These CUSTOMER – TERMS & CONDITIONS (“Terms”) govern: (a) each order form entered into between Xajeet, Inc., a Delaware corporation (“Xajeet“), and Customer that incorporates the Terms by reference and pursuant to which Xajeet shall provide Customer access to the Platform and, as applicable, Support Services contemplated by the order form (each, an “Order”); and (b) each statement of work entered into between Xajeet and Customer that incorporates these terms by reference and pursuant to which Xajeet shall provide the Customer Professional Services contemplated by the statement of work (each, an “SOW”). Each Order and SOW is subject to the Terms. Capitalized terms used herein but not defined herein have the meanings ascribed to them in the applicable Order or SOW. As used herein: (i) “Agreement” means, collectively, all Orders and SOWs, together with the Terms; (ii) “Customer” means the customer identified in the applicable Order or SOW; (iii) “Deliverable” means any work product or other material arising from any Support Services or Professional Services; (vi) “Platform” means Xajeet’s web analytics platform as a service; (v) “Professional Services” means the professional consulting services that Xajeet will provide to Customer pursuant to an SOW, as more fully described in the applicable SOW; (vi) “Services” means access to the Platform, Support Services, Professional Services, and any other services contemplated by an Order or SOW; and (vii) “Support Services” has the meaning ascribed to it in Section 1(c).
PLEASE REVIEW THESE TERMS CAREFULLY. THEY IMPOSE BINDING ARBITRATION AND A WAIVER OF CLASS ACTIONS. THESE TERMS REQUIRE BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING FROM OR RELATING TO THESE TERMS OR CUSTOMER’S ACCESS TO OR USE OF THE PLATFORM, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THESE TERMS (EACH, A “CLAIM”), AND CUSTOMER AGREES THAT ANY CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 10(g) CAREFULLY TO UNDERSTAND CUSTOMER’S RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
In consideration of the mutual promises contained herein, the parties agree as follows:
1. Access and Use.
(a) Provision of Access to Platform. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement and to the payment of all Fees due to Xajeet, Xajeet hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 10(i)) right to access and internally use the Platform during the term specified in the applicable Order in connection with the Customer website specified on the Order (the “Customer Website”). Use shall be made only by Customer’s employees and independent contractors (“Authorized Users”), which, depending upon their permissions assigned by Customer, shall be “Basic Users” or “Admin Users,” provided that all Authorized Users may be required to accept Xajeet’s then-current set of end user terms (“User Terms”) as a condition to accessing the Platform. Xajeet shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Platform.
(b) Deliverables. In the event that Xajeet provides Customer with any Deliverable, Xajeet hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 10(i)) right to access and internally use the Deliverable in connection with the Customer Website, provided that all restrictions set forth herein with respect to use of the Platform (including without limitation the restrictions set forth in Section 1(c)) also apply to use of any Deliverable.
(c) Use Restrictions. Customer shall not use the Platform for any purposes beyond the scope of the access granted in Section 1(a). Without limitation, Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Platform, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make the Platform available to third parties; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform, in whole or in part; (iv) remove any proprietary notices from the Platform; or (v) use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(d) Support Services. During the term specified in the applicable Order, Xajeet will provide Customer with (i) set-up, configuration, and tune-up services, (ii) support in accordance with Xajeet’s then-current standard practices, and (iii) if applicable to the subscription level for which Customer is subscribed and if requested in that month, weekly check-in and professional services set forth on the applicable Order (the “Support Services”).
(e) Professional Services. Xajeet shall provide Customer with the Professional Services set forth in the applicable SOW. Each SOW will specify, among other terms the parties deem relevant: (i) a description of the Professional Services that Xajeet will provide; (ii) the schedule for performance; and (iii) the fees that Customer will pay and the schedule for payment. In the event of any conflict between the Terms and an SOW, the Terms will take precedence and govern, except as stated expressly and unambiguously to the contrary in the SOW.
(f) Suspension. Notwithstanding anything to the contrary in this Agreement, Xajeet may suspend the Services and Customer’s and any Authorized User’s access to any portion or all of the Platform if: (i) Xajeet reasonably determines that (A) there is a threat or attack on any of the Xajeet IP (defined below); (B) Customer’s or any Authorized User’s use of the Platform disrupts or poses a security risk to the Platform, Xajeet, or to any other customer or vendor of Xajeet; (C) Customer, or any Authorized User, is using the Xajeet IP for fraudulent or illegal activities; (D) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Xajeet’s provision of the Platform to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Xajeet has suspended or terminated Xajeet’s access to or use of any third-party services or products required to enable Customer to access the Platform; or (iii) in accordance with Section 3(a)(2) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Xajeet shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Platform following any Service Suspension. Xajeet shall use commercially reasonable efforts to resume providing the Services and access to the Platform as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Xajeet will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
(g) Third-Party Products and Components. Xajeet may from time to time make third-party products (“Third-Party Products”) available to Customer, and in addition, the Platform may be comprised in part of certain third-party components (“Third-Party Components”). For purposes of this Agreement, such Third-Party Products may be subject to their own, or to certain additional, terms and conditions. Further, Third Party Components may be subject to separate terms and conditions. For more information regarding terms and conditions applicable to Third-Party Products and Third-Party Components, visit https://www.xajeet.com/privacy-policy/. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products or the features of the Platform that utilize the same.
(h) Free Access. At its sole discretion, Xajeet may offer certain Customers limited, free access to the Platform. Xajeet reserves the right to suspend or terminate such free access at any time and require such Customers to convert to fee-based access to the Platform.
(i) Emails. From time to time, Xajeet may send Customer emails relating to this Agreement or Customer’s business relationship with Xajeet and other emails such as notices about new offerings from Xajeet or is business associates, customer surveys, and other information that may be of interest to Customer. By entering into this Agreement, Customer agrees to receipt of such emails from Xajeet, provided that Customer may opt out of further receipt of advertising and promotional emails from Xajeet by following the opt-out instructions provided by Xajeet. Customer understands that Xajeet may continue to send emails to Customer relating to this Agreement or Customer’s business relationship with Xajeet even after Customer exercises such opt-out.
2. Customer Responsibilities.
(a) General. Customer is responsible and liable for all uses of the Platform resulting from access thereto provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer, or a breach of the User Terms, will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Platform and of the User Terms, and shall cause Authorized Users to comply with such provisions.
(c) CUSTOMER IS RESPONSIBLE AND LIABLE FOR ALL APPLICABLE STATE AND NATIONAL STATUTORY OR REGULATORY REQUIREMENTS PERTAINING TO THE OPERATION OF ITS BUSINESS, AND ANY VIOLATIONS THEREOF. THE CUSTOMER IS SOLELY RESPONSIBLE FOR COMPLIANCE WITH SUCH LAWS AND REGULATIONS.
3. Fees and Payment.
(a) Fees. Customer shall pay Xajeet the non-refundable fees (“Fees”) as set forth in the applicable Order or SOW, without offset or deduction. Customer shall make all payments hereunder in U.S. dollars on or before the commencement of the applicable month of service or as otherwise set forth in the applicable Order or SOW. Customer may be required to establish an account through Xajeet’s designated third party payment processor and in such case (i) shall provide a valid credit card, debit card and/or other authorized payment method (“Payment Method”) and (ii) hereby authorizes Xajeet to charge the Payment Method for any and all amounts due to Xajeet. If Customer fails to make any payment when due, including because a Payment Method is declined, then without limiting Xajeet’s other rights and remedies: (1) Customer shall reimburse Xajeet for all reasonable costs incurred by Xajeet in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (2) if such failure continues for three (3) days or more, Xajeet may suspend Customer’s and its Authorized Users’ access to any portion or all of the Platform until such amounts are paid in full.
(b) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for and shall, at Xajeet’s option, pay to Xajeet for remittance, or remit, all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Xajeet’s income. Xajeet shall have no liability for any taxes owed by Customer as a result of its use of the Service.
4. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Xajeet’s Confidential Information includes, without limitation, its Platform specifications and documentation, and any technical information concerning the Platform. Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees and contractors who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. Subject to Section 5(b), on the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. During the Term, Xajeet will use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer’s Confidential Information. Notwithstanding the foregoing, Customer acknowledges that, notwithstanding any security precautions deployed by Xajeet, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to Confidential Information. Xajeet cannot and does not guaranty the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient.
5. Intellectual Property Ownership; Feedback; License to Customer Data.
(a) Xajeet IP. Customer acknowledges that, as between Customer and Xajeet, Xajeet and its licensors own all right, title, and interest, including all intellectual property rights, in and to the Platform and all Deliverables (collectively, “Xajeet IP”) and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products. Except for the limited rights and licenses expressly granted under Sections 1(a) and 1(b), nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party, any intellectual property rights or other right, title, or interest in or to the Xajeet IP.
(b) Customer Data and Content. Xajeet acknowledges that, as between Xajeet and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data and Customer Content. “Customer Data” means any information and data in any form or medium, that is submitted, posted, or otherwise transmitted by Customer or an Authorized User through the Platform or in connection with Services, including directly or via access to an integration with a third-party offering (e.g. Google Analytics). “Customer Content” means the copyrightable material generated via Customer’s and its Authorized Users’ use and operation of the Platform. Customer hereby grants to Xajeet an irrevocable, non-exclusive, transferable, sublicensable, royalty free license during the Term to use Customer Data and Customer Content in order to provide the Platform and the Services to Customer and Authorized Users. In addition, Customer hereby grants to Xajeet an irrevocable, perpetual, non-exclusive, sublicensable, royalty-free license to use Customer Data and Customer Content to (i) improve the Service and Xajeet’s technology, and (ii) compile and synthesize aggregated and/or de-identified information (“De-Identified Data”). To the extent that Xajeet collects or generates De-Identified Data, such De-Identified Data will be owned solely by Xajeet. Xajeet shall ensure that Customer is not identified or identifiable as the source of any such De-Identified Data. Customer agrees and acknowledges that it may not have access to the De-Identified Data.
(c) Feedback. If Customer or any of its Authorized Users submits to Xajeet any comments, suggestions, or other feedback regarding the Platform (“Feedback”), Customer agrees that Xajeet will be free to use such Feedback for any purpose without accounting or obligation. Xajeet reserves all rights not expressly granted to Customer in this Agreement.
6. Limited Warranty and Warranty Disclaimer.
(a) Xajeet warrants that the Platform will conform in all material respects to its documentation and that the Services will be performed in a professional and workmanlike manner. Xajeet does not make any representations or guarantees regarding uptime or availability of the Platform. THE FOREGOING WARRANTY DOES NOT APPLY, AND XAJEET STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
(b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6(a), THE PLATFORM, XAJEET IP AND SERVICES ARE PROVIDED “AS IS” AND XAJEET HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. XAJEET SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6(a), XAJEET MAKES NO WARRANTY OF ANY KIND THAT THE XAJEET IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
7. Indemnification. Customer shall indemnify, hold harmless, and, at Xajeet’s option, defend Xajeet from and against any losses, damages, liabilities, and costs (including reasonable attorneys’ fees) resulting from any third party claim, suit, action, demand or proceeding arising out of or related to (i) the Customer Data or the Customer Content, including without limitation any claim that the Customer Data or Customer Content infringes or misappropriates such third party’s intellectual property or other proprietary rights, and/or (ii) any violation of Section 2(b), and/or (iii) Customer’s or any Authorized User’s negligence or willful misconduct, or violation of industry standards, laws or regulations. Customer may not settle any claim against Xajeet unless Xajeet consents to such settlement in writing. Xajeet reserves the right to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.
8. Limitations of Liability. IN NO EVENT WILL XAJEET BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER XAJEET WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL XAJEET’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO XAJEET UNDER THIS AGREEMENT IN THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9. Term and Termination.
(a) Term. The initial term for each Order will be as set forth in the Order, and such term will automatically renew on a month-to-month basis until terminated in accordance with Section 9(b). The term of this Agreement begins on Xajeet’s acceptance of the initial Order or SOW (the “Effective Date”) and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until all Orders and SOWs have expired or been terminated (the “Term”).
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) Xajeet may terminate this Agreement or, at Xajeet’s election, the Order or SOW at issue, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Xajeet’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 1(b) or Section 4;
(ii) either Party may terminate this Agreement or, as applicable, an Order or SOW, effective on written notice to the other Party, if the other Party materially breaches this Agreement or, as applicable such Order or SOW, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured fifteen (15) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate an Order for its convenience, such termination to take effect thirty (30) days following the next day of the then-current month that corresponds with the effective date of the Order (e.g. if the effective date of the Order is the 8th of April and notice of termination is received on June 2nd, then the Order shall terminate on July 8th).
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of an Order, all rights granted by Xajeet under the Order will immediately terminate, and Customer shall immediately discontinue use of the Platform. Upon expiration or earlier termination of this Agreement, all Orders and SOWs shall terminate and Customer shall immediately discontinue use of the Platform and, without limiting Customer’s obligations under Section 4, Customer shall delete, destroy, or return all copies of the Xajeet IP and certify in writing to the Xajeet that the Xajeet IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
(d) Survival. This Section 9(d) and Sections 1(b), 3, 4, 5, 6(b), 7, 8, 9(c) and 10 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the Order (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. In no event shall Xajeet be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Xajeet’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, epidemics, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. No amendment to or modification of this Agreement, or waiver of any provision herein, is effective unless it is in writing and signed by an authorized representative of each Party, provided that in addition to the foregoing, Xajeet may propose amendments to this Agreement that shall become effective upon the sooner to occur of (i) a subsequent click-to-accept mechanism presented within the Platform and accepted by Customer or (ii) Customer’s failure to respond to such notification within fifteen (15) days of receipt, and in either such case such amendment(s) shall be deemed to be accepted by Customer. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas.
(g) Binding Arbitration and Class Action Waiver.
(i) ALL CLAIMS (DEFINED ABOVE) WILL BE RESOLVED BY BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT CUSTOMER MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES HEREOF AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF CUSTOMER’S CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
(ii) The arbitration will be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. The arbitrator will, among other things, have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any Claims. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. The arbitration will be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, such hearing will be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator on all matters relating to the Claim will be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
(iii) CUSTOMER AND XAJEET EACH: (i) AGREE THAT ALL CLAIMS WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS; AND (ii) EXPRESSLY WAIVES ANY RIGHT TO HAVE A CLAIM DETERMINED OR RESOLVED ON A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE BASIS. IF FOR ANY REASON THE PROVISIONS OF THE PRECEDING SENTENCE ARE HELD TO BE INVALID OR UNENFORCEABLE IN A CASE IN WHICH CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE CLAIMS HAVE BEEN ASSERTED, THE PROVISIONS OF THIS SECTION 21 REQUIRING BINDING ARBITRATION WILL LIKEWISE BE UNENFORCEABLE AND NULL AND VOID. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, CUSTOMER AND XAJEET EACH WAIVES ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM WILL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN HOUSTON, TEXAS. CUSTOMER HEREBY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
(iv) Notwithstanding anything to the contrary, Customer and Xajeet may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect our intellectual property rights, whether in aid of, pending or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section.
(v) If Xajeet implements any material change to this Section, such change will not apply to any Claim for which Customer provided written notice to Xajeet before the implementation of the change.
(h) Insurance and Waiver of Subrogation. Customer should protect against any risk of loss with the appropriate insurance coverage, and is solely responsible for obtaining all such insurance coverage. To the fullest extent permitted by applicable law and the applicable insurance policies you obtain and maintain, Customer releases Xajeet from all liability for any loss, occurrence, event or condition covered by your insurance.
(i) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Xajeet. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(j) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Customer, Section 1(b), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
(k) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
(l) Publicity. If indicated on the Order, Customer consents to Xajeet’s use of Customer’s name and logo within listings of its customers and similar such uses.