service in any way;
- Use or launch any automated system, including without limitation, "robots," "spiders," or "offline readers," that accesses the Service in a manner that sends more request messages to the Xminder servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser;
- Use the Service in any manner that damages, disables, overburdens, or impairs any Xminder website or interferes with any other party's use and enjoyment of the Service;
- Attempt to gain unauthorized access to the Service;
- Access the Service by any means other than through the interface that is provided by Xminder for use in accessing the Service;
- Use the Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.

Any unauthorized use of any Xminder Content or the Service may violate patent, copyright, trademark, and other laws. Customer agrees to cooperate with Xminder to prevent any unauthorized copying of the Service or Xminder Content.

Customer shall promptly notify Xminder of any unauthorized use of its Users' identifications and passwords or its account by following the instructions at
http://success.xminder.com/log-a-support-request.

12. Acceptable Use of Communications Services

Customer agrees to use any third-party Communication Service only in compliance with any terms of use specified by the Communication Service. Xminder does not control or endorse the content, messages or information found in the Communication Services and, therefore, Xminder specifically disclaims any liability with regard to the Communication Services and any actions resulting from Customer's use of the Communication Services.

13. Third-Party Sites and Products

Third-Party Sites and Products are not under Xminder's control, and Xminder is not responsible for the contents of any Third-Party Site or Product, including without limitation any link contained in a Third-Party Site, or any changes or updates to a Third-Party Site or Product. Xminder is not responsible for any other form of transmission received from any Third-Party Site. The Third-Party Sites and Products are provided to Customer only as a convenience, and the inclusion of any Third-Party Site or Product does not imply endorsement by Xminder of the Third-Party Site or Product or any association of Xminder with it.

14. Flash Cookies

Some parts of the Service may offer, as an option, a cross-domain tracking feature that employs Adobe Local Shared Objects, also known as LSOs or Flash Cookies ("Flash Cookies"). If Customer elects to use this feature, Customer shall ensure that its practices with respect to the use of Flash Cookies are neither misleading nor deceptive in any respect. Xminder makes no representations or warranties, express or implied, with respect to the current or future permissibility of Flash Cookies under applicable laws or regulations. It shall be Customer's responsibility to ensure that use of Flash Cookies in connection with its website complies at all times with all applicable laws, regulations and privacy policies, and Customer shall immediately notify Xminder if such use shall no longer be compliant. Either party shall have the right, on written notice to the other party at any time and for any reason, to cause the implementation of Flash Cookies hereunder to be discontinued.

15. Indemnification

Customer will indemnify, defend and hold Xminder harmless, at its expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against Xminder (and its officers, directors, employees, agents, service providers, licensors, and affiliates) to the extent that such Action is based upon or arises out of (a) Customer's use of the Service; (b) Customer's noncompliance with or breach of this Agreement, (c) Customer's use of Third-Party Products, or (d) the unauthorized use of the Service by any other person using Customer's User information. Customer will indemnify Xminder for any and all costs, damages, settlements, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees and court costs) of any kind whatsoever, directly and to the extent arising out of any Action by a third party not affiliated with Xminder. Xminder shall use commercially reasonable efforts to: notify Customer in writing within thirty (30) days of Xminder's becoming aware of any such claim; give Customer sole control of the defense or settlement of such a claim (provided that Customer may not settle any such claim unless the settlement unconditionally releases Xminder of all liability); and provide Customer (at Customer's expense) with any and all information and assistance reasonably requested by Customer to handle the defense or settlement of the claim. Customer shall not accept any settlement that (i) imposes an obligation on Xminder; (ii) requires Xminder to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on Xminder without Xminder's prior written consent.

16. Disclaimers; Limitations of Liability

THE XMINDER CONTENT MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES.

XMINDER AND ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SERVICE OR THE XMINDER CONTENT FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICE AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. XMINDER AND ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE SERVICE AND THE XMINDER CONTENT, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM XMINDER IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL XMINDER AND ITS SERVICE PROVIDERS, LICENSORS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER TYPE OF DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR COVER OR LOSS OF USE, DATA, REVENUE OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SERVICE, WITH THE DELAY OR INABILITY TO USE THE SERVICE, THE PROVISION OF OR FAILURE TO PROVIDE SERVICE, OR FOR ANY XMINDER CONTENT, OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, THE FAILURE OF ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE, EVEN IF XMINDER OR ANY OF XMINDER'S SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER.

IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, XMINDER IS DETERMINED TO HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS, HARM OR DAMAGE, CUSTOMER AGREES THAT THE AGGREGATE LIABILITY OF XMINDER AND ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, SERVICE PROVIDERS, LICENSORS OR SUPPLIERS SHALL IN ALL CASES BE LIMITED TO THE LESSER OF FIVE THOUSAND DOLLARS OR THE TOTAL AMOUNTS ACTUALLY PAID BY CUSTOMER FOR THE SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

XMINDER DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS USED BY CUSTOMER. XMINDER'S LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT AND XMINDER'S LIABILITY WITH RESPECT TO ANY THIRD-PARTY PRODUCTS OR THIRD PARTY CONTENT PROVIDED WITH THE SERVICE SHALL BE SUBJECT TO THIS SECTION.

CUSTOMER UNDERSTANDS AND AGREES THAT THE FOREGOING LIMITATION OF LIABILITY IS AN AGREED ALLOCATION OF RISK AND AN ESSENTIAL PART OF THIS AGREEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT ABSENT CUSTOMER'S AGREEMENT TO THIS LIMITATION OF LIABILITY, XMINDER WOULD NOT PROVIDE THE SERVICE TO CUSTOMER.

17. Termination, Suspension and Expiration

a. Termination for Cause - Either party may terminate this Agreement for cause: (i) upon 30 days' notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

b. Suspension for Prohibited Acts - Xminder may suspend Customer's or any User's access to the Service for any of the following causes, and Xminder shall provide prompt electronic or telephonic notice of such event: (i) any use of the Service by Customer that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, (ii) Customer's use of the Xminder email send service that results in excessive bounce-backs, SPAM notices or requests for removal from a mailing list by recipients, or (iii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person.

c. Suspension for Non-Payment - Xminder may suspend Customer's access to all or any part of the Service for cause upon 10 days' notice to Customer of non-payment of any amount due hereunder if such amount remains unpaid at the expiration of such period. Xminder will not suspend the Service while Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

d. Suspension for Present Harm - If any Customer website on, or use of, the Service: (i) is being subjected to denial of service attacks or other disruptive activity, or (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Service or others, (iv) is consuming excessive bandwidth, or (v) is causing immediate, material and ongoing harm to Xminder or others, then Xminder may, with reasonably contemporaneous electronic or telephonic notice to Customer, suspend all or any access to the Service. In this extraordinary circumstance, Xminder will use commercially reasonable efforts to limit the suspension to the affected portion of the Service and promptly resolve the issues causing the suspension of the Service.

e. Effect of Termination or Expiration - Immediately upon termination or expiration of this Agreement as provided herein, Customer shall cease all use of the Service and return or destroy all Xminder Content in its possession. If Customer terminates this Agreement for cause, Xminder shall promptly refund any fees that Customer has previously paid covering use of the Service after the effective date of such termination. If Xminder terminates this Agreement for cause, Customer shall promptly pay all unpaid fees due through the end of the Contract Term. Other than as provided herein, fees are non-refundable.

f. Retrieval of Customer Data - Upon request by Customer made within 30 days after the date of termination or expiration of this Agreement, Xminder will provide Customer with temporary access to the Service to retrieve, or Xminder will provide Customer with copies of, all Customer Data then in its possession or control. After such 30-day period, Xminder shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or control.

18. General

a. Amendment; No Waiver - Xminder may update and change any part or all of this Agreement, including but not limited to the fees and charges associated with the use of the Service. If we update or change this Agreement, we will post the updated Agreement at http://www.Xminder.com/terms-of-use/. The updated Agreement will become effective and binding on the next business day after they are posted. When we change this Agreement, we will modify the "Last Modified" date above. We encourage you to review this Agreement periodically. No delay in exercising any right or remedy will operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be construed as a waiver of any right or remedy on any future occasion.

b. Applicable Law - To the maximum extent permitted by law, this Agreement shall be governed by the laws of the Commonwealth of Massachusetts, U.S.A. without reference to conflicts of law principles, and both parties hereby consent to the exclusive jurisdiction and venue of courts in Boston, Massachusetts, U.S.A. in all disputes arising out of or relating to the use of the Service. Use of the Service is unauthorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation this paragraph.

c. Force Majeure - Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.

d. Actions Permitted - Except for actions for nonpayment or breach of a party's proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than one year after the cause of action has accrued.

e. Relationship of the Parties - Xminder and Customer agree that no joint venture, partnership, employment, or agency relationship exists between Customer and Xminder as a result of this Agreement or Customer's use of the Service.

f. Compliance with Laws - Xminder will comply with all applicable U.S. state and Federal laws in its provision of the Service and its handling of Customer Data. Xminder's provision of the Service is subject to existing laws and legal process, including Xminder's rights and obligations to cooperate and comply with governmental, court and law enforcement requests or requirements relating to Customer's use of the Service or information provided to or gathered by Xminder with respect to such use. Xminder reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request.

g. Severability - If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in effect.

h. Notices - Notice shall be sent to the contact address set forth here (as such may be changed by notice given to the other party), and shall be deemed delivered as of the date of actual receipt. To Xminder: Xminder, Inc., 25 First Street, 2nd Floor, Cambridge, MA 02141, Attention: General Counsel. To Customer: Customer's address as provided in Xminder's account Information for Customer. Xminder may give electronic notices applicable to its Service customer base by means of a general notice via the Service and may give electronic notices specific to Customer by email to appropriate Customer e-mail addresses on record in Xminder's account information for Customer. Xminder may give telephonic notice to Customer by calls to appropriate numbers on record in Xminder's account information for Customer.

i. Entire Agreement - Unless otherwise expressly stated herein, this Agreement, along with any Xminder exhibit or addendum hereto, including any Order Form, constitutes the entire agreement between Customer and Xminder with respect to the Service and supersedes all prior or contemporaneous communications, proposals and agreements, whether electronic, oral or written, between Customer and Xminder with respect to the subject of this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Xminder objects to and rejects any additional or different terms proposed by Customer, including those contained in Customer's purchase order, acceptance form or website. Xminder's failure to object elsewhere to any provisions of any subsequent document, communication, or act of Customer shall not be deemed a waiver of any of the terms hereof. The party's obligations hereunder are neither contingent on the delivery of any future functionality or features of the Service nor dependent on any oral or written public comments made by Xminder regarding future functionality or features of the Service.

j. Assignment - Customer will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without Xminder's prior written consent. Xminder may assign or transfer this agreement to any successor.

k. Headings - The headings of sections included in this Agreement are inserted for convenience only and are not intended to affect the meaning or interpretation of this Agreement.

l. Language - It is the express wish of the parties that this agreement and all related documents be drawn up in English.

m. Contract for Services - The parties intend this Agreement to be a contract for the provision of services and not a contract for the sale of goods. To the fullest extent permitted by law, the provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If Customer is located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.

n. Export - Customer agrees to comply with all applicable export laws.

o. Authority - Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.

p. Survival - The following sections shall survive the expiration or termination of this Agreement: Fees and Payments, Proprietary Rights, Publicity, Indemnification, Disclaimers, Limitations of Liability, Termination, Suspension and Expiration, and General.

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