Last updated: March 08, 2017

General Terms of Service

This is a legally binding agreement even if you do not become a subscriber. By using any of our Services or Digital Properties or clicking or selecting "accept" or "agree", you agree to be bound by and become a party to these General Terms of Service.

Preliminary Matters

These General Terms of Service ("TOS") are entered into as of the Effective Date by and between Xola, Inc. ("Xola," "we", "our" or "us"), a Delaware C Corporation, and a business or individual ("Subscriber," "you" or "your"). Hereafter, Xola and Subscriber may be collectively referred to as the "Parties".

Article 14 contains a Binding Arbitration Agreement and Class Action Waiver. It affects your legal rights. Please read it. If you live outside of the United States, some or all of Article 14 may not apply to you.

BACKGROUND

  1. Terms used in these TOS beginning with initial capital letters are defined terms, which shall have the meanings ascribed to them in Article 1 below or elsewhere in these TOS. Please refer to these definitions in reviewing these TOS.
  2. These TOS, together with certain supplemental or additional documents referenced in Section 1.09 below constitute the Contract between Xola and Subscriber.
  3. Xola provides certain online software services that allow Subscribers to manage certain aspects of their business and End Users to schedule and purchase services or products from Subscribers (as defined in more detail below, the "Services").
  4. The Services are provided through websites controlled by Xola, such as https://xola.com/ (the "Website") and through the Xola mobile applications (the "Mobile Applications").
  5. The Xola Privacy Policy ("Privacy Policy") is incorporated by reference into these TOS. The Privacy Policy covers our collection, use and disclosure of information obtained through our Digital Properties (defined in Article 1 below). A copy of the Privacy Policy is located at https://xola.com/privacy-policy. In the event of a conflict between the terms of these TOS and the Privacy Policy, these TOS shall prevail.
  6. The Xola Security Policy ("Security Policy") is incorporated by reference into these TOS. The Security Policy describes the reasonable and appropriate security controls we take to protect the Services, Website, and Subscriber Data against foreseeable hazards. A copy of the Security Policy is located at https://xola.com/security-policy. In the event of a conflict between the terms of these TOS and the Security Policy, the terms of these TOS shall prevail.
  7. Use of the Website by any Person, whether a Subscriber or not, is subject to these TOS including the Privacy Policy and Security Policy. Failure to comply with the terms and conditions of these TOS may have legal consequences.
  8. By accessing, viewing or using all or any part of the Digital Properties, whether by downloading any materials, accessing some portion of the Digital Properties, using the Services or by completing any registration process, you are accepting the terms and conditions of these TOS.
  9. If you are executing these TOS on behalf of a corporation or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these TOS, in which case the terms "Subscriber," "you" or "your" shall also refer to such legal entity and its affiliates. If you do not have such authority you do not have the legal capacity or right to agree to these TOS and may not use any of our Digital Properties or content.
  10. If you do not agree to any part of this Contract, or are not authorized to enter into this Contract on behalf of the entity and its affiliates that will be using the Services or other Digital Properties, do not access or use any of the Services or other Digital Properties (and do not select "Agree" or "Accept") and you will not be able to or authorized to use our products and services.

Agreement

Having considered and agreed to the above Preliminary Matters and the terms and conditions below, the Parties hereby mutually agree to the foregoing and as follows:

1. Definitions

  1. "Addendum" or "Addenda" means any supplements or additions to these TOS entered into in writing by Xola and Subscriber from time to time, for the purpose of modifying or supplementing these TOS. Each Addendum entered into by Xola and Subscriber is hereby incorporated into the Contract by reference.
  2. "Authorized Persons" has the meaning provided in Article 6 below.
  3. "Automated Clearing House" ("ACH") means the electronic network for financial transactions in the United States, which is used to process End User payments directly from checking accounts. This is referred to outside the United States by other terms, such as "PAP" and "DDA".
  4. "Billing Period" means the period that is covered by a single Subscription Fee payment. The Billing Period shall be one (1) calendar month unless otherwise stated in the Order Acceptance or otherwise agreed to by Parties in writing.
  5. "Cardholder Data" means credit card numbers and billing addresses as entered by End Users or you. Cardholder Data is a subset of End User Data.
  6. "Compiled Data" means proprietary data about the utilization of our Digital Properties by Subscribers and End Users that is created or generated by or for Xola, which data may be used for the purposes of, among other things and by way of example, internal business purposes, improving, maintaining, administering or developing the Services, and/or producing and publishing indices, statistics, summaries, and industry reports. The Compiled Data will be presented in an anonymous, aggregate manner only and will not reveal proprietary or personally identifying information about you or your End Users.
  7. "Confidential Information" has the meaning given it in Article 7 below.
  8. "Content" means any text, graphics, images, audio, video, and information or other materials.
  9. "Contract" means these TOS (including the Privacy Policy, and the Security Policy), plus any Addenda.
  10. "Digital Properties" means the Services, the Website, the Mobile Applications, and the Xola API.
  11. "Effective Date" means the earlier of (i) the date you receive the Order Acceptance or (ii) the first date on which you use the Purchased Services, or (iii) other than for purposes of Articles 4, 9 and 12, the date on which you first use any of the other Services of the Digital Properties.
  12. "End User" means the Person scheduling or purchasing products and/or services from or with Subscriber through our Digital Properties.
  13. "End User Data" means data about an End User or the End User's activities that you or an End User furnishes to Xola through use of the Digital Properties.
  14. "Integrated Merchant Account" means an optional service that allows for processing of credit card and ACH payments. The ability to process ACH payments is optional and not required to use the Xola System. If you would like to process ACH payments through our Digital Properties, you must enter into a separate contract titled "ACH Services Agreement."
  15. "Invoice" means the invoice sent, from time to time, by Xola to you to confirm the Purchased Services provided to you and/or the amounts payable by you for the period covered by the Invoice.
  16. "Onsite Implementation Services" means training, onboarding and/or implementation provided by Xola to you at your facilities for an additional fee. Onsite Training is only available in certain geographical areas and subject to availability, as determined by Xola in its sole discretion.
  17. "Order Acceptance" means the communication that Xola sends to you responding to a Subscriber Order. The Order Acceptance shall confirm our acceptance of the Subscriber Order, list the Purchased Services to which you have subscribed, and state the amount of the Subscription Fee payable by you to Xola at the beginning of each Billing Period (and may also include links to all applicable agreements).
  18. "PCI DSS" means the requirements of the Payment Card Industry Data Security Standard, as detailed on https://www.pcisecuritystandards.org/, and as may be updated from time to time, at any time.
  19. "Person" means a natural person, corporation, partnership, limited liability company, or any other legal entity capable of having legal rights and duties.
  20. "Public Services" means our Services that End Users may utilize or purchase. The Public Services are publicly accessible through a generally available web browser, mobile device or Xola authorized application. You agree that Subscriber Public Data shall be publicly accessible through the Public Services.
  21. "Purchased Services" means all the Services identified in the Order Acceptance as the services to be provided to you by Xola (together with any applicable implementation services in accordance with Section 3 below) in exchange for the Subscription Fee and/or any additional fees identified in the Order Acceptance. The Purchase Services shall exclude features, capacity (e.g., number of bookings) and functionality that are not included within the subscription level or Services ordered under the Order Acceptance (except if, when and to the extent Subscriber upgrades its applicable subscription level and corresponding fees paid to Xola in accordance with a subsequent upgrade Order Acceptance or other upgrade mechanism in accordance with Xola's policies and procedures).
  22. "Representatives" means directors, officers, employees, agents and financial, legal, other advisors and affiliates of the Subscriber and/or Xola, as applicable.
  23. "Services" means Xola's online software-as-a-service booking and marketing system for tour guides, activity providers and similar businesses that, among other things and without limitation, allows End Users to schedule and purchase services or products from Subscribers and allows Subscribers to manage and administer such scheduling and purchasing, together with the associated implementation and other services described in Section 3 below.
  24. "Services License" means the license granted in Section 6.2 below.
  25. "Startup Training" means training provided by a Xola professional to you while you are in the process of implementing the Purchased Services in accordance with its standard policies and procedures. Such training is described in more detail in Section 3.2b below. Startup Training is delivered via telephone and optional Internet link and excludes any onsite services.
  26. "Scheduled Maintenance" means periodic planned servicing to our Digital Properties as may be necessary from time to time to maintain optimum system performance, and which are announced in advance by Xola.
  27. "Subscribers" or "Xola Subscribers" mean the Persons who register or otherwise sign up with Xola to use any of the Services.
  28. "Subscriber Data" means all data entered or otherwise furnished by you on or to Xola's host computer system using the Purchased Services. Subscriber Data includes End User Data, Subscriber Public Data, and Subscriber Private Data.  Xola does not store Cardholder Data on Xola's host computer system. Subscriber Data is the property of Subscriber as stated in Section 2.2 below.
  29. "Subscriber Private Data" means that portion of Subscriber Data that will not be displayed or made available to the public through the Public Services or other publicly accessible portions of the Digital Properties. Subscriber Data that you do not designate as Subscriber Public Data and do not provide to or for display on the Public Services or other publicly accessible portions of the Digital Properties will be private and confidential in accordance with the terms and conditions of Article 7 below.
  30. "Subscriber Public Data" means that portion of Subscriber Data that you designate as public or provide to or for display on the Public Services or other publicly accessible portions of the Digital Properties. Examples of Subscriber Public Data include, without limitation, any information pertaining to the products and services you offer and information provided for the purpose of marketing, promoting, and facilitating the sale or use of your products and services.
  31. "Subscriber Order" means the initial communication submitted by you to us, describing the Services you want to purchase.
  32. "Subscription Fee" means the fees to be paid by the Subscriber to Xola for the Purchased Services, as set forth in the Order Acceptance.
  33. "Termination Date" has the meaning provided in Section 13.2 below.
  34. "Xola Content" means all Content that Xola makes available through the Digital Properties, including any Content licensed from a third party, but excluding Content provided by you or End Users.

2. Data Ownership

  1. Cardholder Data

    All right, title, and interest in each item of Cardholder Data shall be solely and exclusively owned by the End User who is personally identifiable from such item of Cardholder Data
  2. Ownership, Maintenance and Use of Subscriber Data

    1. Subject to the provisions of this Article 2 and Article 6 below, as between Xola and Subscriber, Subscriber shall have sole ownership of all right, title, and interest in Subscriber Data, excluding Cardholder Data.
    2. The Person who provides payment for the Purchased Services may or may not be the owner of Subscriber Data.
    3. You shall be solely responsible for resolving any dispute over ownership of Subscriber Data between you and a third party. You agree that Xola shall have no obligation to be involved in any such dispute. You further agree that we have no responsibility to determine proper ownership of Subscriber Data. We reserve the right to, at our sole discretion, restrict access to the Purchased Services until such ownership dispute is resolved.
    4. You agree that it is your sole responsibility to provide proper documentation to Xola in order to resolve any dispute over ownership of Subscriber Data. If the documentation you provide is not satisfactory, under Xola's sole judgment, we may request further documentation.
    5. You are solely responsible for your operation of Purchased Services and maintenance of all information used in connection with the Services, including, but not limited to your intellectual property and Subscriber Data. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of Subscriber Data. You warrant to Xola that your Subscriber Data does not violate applicable law or the rights of any third party and that Xola has the right to receive and use the Subscriber Data for purposes of this Contract.
  3. Access to Subscriber Data

    1. You may download reports containing commonly requested portions of the Subscriber Data from the Digital Properties in .CSV (Comma Separated Values) format by using the reporting and exporting tools provided as part of the Purchased Services. You are responsible for maintaining the security of any Subscriber Data in your possession, including any copy of all Subscriber Data received pursuant to this Article 2.
    2. You may contact our Customer Support to request customized Subscriber Data reports. So long as you agree to pay all fees and expenses associated with generating such reports and it is commercially reasonable to generate such reports, Xola will provide you such reports within a reasonable time period. Customized reports will not contain Cardholder Data.
    3. You agree that Xola may use your Subscriber Data to provide, maintain, operate, develop and improve the Services, including without limitation to provide your customers with information they request through the Services, such as information pertaining to your products and services.
    4. You hereby agree that we may use any portion of the End User Data associated with an End User for the purposes of providing, maintaining, operating, developing and improving the Services, including without limitation for displaying, to such End User, his or her purchase history.
    5. You may grant Subscriber's Agent(s) access to the Subscriber Data through the Services by obtaining authorized information release consent from Subscriber and submitting a request to Customer Support.
    6. Any Subscriber Public Data shall be publicly accessible through the Public Services.
  4. Ownership and Access to Compiled Data
    1. Xola will comply with its Privacy Policy.
    2. Subscriber acknowledges and agrees that title, ownership, intellectual property rights, and all other rights and interests in Compiled Data are owned solely by Xola and may be used by Xola for its own purposes.
    3. Xola agrees that when Compiled Data is publicly disclosed, it will be presented in an aggregate manner only, and will not reveal proprietary or personally identifying information about you or your End Users.
  5. Disclosure of Security Breach
    1. Following our discovery or notification of any breach of the security of the Xola systems, to the extent consistent with applicable law, we shall disclose such breach to
      1. you if we reasonably believe your unencrypted Subscriber Data has been acquired by an unauthorized person, and
      2. any End User whose End User Data we reasonably believe has been acquired by an unauthorized person.
      Such disclosure shall be made expediently and without unreasonable delay, consistent with the legitimate needs of law enforcement or any measures reasonably necessary to determine the scope of the breach and restore the reasonable integrity of Xola's systems.
    2. All disclosures of security breaches shall be written in plain English and shall identify the types of unencrypted information that we reasonably believe may have been acquired by an unauthorized person as a result of such breach. A breach disclosure shall include the estimated date of the breach, if it is possible to determine such information at the time the breach disclosure is issued. Xola may communicate any breach disclosure electronically, subject to the terms and conditions of the Contract.

3. Services

  1. Operation, Maintenance, and Security of Purchased Services

    1. Subject to your compliance with the terms and conditions of this Agreement, we will operate and maintain the Purchased Services. We reserve the right to replace, modify, and/or upgrade any of the Purchased Services from time to time and at any time in our sole discretion. Xola may periodically improve the Purchased Services by regularly releasing updates, which modify, improve and/or update the Purchased Services. Any replacement, modification, or upgrade to the Purchased Services shall be treated as part of the Purchased Services for the purpose of the Contract.
    2. We will provide (or have provided) all equipment, software, and security services necessary for the operation and maintenance of our host computer system, set forth in further detail in Xola's Security Policy. We reserve the right to change the configuration of our host computer system and change or delete equipment or software from time to time and at any time.
  2. Standard Implementation Services

    The following implementation services are included as part of the Purchased Services covered by the Subscription Fees set forth in the Contract:

    1. Data Importation of Customer Contacts You may elect to have Xola import End Users' names and contact information upon startup of the Purchased Service. If you make this election, then Xola shall import, on a one-time basis, your End Users' names, notes, and contact information from any standard open database format, including, but not limited to .txt, .xls, and .csv.
    2. Startup Training To help you get started, Xola gives you up to 80 minutes of training over the phone (or such other amount of time, if any, specified on the Website for such phone training) and access to online webinar training. Xola will provide Startup Training sessions not to exceed the following durations per business location identified in the Order Acceptance (unless otherwise specified on such Order Acceptance or on the Website):
      1. One (1) Thirty (30) minute discovery call;
      2. One (1) Fifty (50) minute software setup training; and
      3. Access to online webinar training sessions.
    3. Data Storage Xola stores Subscriber Data and End User Data during the term of the Purchased Services in accordance with these TOS, the Privacy Policy, and the Security Policy. Subscriber shall have the right to access Subscriber Data as provided in Section 2.3 and elsewhere in these TOS. Upon termination of the Contract (or termination of the Purchased Services), Subscriber shall have the right to recover all Subscriber Data as provided in Section 13.4 and elsewhere in these TOS.

    The foregoing implementation services are subject to Your reasonable cooperation and assistance.

  3. Supplementary Implementation Services

    Subject to availability and other applicable restrictions, Xola may provide supplementary implementation services to Subscriber which may include, but are not limited to, the following services. Supplementary implementation services may require the payment of additional fees. You may contact Xola for further information about such supplementary implementation services.

    1. Transactional Histories Subscriber may be eligible for importation of its transactional histories for an additional fee, as determined by Xola in its sole discretion.
    2. Supplemental Training

      1. In the event that you wish to receive supplemental training via telephone and an optional Internet link in addition to the Startup Training provided as a standard implementation services, Xola may provide such supplemental training to you (subject to availability) at an additional charge based on Xola's hourly rates in effect at the time such supplemental training is requested.
      2. In the event that you wish to have Onsite Implementation Services, such training may be provided, at Xola's discretion, at a fee to be agreed upon at the time of purchase of such training. Subscriber shall provide Xola personnel with reasonable access, cooperation and assistance in connection with any Onsite Implementation Services and a safe and secure environment in which to perform such services.
  4. Subscriber Account.

    To access and use the Purchased Services, Subscriber may be required to create, or be provided with, an account with Xola associated and/or an electronic key or password. Subscriber shall be responsible for all activities that occur under Subscriber's account, key or password, regardless of whether the activities are undertaken by Subscriber or its Representatives. Xola and its affiliates are not responsible for any unauthorized access to Subscriber's account, passwords or keys. Subscriber will contact Xola immediately if Subscriber believes an unauthorized person may be using Subscriber's account, passwords or keys or if Subscriber's account information is lost or stolen.

  5. Suspension of Services.

    Xola may suspend Subscriber's right to access or use any portion or all of the Services immediately upon notice to Subscriber should any of the following occur, or should Xola in its discretion believe any of the following are likely to occur:

    1. Subscriber's use of or registration for the Services (i) poses a security risk to the Services or any third party, (ii) may adversely impact the Services or the Digital Properties, (iii) may subject Xola or any third party to liability or governmental action, or (iv) may be fraudulent;
    2. Subscriber's use of the Services is in violation of any applicable laws, rules or regulations;
    3. Subscriber is in material breach of the Contract; or
    4. Subscriber has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Subscriber's assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.

4. Payment Terms

  1. Payment Terms

    Xola calculates and bills its charges and fees on a monthly basis, unless otherwise specified in the Order Acceptance. Commencing on the Effective Date and continuing on the same calendar day of the month as the Effective Date for each calendar month thereafter until the Termination Date, Subscriber shall pay Xola, in advance, the Subscription Fees, plus any other amount(s) payable by Subscriber under the Contract for the upcoming Billing Period The Subscription Fees shall be prorated for any partial monthly period that occurs during the term of this Contract.

  2. Late Payment

    1. We may charge you interest on all late payments at the rate of (i) the prime rate plus two percent (2%) per annum or (ii) such maximum interest rate as may be imposed by applicable law in the jurisdiction in which you are located. Any payment not received within thirty (30) days after the applicable due date shall be considered a default under the Contract. Thereupon, Xola shall be entitled to suspend or deactivate your account and use of the Digital Properties. We may not provide advanced notice of suspension or deactivation of your account for late payment.
    2. In the event that we suspend or deactivate your account for late payment of Subscription Fees and we later decide to reactivate such account at your request, you shall pay Xola a one hundred and fifty dollar ($150) re-activation fee per Xola Account. This reactivation fee is not intended to be a penalty but an estimate of actual costs to be incurred by Xola in reactivating suspended accounts. Xola reserves the right to change the amount of the reactivation fee, from time to time, at any time. Xola will notify you at least thirty (30) days before any such change takes effect.
    3. If we have not received payment after 60 days, we may terminate your Contract with us.
    4. If you are not up to date on all payments of Subscription Fees then due within sixty (60) days after the applicable due date, Xola shall be entitled to terminate the Contract for cause pursuant to Article 13 below. If any amount payable by you is not received within thirty (30) of the applicable due date on three (3) separate occasions during a running twelve (12) month period, Xola shall be entitled to terminate the Contract for cause pursuant to Article 13 below.
  3. Fees and Payment Options

    You shall provide to us by the Effective Date, valid, up-to-date and complete payment information which shall be provided in at least one (1) of the following forms: credit card or approved purchase order, all of which must be in a format that is acceptable to us and include any other relevant, valid, up-to-date and complete contact and billing details. The following conditions shall apply to each payment option:

    1. Credit Card The Subscriber hereby authorizes Xola to bill Subscriber's credit card on file with Xola:
      1. On the Effective Date for the Subscription Fees payable for the initial Billing Period; the first month of Subscription Fees is assessed on a pro rata basis.
      2. Subject to Article 13, on the first date of each subsequent month the full month of Subscription Fees;
      3. On the applicable due date with respect to any other fees or amounts payable hereunder in accordance with the applicable Order Acceptance of the terms of this Contract.
    2. Purchase Order. If you elect to pay by purchase order, Xola shall invoice the Subscriber:
      1. On the Effective Date for the Subscription Fees payable for the initial Billing Period; and
      2. Subject to Article 13, at least 30 days prior to each monthly anniversary of the Effective Date for the Subscription Fees payable upon such date.
      3. On the applicable due date with respect to any other fees or amounts payable hereunder in accordance with the applicable Order Acceptance of the terms of this Contract.
  4. Changes in Fees

    We reserve the right to change the amount of the Subscription Fees (and any other applicable fees hereunder) if you wish to acquire and/or operate additional business units and/or locations in excess of those specified on the Order Acceptance. In addition, if the number of transactions (e.g., bookings) for your Xola Account exceeds the quantity permitted in your subscription package or Order Acceptance, the Subscription Fees shall be subject to increase according to the pricing structure in effect at that time. Xola shall give you at least thirty (30) days advance written notice of any change in such fees.

  5. Taxes

    Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). You are responsible for paying all Taxes associated with your purchases under the Contract, your use of any Digital Properties, or your payments hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible under this Section 4.5, we will invoice you for payment unless you provide a valid tax exemption certificate issued by the appropriate taxing authority. Xola is solely responsible for all taxes assessable against Xola based on its net income, property and employees.

5. Intellectual Property

  1. Xola Intellectual Property

    1. The Contract does not provide you with title or ownership of any of the Digital Properties, the Compiled Data, or any components thereof, but only a right of limited use, as specifically provided in Article 6 and applicable Addenda to these TOS. Xola shall have sole and exclusive ownership of all right, title, interest, copyright, and other intellectual property rights in and to:

      1. The Compiled Data and any portion thereof;
      2. The Services (including but not limited to any code, images, photographs, animations, video, audio, music, text, and applets that we provide);
      3. The Website (including but not limited to any code, images, photographs, animations, video, audio, music, text, and applets that we provide);
      4. The Mobile Applications (including but not limited to any code, images, photographs, animations, video, audio, music, text, and applets that we provide);
      5. All derivatives, modifications, and enhancements of such intellectual property (including ownership of all patents, trade secrets, trademarks and copyrights pertaining thereto), subject only to the rights and privileges expressly granted to Subscriber in Article 6 below and applicable Addenda to these TOS.
    2. Xola, the Xola mark, the Xola logo, the Xola url, and the names, logos and icons of all of our Digital Properties are trademarks or registered trademarks of Xola in the U.S. and/or other countries. Except for the limited licenses granted to you in Article 6 and applicable Addenda to these TOS, Xola reserves all of our intellectual property rights in the Digital Properties. No part of the Digital Properties, or any content on the Digital Properties, may be copied for any purpose without the express written permission of Xola.
  2. Subscriber's Intellectual Property

    You assume sole responsibility for the protection of any patents, copyrights, trade secrets, trademarks, service marks, trade names and other intellectual property wholly or partially owned by you.

  3. Use of Subscriber's Trademarks

    You hereby grant us authorization to list you as a Xola Subscriber, and include your name and trademarks in the Public Services, our public directories, the Websites, and the Mobile Applications. We will, however, provide you with the ability to remove your name, information, and trademark from public display at any time. If we receive notice or documentation demonstrating that another person or entity contests your right to use or display a name, trademark, service mark, or other content, we may, at our sole discretion, discontinue listing you in our public directories and our Digital Properties without liability to you until such time as you have resolved any such dispute to our satisfaction.

  4. Third Party Intellectual Property

    Other trademarks and logos used in connection with the Digital Properties may be the trademarks or registered trademarks of their respective owners. These TOS and applicable Addenda do not grant you any right or license with respect to any such trademarks or logos. All trademarks used within the Digital Properties are property of their respective owners in the U.S. and other countries.

  5. DMCA Notice Procedures

    We respect the intellectual property of others. However, we shall have no obligation to monitor the use of trademarks, copyrights, or other rights of Subscriber or third parties. If you are the owner of the exclusive rights in any intellectual property, or are authorized to act on behalf of an owner of any such exclusive rights and you want to send us a notification of claimed infringement, you must submit a notification containing the following information (as required under the Digital Millennium Copyright Act (17 U.S.C. § 512)):

    1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that has allegedly been infringed;
    2. Identification of the copyrighted work or trademark claimed to have been infringed;
    3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Xola to locate such material;
    4. Information reasonably sufficient to permit Xola to contact you, such as an address, telephone number, and email address;
    5. A statement that Subscriber has a good faith belief that the use of the subject material in the manner complained of is not authorized by the owner, its agent, or the law; and
    6. A statement, under penalty of perjury, that (i) the information in the notice is accurate and (ii) that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
    7. Please e-mail the foregoing information to privacy@xola.com
  6. Repeat Infringer Policy

    Your provision or use of infringing Content in connection with our Digital Properties shall constitute a breach of the Contract. We may, in appropriate circumstances and in our sole discretion, remove, suspend, terminate access or take other appropriate action against Xola Subscribers who infringe the intellectual property or other rights of others on a single occasion. We have a policy which, in appropriate circumstances and in our sole discretion, provides for the termination of Xola Subscribers who repeatedly infringe upon the intellectual property or other rights of others. Xola Subscribers who repeatedly infringe include without limitation those for whom we have received more than two valid notices of infringement, absent exceptional circumstances.

6. Licensing Matters

  1. WARNING: NO TRESPASSING

    Our Digital Properties are maintained by us and are intended for the exclusive use and benefit of Xola, its customers , prospective customers, authorized partners, vendors, prospective vendors, employees and prospective employees (collectively, the "Authorized Persons"). No other persons are authorized to visit or enter of Our Digital Properties for any purpose. All information contained in the Digital Properties (other than Subscriber Data) is Our proprietary information and usage thereof shall be subject to the Services License granted by Xola in Section 6.2 below. Persons entering the Website or other Digital Properties, whether authorized or not, shall be deemed to have automatically accepted the terms and conditions of the Services License (and other applicable portions of this TOS) at the time of initial entry. If any unauthorized person attempts to visit or enter the Digital Properties, they shall be deemed to be accessing a computer without authorization and trespassing on the Digital Properties and they shall be liable for damages, etc. resulting therefrom. No Person, authorized or not, shall be entitled to copy, extract, decompile, or otherwise use Our proprietary information, through scraping, spidering, crawling or any other technology or software used to access data located on or contained in the Digital Properties without the express written consent of Xola. Your violation of the provisions of any license granted by Xola under these TOS or other applicable portion of the Contract shall constitute, among other offenses, trespass, breach of contract, and access of a computer without authorization with the intent to cause

  2. Services License

    1. On the condition that you comply with all of your obligations under the Contract and subject to all the terms and conditions of Contract, we grant you a limited, revocable, nonexclusive, non-assignable, non-transferable, nonsublicenseable license to access, use, display, and run the Website, and Mobile Application, and Purchased Services through a generally available web browser, mobile device or Xola authorized application (but not through scraping, spidering, crawling or any other technology or software used to access data without the express written consent of Xola) for use in connection with your business in accordance with the terms and conditions found in the Contract.
    2. This Services License is in addition to other licenses we may expressly grant in these TOS and Addenda hereto.
    3. You agree that Our Services are licensed on a per Subscriber basis. Your rights to access and/or utilize Our Digital Properties may not be shared between you and any third party or used by any third party, except as expressly permitted by these TOS and/or any Addenda and authorized by you in writing in accordance with the terms and conditions contained in these TOS and/or the Addenda.
    4. This Services License is subject to any limitations, restrictions or parameters specified on the Website for the subscription package you ordered or specified on the Order Acceptance.
  3. End Users' License

    On the condition that an End User complies with all of the terms and conditions of the Contract and subject to all the terms and conditions of the Contract, we grant such End User a limited, revocable, nonexclusive, non-assignable, non-transferable, nonsublicenseable license and right to access, use, display, and run the Public Services through a generally available web browser, mobile device, or Xola authorized application (but not through scraping, spidering, crawling or any other technology or software used to access data without the express written consent of Xola) to schedule Subscriber services, make purchases, and for any other use that Xola currently makes available or may make available in the future through the Public Services.

  4. Limitation on Rights Granted

    Xola reserves all rights not expressly granted in these TOS, including, without limitation, all title, ownership, intellectual property rights, and all other rights and interest in Our Digital Properties and all related items, including any and all copies made of the Digital Properties. Except as expressly stated in these TOS or in any Addenda, no rights or licenses are granted by Xola hereunder or in or to any Digital Properties or Compiled Data or other intellectual property of Xola hereunder, by implication, estoppel or otherwise.

  5. Grant of License to Subscriber Data

    You hereby grant Xola a nonexclusive, irrevocable, worldwide, perpetual, assignable, sublicenseable, fully paid-up and royalty-free license and right to use, copy, distribute, modify, prepare derivative works of, process and analyze Subscriber Data without any further consent, notice and/or compensation to you or to any third party solely for the purposes of providing, maintaining, operating, developing and improving the Services. By submitting End User Data you represent and warrant that you are entitled to use the End User Data and provide such End User Data to Xola for use in accordance with this Contract and that your submission of End User Data is not in violation of any contractual restrictions or third party intellectual property rights.

  6. Restrictions

    Subscriber shall not (and shall have no right to), in whole or in part, directly or indirectly:

    1. Reverse engineer, disassemble, decompile, translate, reproduce, modify, alter, tamper with, or otherwise attempt to access or derive the source code or the underlying ideas, algorithms, structure, or organization of the Digital Properties or reduce the Digital Properties to a human-perceivable format;
    2. Remove any copyright notices, logos, identification, or any other proprietary notices from the Digital Properties;
    3. Access or use the Services in a way intended to avoid incurring fees or charges or exceeding or violating usage, storage, capacity or other limits, quotas or restrictions;
    4. Make any change to the Digital Properties or create any derivative works thereof; or
    5. Publish, sell, rent, lease, sublicense, transfer, transmit, resell, or distribute the Digital Properties or any part thereof or provide third parties with access to the Digital Properties (through time sharing, service bureau or otherwise).

    Subscriber shall not (and shall ensure that its Representatives and End Users do not): (i) enter, store or transmit viruses, worms or other malicious code within, through, to or using the Services or other Digital Properties, (ii) remove, alter or conceal any copyright or trademark or other proprietary rights notices incorporated in or accompanying the Services or other Digital Properties, (iii) interfere with or disrupt the integrity or performance of the Services or other Digital Properties, (iv) use the Services to send or distribute spam or abusive or excessive emails, messages or other communications, or (v) use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Services or Digital Properties or collect information for any unauthorized purpose.

7. Confidentiality

  1. Confidential Information

    For the purposes of the Contract, "Confidential Information" shall include the Services, non-public portions or aspects of the Digital Properties, the Subscriber Private Data, and any accompanying or related documentation. Confidential Information does not include information which is:

    1. Independently developed by the receiving party without the use of or reference Confidential Information of the disclosing party;
    2. Rightfully obtained by the receiving party from a third party without restriction;
    3. Publicly known at the time of disclosure or which becomes publicly known thereafter by any means other than through the fault or negligence of the receiving party;
    4. Disclosed without restriction and not under other conditions of confidentiality by the disclosing party to anyone, including the U.S. Government as supported by written records;
    5. Known to the receiving party at the time of disclosure, as supported by competent proof;
  2. Protection of Confidential Information

    1. During the term of the Contract and for a period of seven (7) years after its termination or expiration, the Parties agree they shall not disclose any of the Confidential Information of the other Party in any manner whatsoever, except as provided in Sections 7.2.c. and 7.2.d. below, and shall hold and maintain the Confidential Information in strictest confidence.
    2. A party may disclose Confidential Information to such party's directors, officers, employees, agents and financial, legal, other advisors and affiliates (collectively, "Representatives") with a bona fide need to know such Confidential Information, but only to the extent necessary to evaluate or carry out the terms of the Contract and only if such Representatives are advised of the confidential nature of such Confidential Information and the terms of the Contract and are bound by a written agreement or by a legally enforceable code of professional responsibility to protect the confidentiality of such Confidential Information.
    3. The Parties acknowledge and agree that nothing in this Article 7 shall prohibit the collection, compilation, and distribution of any Compiled Data by Xola above, or of any End User Data that is requested by an End User or Employer, as described in Sections 2.3.c. and 2.3.d. above.
    4. A party may disclose Confidential Information to the extent that such disclosure is required by applicable law or court order, provided that, to the extent practicable, such party provides the other party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure.
    5. The Confidential Information is being disclosed by the Parties solely for the purpose stated herein (including without limitation to perform obligations and exercise rights expressly provided for in the Contract). The Parties specifically agree not to use the Confidential Information of the other Party for any other purpose.

8. Interoperability Requirements

  1. Your Responsibilities

    1. You shall maintain the functional operation of all of your mobile devices, workstations, networks, hardware, software, devices and Internet connections necessary to ensure proper operation of the Purchased Services, including installation and operation of any associated operating system and web browser according to applicable manufacturer specifications and recommendations.
    2. Prior to contacting Xola concerning connectivity problems, you shall verify that you are able to properly connect to the Internet by verifying navigation through common websites such as www.google.com, and you shall verify that you are running an up-to-date version of Chrome, Internet Explorer, Mozilla Firefox or Safari.
  2. Technical Requirements

    The communications and network interoperability for the Purchased Services require a high-speed Internet connection, modern web browser, modern smartphone and modern computer.

9. Limited Warranty

  1. Purchased Services Warranty

    1. To qualify for the Purchased Services warranty, you must maintain a subscription for a minimum of twelve (12) consecutive months, as measured in accordance with Section 9.1.d. below.
    2. Subject to Section 9.1(g), Xola warrants that the Purchased Services shall be 99.9% available twenty-four (24) hours per day, seven (7) days per week, three hundred and sixty-five (365) days a year. This translates to eight (8) hours and forty-five (45) minutes of unplanned outage time as measured over twelve (12) months, subject to all the provisions of this Article 9.
    3. The following shall be your sole and exclusive remedy, and Our sole and exclusive liability, for any breach of the foregoing warranty.
    4. If the cumulative service level for the Purchased Services drops below 99.8% for a twelve (12) month period, as measured from the Effective Date and revisited on each twelve (12) month anniversary of the Effective Date, we will credit you with complimentary service to be used in the following twelve (12) months, according to the following schedule:

      1. 98% - 99.8% availability of the Purchased Services: one (1) free month of service;
      2. 95% - 97.9% availability of the Purchased Services: two (2) free months of service;
      3. 90% - 94.9% availability of the Purchased Services: six (6) free months of service; and
      4. Less than 90% availability of the Purchased Services: twelve (12) free months of service.
    5. To receive any credit of complimentary service pursuant to this Article 9, you shall notify us in writing of your intent to collect the complimentary service in a timely manner. Any such written notice shall be delivered to us no later thirty (30) days after the twelve (12) month anniversary of the Effective Date which concludes the twelve (12) months in which the availability of the Purchased Services fell below the warranted level.
    6. To the extent that we do not receive timely notice from you as provided in Section 9.1.e. above,

      1. We shall have no further obligation to provide you with any free service; and
      2. You shall be deemed to have waived and released us from any and all claims related to your use or non-use of the Purchased Services during the applicable 12-month period.
    7. Xola shall not be in breach or violation of any warranty under this Contract, and You shall not receive any credit or refund under this Article 9, in connection with any failure or deficiency caused by or associated with any of the following:

      1. Circumstances beyond Our reasonable control, including, but not limited to, war, sabotage, terrorism, armed conflict, embargo, fire, flood, earthquake, labor disputes or strikes, power outage, Internet virus, or denial of service attacks;
      2. Telecommunications or Internet failures outside of Our control;
      3. Third party service or technology providers, including without limitation any third party hosting service, or any information technology infrastructure, computers, hardware, networks, Subscriber Data or software provided or used by Subscriber;
      4. Your acts or omissions, those of your employees, or those of your Representatives, including but without limitation to, custom scripting or coding, any negligence, willful misconduct, use of the Purchased Services outside the scope of the Contract or your breach of the Contract; and
      5. Scheduled Maintenance conducted between the hours of 9:00 PM and 9:00 AM in the Pacific Time Zone for which Subscriber receives at least forty-eight (48) hours prior notice.
  2. DISCLAIMER OF FURTHER WARRANTIES

    1. EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE 9, THE SERVICES AND ANY APPLICATIONS, OR THIRD-PARTY CONTENT MADE AVAILABLE ON OR THROUGH THE DIGITAL PROPERTIES, AND THE DIGITAL PROPERTIES THEMSELVES, ARE PROVIDED ON AN AS IS BASIS, WITH ALL FAULTS. XOLA MAKES NO REPRESENTATIONS, WARRANTIES, OR ASSURANCES, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES, THE DIGITAL PROPERTIES OR ANY OTHER MATTERS, EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE 9.
    2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, XOLA HEREBY EXPRESSLY DISCLAIMS ALL EXPRESS (EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE 9), IMPLIED AND STATUTORY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ABSENCE OF VIRUS OR OTHER HARMFUL COMPONENTS, NEGLIGENCE, OR LACK OF WORKMANLIKE EFFORT ON THE PART OF XOLA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM XOLA, REPRESENTATIVES OF XOLA, OR THROUGH OUR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS ARTICLE 9.
    3. YOU UNDERSTAND AND AGREE THAT YOU WILL USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE SERVICES OR ANY WEBSITE OR APPLICATIONS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICES) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH INFORMATION, MATERIAL, OR DATA.

10. Limitation of Liability

  1. LIMITED LIABILITY FOR CARDHOLDER DATA

    1. XOLA EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA. THE EXCLUDED DAMAGES SHALL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY. THIS SECTION 10.1 SHALL BE INTERPRETED AND APPLIED SUBJECT TO THE LIMITATION OF XOLA'S LIABILITY SET FORTH IN SECTION 10.2 BELOW.
    2. Xola expressly disclaims any and all liability resulting directly or indirectly from your or End Users' handling of Cardholder Data. We strongly recommend that you follow the requirements of the PCI DSS when handling Cardholder Data.
    3. You and End Users understand and agree that:
      1. Xola does not store Cardholder Data on our server(s);
      2. Xola is integrated with third party payment processing services that store Cardholder Data in compliance with PCI DSS tier 1 standards.
      3. Xola transfers Cardholder Data over a 2048 bit Secure Sockets Layer (SSL) data encrypted connection;
      4. Transmitting Cardholder Data on the Internet may involve certain security risks;
      5. Xola shall not be responsible for the security of Cardholder Data stored on third party services;
  2. LIMITATION OF XOLA'S LIABILITY

    THIS SECTION 10.2 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SOME OR ALL OF THE LIMITATIONS OR EXCLUSIONS CONTAINED IN THIS SECTION 10.2 MAY NOT APPLY TO YOU IF AND TO THE EXTENT YOUR STATE, PROVINCE, OR COUNTRY DOES NOT ALLOW ANY SUCH EXCLUSION OR LIMITATION.

    1. IN NO EVENT SHALL XOLA BE LIABLE FOR ANY CLAIM ASSERTED AGAINST YOU BY ANY THIRD PARTY, EVEN IF XOLA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM, EXCEPT TO THE EXTENT EXPRESSLY PROVIDED IN SECTION 11.2.
    2. YOU AGREE THAT YOUR EXCLUSIVE REMEDY FOR ANY CLAIM ASSERTED AGAINST XOLA IN CONNECTINON WITH OR ARISING FROM THE CONTRACT SHALL BE TO RECOVER DIRECT DAMAGES UP TO AN AMOUNT EQUAL TO THE AMOUNT OF SUBSCRIPTION FEES PAID BY YOU IN THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM.
    3. YOU AGREE THAT IN NO EVENT SHALL XOLA BE LIABLE TO YOU FOR ANY OTHER DAMAGES OR LOSSES (BESIDES THOSE DESCRIBED IN 10.2.b) above), INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF FORM OR THEORY OF LIABILITY, EVEN IF XOLA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    4. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT MAY BE BROUGHT BY OR FOR YOU MORE THAN ONE (1) YEAR AFTER THE FIRST TO OCCUR OF:

      1. THE TERMINATION OR EXPIRATION OF THE CONTRACT; OR
      2. THE EVENT GIVING RISE TO SUCH CAUSE OF ACTION.
    5. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 10.2 APPLY EVEN IF THE REMEDY FAILS TO ACHIEVE ITS ESSENTIAL PURPOSE OR DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 10.2 APPLY TO ANY CAUSE OF ACTION RELATED TO THE CONTRACT, INCLUDING, WITHOUT LIMITATION, DELAYS OR FAILURES IN STARTING OR COMPLETING TRANSMISSIONS OR TRANSACTIONS; CLAIMS FOR BREACH OF CONTRACT, WARRANTY, GUARANTEE, OR CONDITION; STRICT LIABILITY; NEGLIGENCE; MISREPRESENTATION OR OMISSION; TRESPASS; VIOLATION OF STATUTE OR REGULATION; OR UNJUST ENRICHMENT.
  3. NO LIABILITY FOR END USERS

    Subscriber is solely responsible for all of its End Users, the End User's use of the Public Services in accordance with this Contract, the End User's sign-up for, purchase of and use of your products and services and any disputes between you and End User (or between End User and Xola in connection with this Contract). Xola does not have any obligations or liability hereunder with respect to any of the foregoing.

11. Indemnity

  1. Indemnification by Subscriber

    You agree to indemnify, defend, and hold Xola, its subsidiaries, and Representatives harmless from and against any and all claims, charges, damages and expenses (including, but not limited to, reasonable attorneys' fees and costs) based upon, arising out of, or otherwise related to:

    1. Your violation of the rights of a third party, including infringement by you of any intellectual property or other property rights of any such third party;
    2. Access to, use, or misuse of any part of Our Digital Properties, the Subscriber Data, and/or the Cardholder Data by you or your Representatives;
    3. Your or your Representative's' failure to comply with any applicable privacy law and/or any other applicable law or regulation;
    4. Any breach by you or your Representatives of this Contract;
    5. Any acts, omissions or claims of any End Users and any matters described in Section 10.3 above;
    6. Any ownership dispute between you and a third party; and/or
    7. Any dispute or conflict of ownership between constituent members or owners of Subscriber with regard to ownership of intellectual property and/or equity interests in the legal entity that constitutes Subscriber.
  2. Indemnification by Xola

    We agree to indemnify, defend, and hold you, your subsidiaries, affiliates, and Representatives harmless from and against any and all claims, charges, damages, and expenses (including, but not limited to, reasonable attorneys' fees and costs) based upon or arising out of:

    1. Any breach by us of the Privacy Policy materially affecting your Subscriber Data;
    2. Any breach by us of the Security Policy materially affecting your Subscriber Data;
    3. Any infringement by our Digital Properties of a third party's intellectual property rights;

12. Cancellation and Refund Policy

  1. Cancellation and Refund

    You shall have thirty (30) days from the date of purchase to determine whether the Purchased Services do not meet your needs. If the Purchased Services do not meet your needs, then you must notify Xola in writing within thirty (30) days after the Effective Date that you wish to terminate the Purchased Services and receive a refund of the corresponding Subscription Fees paid by you, less the cost of any Services provided prior to such cancellation based on Xola's Subscription Fees in effect at the time of such cancellation.

  2. Current Subscription Fees

    For the purposes of this Article 12, Xola's current subscription fees may be found at https://xola.com/. These fees are subject to change from time to time, at any time, without notice.

13. Term and Termination

  1. Term

    The term of the Contract commences on the Effective Date and shall continue on a month to month basis until terminated by either party in accordance with Section 13.2 below.

  2. Termination

    The date on which the Contract is terminated shall be the "Termination Date." You may terminate the Contract for any reason by providing advance written notice via email to Client support@xola.com at least thirty (30) days prior your chosen Termination Date. We may terminate the Contract for any reason by providing notice to your email address on file at the time at least thirty (30) days prior to the Termination Date that we select.

  3. Termination for Cause

    In the event of a breach or default of the Contract by you, we shall have the right to immediately terminate the Contract without notice. In the event of any breach or default of the Contract by Xola, you shall have the right to terminate the Contract by giving thirty (30) days written notice to us; provided, however, that we shall have the right to cure said reason for the termination during the thirty (30) day notice period. In the event we cure the breach, the Contract shall remain in full force and effect. You will not have the right to cancel any portion of the Contract and/or receive a refund pursuant to Article 12 above if you breach the Contract.

  4. Data Portability and Deletion

    1. Upon the termination of the Contract by either party, you may:

      1. Perform One Free Data Download Within 30 days after the Termination Date, you will be permitted to download, without charge, a copy of the then current Subscriber Data, except for Cardholder Data, via the reporting feature of the Purchased Services. Such Subscriber Data will be provided in a standard file type and will not contain Xola's proprietary information.
      2. Request an Assisted Data Download For an additional fee, you may request within 30 days after the Termination Date that we provide you a copy of the then current Subscriber Data, including Cardholder Data via a PCI-DSS approved secure file transfer method, within five (5) business days of such request (made within such 30 day period). Such file transfer will not contain Xola proprietary information.
    2. Effective as of 12:01 am on the thirty-first (31st) day after the Termination Date, we will have no further obligation to maintain or provide Subscriber Data and may thereafter delete and/or destroy all copies of Subscriber Data stored on your behalf that are in our systems or otherwise in our possession or control (without any obligation to do so), unless legally prohibited from doing so.
  5. Effect of Termination

    Upon termination of the Contract for any reason, all fees set forth in Article 4 above shall become immediately due and payable and all licenses and rights to access and use the Services and other Digital Properties shall terminate. Subscriber is liable for any orders placed or charges incurred through your account prior to termination. Upon the expiration or termination of this Agreement for any reason, (a) all amounts owed to Xola under this Agreement which accrued before such termination or expiration will be immediately due and payable to Xola, (b) all liabilities accrued by Xola as a result of orders placed or charges incurred through your account prior to termination will be immediately payable to and reconciled by Xola, and (c) Subscriber shall return to Xola (or if Xola so requests, destroy) all Confidential Information of Xola in Subscriber's possession or control.

14. Governing Law and Dispute Resolution

  1. Governing Law and Jurisdiction

    The Parties agree that the Contract shall be deemed to have been made and executed in the State of California, U.S. Any Dispute (as defined below) arising under the Contract shall be resolved in accordance with U.S. federal law and the laws of the State of California, without giving effect to the principles of conflicts of laws of any jurisdiction. The Parties agree if Section 14.2 below is deemed to be null and void, all Disputes arising between Parties under the Contract shall be subject to the exclusive jurisdiction of the San Francisco Superior Court and the western division of the U.S. District Court for the Central District of California. The Parties hereby consent to the exclusive jurisdiction of such courts and submit to the personal jurisdiction and venue of such courts.

  2. Binding Arbitration Agreement

    Both Parties and each of their respective subsidiaries, affiliates, and Representatives agree that any dispute, action, or other controversy ("Dispute") with respect to the Contract shall be resolved by binding arbitration. The Parties acknowledge that these TOS and your use of the Digital Properties evidence a transaction involving interstate commerce. The Federal Arbitration Act ("FAA"), 9 U.S.C. §1, et seq., shall control any arbitration proceedings commenced under this Section 14.2. Arbitration shall be the exclusive dispute resolution process. You understand that you and Xola are giving up the right to sue in court and to have a trial before a judge or jury.

    1. Either you or Xola may commence arbitration by sending a written notice of intent to arbitrate to the other party. Such notice shall (i) describe the nature and basis of the matter and (ii) set forth the specific relief sought.
    2. The arbitrator shall apply the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, where applicable, the AAA's Supplementary Procedures for Consumer Related Disputes, both of which are available at http://www.adr.org. The Contract shall control to the extent it conflicts with the AAA's Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes. The arbitrator shall comply with the terms of the Contract.
    3. All arbitrations shall take place in the County of San Francisco, California. You may request a telephonic hearing pursuant to the AAA rules. In a Dispute involving $10,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead.
    4. All decisions of the arbitrator shall be final, binding, and conclusive on all Parties. Judgment may be entered upon any such decision in accordance with applicable law in any court of competent jurisdiction. The arbitrator (if permitted under applicable law) or such court may issue a writ of execution to enforce the arbitrator's decision.
    5. The Parties shall share equally all initial costs of arbitration. All arbitration proceedings shall be closed to the public and confidential. All records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award.
    6. This Section 14.2 does not prevent you from bringing your Dispute to the attention of any federal, state, or local government consumer protection agencies that can, if the law allows, seek relief from Xola on your behalf.
    7. Nothing herein shall limit either Party from obtaining temporary or provisional equitable relief from a court of competent jurisdiction pending and subject to the outcome of any arbitration.
  3. Class Action Waiver

    Parties agree that any proceedings to resolve or litigate any Dispute will be conducted solely on an individual basis. Parties agree that they shall not bring or participate in any class action, private attorney general action, collective arbitration, or any other proceeding in which either party acts in a representative capacity, even if AAA's procedures or rules would otherwise allow such action. Parties also agree that if this Section 14.3 is found to be unenforceable, then Section 14.2 above and any other provision of the Contract concerning mandatory arbitration shall not apply to any action involving a purported class or representative proceeding, and such actions between Parties shall proceed, if at all, in accordance with Section 14.1 above.

15. General Terms and Conditions

  1. Disclaimer

    Subscriber understands and agrees that Xola provides references to various products and services offered by Subscribers and other third parties. Xola does not evaluate, and is not responsible for, any products or services provided by any third party. NOTHING IN THIS AGREEMENT SHALL RESULT IN XOLA BEING LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES RESULTING FROM A REFERRAL TO ANY THIRD PARTY PRODUCT OR SERVICE PROVIDER.

  2. Survivability

    The Parties' rights and obligations under Articles 7 (Confidentiality), 10 (Limitation of Liability), 11 (Indemnity), 14 (Governing Law and Dispute Resolution) and 15 (General Terms and Conditions), as well as Sections 2.2, 2.3 and 2.4, as well as any obligations to pay Subscription Fees and other amounts owing that accrued prior to termination, shall survive any expiration or termination of this Agreement.

  3. Assignment and Assumption

    You may not assign or delegate any right or obligation under the Contract without our prior written consent, which we may withhold at our sole discretion. We may require any proposed assignee of the Contract to enter into a new written agreement with us. We may assign or delegate any of our rights or obligations under the Contract (or the Contract as a whole) to any Person or entity.

  4. Severability and Construction

    If any provision of the Contract shall be held by a court, arbitrator, or other tribunal of competent jurisdiction to be invalid or unenforceable, the other portions of the Contract shall remain in full force and effect. The Contract shall be interpreted without regard to any presumption or rule requiring construction against the party that caused the Contract to be drafted. Within these TOS, except where the context clearly otherwise requires, the singular shall include the plural and vice versa, and the words "include", "includes" and "including" are deemed to be followed by the phrase "but not limited to", "without limitation" or words of similar import.

  5. Notices

    1. All notices, requests, demands, and other communications shall be validly given if delivered in person, by facsimile transmission, by electronic mail, by internationally recognized courier service or by registered or certified mail addressed to the other party at the address provided in the Subscriber Order or in the signature block of these TOS, unless such party has notified the other party of a substitute contact information in writing pursuant to this Section 15.5.
    2. Notices delivered in person or sent via facsimile or electronic mail during normal business hours shall be deemed to be received on the same date. Notices forwarded by registered or certified mail shall be deemed to be delivered three (3) days after such notice was mailed.
  6. Relationship

    The Parties will be doing business at their own risk and for their own profit. The Parties are independent contractors. Nothing in the Contract shall constitute a joint venture, partnership, or agency relationship between Subscriber and Xola or authorize either party to make any representation on behalf of or in any way to bind the other party to any obligation of any kind, express or implied, to any third party, or to incur any liability on behalf of the other party.

  7. Compliance with Laws

    You shall, at your expense, comply with all laws, ordinances, rules, regulations and other requirements, including laws relating to the privacy, transmission and use of personal or confidential information and data, of the government having jurisdiction pertaining to or in relation to any matter connected with or arising out of the Contract.

  8. Export Compliance

    The Services, related software components, other technology, and derivatives thereof may be subject to the export laws and regulations of the United States and other jurisdictions. You shall not use the Services in violation of any export law or regulation including the Export Administration Act of 1979, as amended (the "Act"), any successor legislation and the Export Administration Regulations issued by the Department of Commerce under the Act. You represent that you are not named on any U.S. government denied-party list. You shall not access or use the Services if you are located in a U.S.-embargoed country. You shall not provide access to the Digital Properties to any government, Person, or entity located in any such jurisdiction.

  9. Force Majeure

    Neither party shall be liable hereunder by reason of delay or failure in performance caused by force majeure, that is, circumstances beyond the reasonable control of a party, including, without limitation, acts of God, fire, flood, war, terrorist attack, armed conflict, embargo, civil unrest, labor unrest, power outage, Internet virus, denial of service attacks, or shortage of or inability to obtain materials and equipment.

  10. No Informal Waivers

    The failure or delay of either party to exercise any right or enforce any provision of the Contract, at any time or for any period of time, shall not be construed to be a waiver of that right or provision, or of the right of such party thereafter to enforce that right or provision.

  11. No Third Party Beneficiary

    The benefits and protections provided by the Contract shall inure solely to the benefit of the Parties. The Contract shall not be deemed to create any right in any Person or entity who is not a party to the Contract and shall not be construed in any respect to be a contract, in whole or in part, for the benefit of any third party.

  12. Entire Agreement; Amendment

    Parties agree that the Contract constitutes the entire agreement between Subscriber and Xola relating to the Services and associated subject matter hereof, and supersedes all previous representations, understandings, and agreements, whether oral or written, or whether established by custom, practice, policy, or precedent, between the Parties with respect to the subject matter of the Contract.

    Xola may make amend or make changes to this TOS from time to time in its sole discretion. When these changes are made, Xola will make a new copy of the TOS available on its Website. If you are a registered Subscriber who has provided a proper e-mail address to Xola, Xola will also provide you notice of any changes to the TOS to the primary email address you provided to us. All modified terms and conditions and the amended TOS will be effective thirty (30) days after such notice unless you first give Xola written notice of rejection of the modifications or amended TOS within such thirty day period. In the event of such rejection, this Contract will automatically terminate as of the date of such rejection and such termination shall be treated as a termination by you under Section 13.2 above. You acknowledge and agree that if you use the Service after the date on which the TOS has been changed Xola will treat your use as acceptance of the modified or amended TOS. If any modified or amended terms and conditions are not acceptable to you, your sole remedy is to timely provide the foregoing rejection notice to terminate the Contract as provided above. This TOS may not otherwise be modified or amended, except with the express written agreement of both parties. For the avoidance of doubt, Xola may separately amend the Privacy Policy and/or the Security in accordance with the provisions thereof.

  13. Suggestions

    You agree that by submitting or providing any suggestions, enhancement requests, comments, recommendations, ideas or other feedback regarding the Services or other Digital Properties or the use, features or operation thereof (collectively, "Suggestions"), you automatically grant Xola a license to any of your intellectual property rights therein. Accordingly, you hereby grant to Xola a royalty-free, worldwide, irrevocable, perpetual, sublicenseable license to use, and incorporate into the Services and other Digital Properties, any Suggestions.

  14. Questions

    All questions and requests for customer service or technical support should be directed to the Xola Customer Service Team

    Xola, Inc.
    67 Langton Street
    San Francisco, CA 94103