Customer Terms of Service
Effective Thursday, June 20, 2017.
Welcome to 10xApps
Legal Agreement. This Customer Terms of Service Agreement (the “Agreement”) is a legal agreement between you and 10xApps LLC (together with our affiliates, “10xApps”, “we”, “us” or “our”) setting forth, among other things, the terms and conditions for your use of, access to, downloading of, or procurement of, as the case may be: (i) the 10xApps API Platform, and other apps or APIs provided or made available by, or obtained from, 10xApps (“Plug-in(s)”) and/or (ii) these or other online or offline services performed or made available to you by 10xApps from time to time, including but not limited to technical and non-technical support, consulting, 10xApps Premium Services (collectively, the “Services”); and/or (iii) your 10xApps account (the “Account”); and/or (iv) any related client software including any updates and accompanying written documentation (the “Software”); and/or (v) any website from which any of the Plug-in, Services, or Account are available and/or accessible (the “Website”). Collectively or individually, the Plug-in, Services, Account, Software and Website may be referred to as the “Products”.
Acknowledgement. You represent to us that you are lawfully able to enter into contracts. If you are entering into this Agreement on behalf of an entity (such as, but not limited to, a company or partnership), you represent to us that you have legal authority to bind that entity. If you are entering into this Agreement and are an individual, you represent to us that you are 18 years of age or older. If you are entering into this Agreement on behalf of a minor, you represent that you have the necessary authority to do so and that you have read and understood the Privacy Policy and the rest of this Agreement.
Acceptance. By using, accessing, or downloading the Products, you accept and agree to the provisions of this Agreement without any reservations, modifications, additions or deletions. If you do not agree to any provisions contained in this Agreement, you are not authorized to use the Products. You may be denied access to the Products, with or without notice to you, if you do not comply with any of the provisions of this Agreement.
Amendments to Agreement. We reserve the right, from time to time, to modify, amend or restate this Agreement, our Privacy Policy or any other terms, rules or conditions that we may implement from time to time. We will take reasonable steps to attempt to notify you of such amendments (e.g. post a notice and a link to a copy of the amended Agreement or other terms, policies, rules or conditions on the Account and/or on a page of the Website) but you agree that such notice is not required and waive any right to dispute any term of the Agreement due to a prior amendment and/or failure to receive adequate notice. If you do not agree to, or cannot comply with, the Agreement as amended, you are not authorized to use the Products. You will be deemed to have accepted the Agreement and/or our Privacy Policy as amended if you continue to use the Products after any amendments are posted on the Account and/or the Website. We reserve the right to refuse to provide the Products, or any of our other services or products, to anyone at any time.
Any questions you have regarding this Agreement or its terms should be directed to info@tenxecom.com
10xApps, You, Your Shoppers, and Their Data
10xApps Is Your Data Processor. You agree that you are the controller of any information acquired by your e-Commerce Platform (as defined below) and that 10xApps is the processor of such data, and that this Agreement constitutes your written direction and authorization for 10xApps to provide the Services to you, in respect of which 10xApps is provided access to certain Shopper data (see below). You agree that 10xApps is providing the Services and the use of the Plug-in to you at your request and via your website, online application, or other networked and 10xApps-enabled e-Commerce platform (the “e-Commerce Platform”). Further, unless there is prior written notice, which shall not include the Data Rights Access Portal or any use associated therewith, 10xApps has no direct contact or control over the interaction, collection of data, or obtaining of consent, among other direct interactions, with any individual who is an end customer, or any other person, using your e-Commerce Platform (“Shopper”). For the purposes of this Agreement, the terms ‘processor’ and ‘controller’ shall have the meanings defined by the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (hereinafter, the “GDPR”).
Obligation To Comply with Applicable Law. 10xApps has no direct or indirect control over the interaction with any Shopper, nor over any information that you may collect or process prior to, independently of, or concurrently with the Services. Accordingly, you agree to obtain from Shoppers using your e-Commerce Platform any necessary consents in accordance with applicable law, and that such consent at least provide access by way of hyperlink to 10xApps’s Privacy Policy. Further you agree that you are in compliance with applicable law, including but not limited to law respecting any Shopper’s data that is collected via your e-Commerce Platform. 10xApps is not liable for, and you agree to indemnify 10xApps for, any non-compliance with applicable law that relates to your use and processing of any non-10xApps Shopper data provided that such non-compliance results from any one or series of acts and/or omissions by you, including but not limited to non-compliance relating to the collection or processing of data that was collected by you prior to, independently of, or concurrently with the Service or the operation of the Plug-in.
e-Commerce Platforms and Children. The 10xApps Products and Services are not designed for, and not intended to support or be used in association with either (i) commercial sales to, or commercial activities with, individuals under the age of 18, or (ii) e-Commerce Platforms that are intended or designed for interacting with individuals under the age of 18. You agree that your e-Commerce Platforms shall not be used in such a manner and that you shall take reasonable technological and administrative steps to avoid such uses.
Account. To access and use the Services and the Software, you must create an Account with a valid e-mail address. You are responsible for all activities that occur under your Account, regardless of whether the activities are undertaken by you, your employees or a third party. You will contact us immediately if you believe an unauthorized third party may be using your Account or if your Account information is lost or stolen. You may terminate your Account and this Agreement in accordance with the Section titled “Term and Termination”.
Account Information. In creating your Account, you agree to provide truthful information, including but not limited to a password as well as your name, business address and a valid email address (the “Account Information”). You agree to provide accurate Account Information and to update your Account Information as necessary to keep it accurate. You must provide us with notice to info@tenxecom.com if your contact details change. You acknowledge that providing any false information or statement to 10xApps shall constitute a material breach of this Agreement.
Support. Support services will only be available to you if you have an active Account with 10xApps. Support services will be provided through 10xApps’s Help Desk portal or by email communication to those email addresses associated with the Account. Requests for support services must be directed to info@tenxecom.com.
Administrators. You will be deemed to have taken any action that occurs in association with your Account, and/or any action that you permit, assist or facilitate any person or entity to take related to this Agreement. You are responsible for any individual or entity, including but not limited to your employees, agents, representatives, and permitted contractors (each, an “Administrator”) that directly or indirectly accesses or uses your Account. You will ensure that Administrators comply with your obligations under this Agreement, and that the terms of your agreement with each Administrator are consistent with this Agreement. You are responsible and liable for any act or omission of an Administrator as if committed or omitted by you. If you become aware of any violation of your obligations under this Agreement by an Administrator, you will immediately terminate such Administrators’ access to the Products.
Changes
Modifications to Products. We may change or discontinue any of the Products, add new services or tools that form part of the Products, or add, change or remove features or functionality of the Products from time to time.
Payment and Fees
10xApps Plan. Subscription fees (in US Dollars) together with applicable Taxes (collectively referred to as “Plan Fees”) will be calculated in accordance with the applicable 10xApps Plan associated with your Account. Pricing will be as posted on the eCommerce platform where the Products are installed, subject to any alternative pricing plan agreed to in writing by you and 10xApps.
Fees. We will calculate and bill fees (in US Dollars) for the Products (“Plan Fee”) on a 30-day billing cycle, as calculated from the date on which you open an Account or otherwise access or download a Product, or, if you are using or accessing a free trial plan (“Trial”), your Account converts from a Trial to a non-Trial or fee-based status (“Paid Service”), or on a more frequent basis at our sole discretion (each, a “Billing Cycle”). Your first Billing Cycle will begin on the date that your Account is created, unless you are using a Trial, in which case it begins on the date that such Trial converts to a Paid Service, and this day, or the next closest day, of each month will be used as the first day of each following Billing Cycle (for example, if you create your Account on the 5th of January, your Billing Cycle will begin 30 days after and you will be billed every 30 days thereafter).
Payment. You will pay us the Plan Fees by credit card or, at our sole discretion, by another payment method that we support. You authorize us to charge to the credit card number you provide through your Account all Plan Fees as they come due and payable. All Plan Fees are due and payable in advance, with the first Plan Fee payment due and payable at the time you create your Account or, when your Account is created as part of a Trial Plan, when it converts to a Paid App, and thereafter on the first day of each Billing Cycle. All amounts payable under this Agreement will be made without setoff or counterclaim and without any deduction or withholding. Plan Fees for any new Products or new feature of a Product will be effective when we post updated fees and charges on the Website or to your Account, unless we expressly state otherwise in a notice to you.
Increases. We may increase the Plan Fees or add new fees and charges for any existing Product by giving you at least 14 days’ advance notice and approval.
Payment Gateway. Your 10xApps Account must be set up to process payment using a live payment gateway and you must comply with their terms of service. Failure to comply with this Section 4.5 shall result in an immediate suspension of your Account and access to the Products, as well as a material breach of this Agreement.
Taxes. All Plan Fees and any other related fees and charges payable by you are exclusive of applicable federal, provincial, state or other applicable governmental sales, goods and services, harmonized, VAT or other taxes, duties, fees or charges now in force or enacted in the future (collectively, “Taxes”). You will provide us with any information we reasonably request to determine whether we are obligated to collect certain Taxes, including, but not limited to federal goods and services tax (“GST”), harmonized sales tax (“HST”), provincial sales tax (“PST”), or VAT, from you, including your GST, HST, PST and/or VAT number or other applicable sales or consumption tax number. If any deduction or withholding is required by applicable law, you will notify us and will pay us any additional amounts necessary to ensure that the net amount we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required.
Other Taxes. You are responsible for all applicable Taxes, including, but not limited to, GST, HST, PST, VAT, and/or State, Provincial, or other local sales taxes, as applicable based on the billing address you provide to us, that arise from or as a result of your use of the Products.
No Refunds. Subject only to applicable laws which may require otherwise, you acknowledge and agree that 10xApps does not, and will not under any circumstance be obligated to, provide refunds of any fees or charges (including, but not limited to, Plan Fees) paid by you under this Agreement for use of the Products in accordance with your 10xApps Plan or in connection with any change in your 10xApps Plan.
Intellectual Property
10xApps Intellectual Property. As between you and us, we own and reserve all right, title and interest in and to the Products. You may not use the names, trademarks, logos and graphics files that represent the Products without our written permission. The Products contain copyrighted material, trade secrets and other proprietary material.
Patent, Copyright, Trademark Notices and Third-Party Software Licenses. The Products and documentation (except for any Third-Party Content) were designed and programmed by 10xApps and are subject to applicable Copyright law. All rights to such Copyright, and all other intellectual property rights in favor of 10xApps, are reserved, except as otherwise provided herein. The following are registered and/or unregistered trademarks of the Licensor: 10xApps, other 10xApps trademarks, service marks, graphics, and logos existing now or in the future (collectively, the “Trademarks”). The Products may contain third-party trademarks, service marks, graphics, and logos. You are not granted any right or license with respect to the Trademarks or the trademarks of any third party.
Data and Databases. 10xApps owns all data collected using the Products (“Collected Data”), except to the extent that prior existing ownership rights and/or applicable law preclude 10xApps’s title in such data. 10xApps owns all data generated, calculated, or derived from all Collected Data and Customer Provided Data (defined below) used by or provided to the Products (“Calculated Data”). Except as may be licensed in Section 6, 10xApps reserves all of its rights in the Collected and Calculated Data, including but not limited to US and other foreign Copyright laws and the European Directive on the Legal Protection of Databases.
License Granted by 10xApps
Grant of License. Subject to your agreement and continued compliance with this Agreement and the Privacy Policy and any other rules, policies or terms that we may adopt in the future, 10xApps grants to you a limited, non-exclusive, non-transferable, revocable license to access and use the Products in accordance with the terms and conditions set forth in this Agreement. 10xApps reserves all right, title and interest not expressly granted under this license to the fullest extent possible under applicable laws. ANY USE OF THE PRODUCTS NOT SPECIFICALLY AND EXPRESSLY PERMITTED UNDER THIS AGREEMENT IS STRICTLY PROHIBITED.
Restrictions. You agree that you will not use the Products in any manner or for any purpose other than as expressly permitted by this Agreement. Specifically, without limiting the foregoing, you agree that you will not, nor will you attempt to: (a) use the Products to reproduce, transmit, display or distribute any material that infringes the intellectual property rights of any third party including any patent, copyright, trademark, service mark, trade secret, or other proprietary right, in any medium or via any method without 10xApps’s express written permission; (b) use our Products in any way that violates the terms of this Agreement; (c) disassemble, decompile or otherwise reverse-engineer the Products or apply any other process or procedure to derive the source code of any software included in the Products or alter or remove any proprietary rights or copyrights notice or identification which indicates ownership of the Products; (d) copy, alter, modify or create any derivative work of the Products, except as expressly permitted herein; (e) access or use the Products in a way intended to avoid incurring charges, fees or the payment of any applicable Taxes; (f) deliver, disclose or convey to any third party, either directly or indirectly, the contents of the Software, or (g) permit or enable any third party to do any of the foregoing.
Inconsistent Licensing Prohibited. Subject to this Agreement, you may use the Products in association with, in support of, or in conjunction with your products and services and/or third-party products and services, including but not limited to apps, websites, platforms, social networking sites, or other online or offline offerings (an “Associated Offering”). Your use, and any terms, conditions, or licenses associated with an Associated Offering may not be inconsistent with, or cause you to breach your obligations, under this Agreement, including the Privacy Policy as set forth in Section 10.
License is Conditional. The Products are owned by 10xApps and are protected by US, Canadian, and other foreign intellectual property laws and international treaty provisions. All licenses granted to you in this Agreement are conditional upon your continued compliance with this Agreement, as well as applicable law, and will immediately and automatically terminate if you do not comply with any term or condition of this Agreement or of applicable law.
Service Interruptions
Service Interruptions. Your access to and use of the Products may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Products for any reason, including as a result of power outages, system failures or other interruptions. In addition, 10xApps is entitled to suspend access to any portion or all of the Account at any time (i) for scheduled downtime to permit us to conduct maintenance or make modifications to any service or product, which we will endeavor, but shall not be obligated, to schedule during lower-use time periods; and/or (ii) in the event of a denial of service attack or other attack on the Account or any other event that we determine, in our sole discretion, may create a risk to the applicable service or product, to you or to any of our other customers if the service or product were not suspended; and/or (iii) in the event that we determine that any service or product is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons; and/or (iv) any violation of this Agreement (collectively, “Service Suspensions”). 10XAPPS IS NOT RESPONSIBLE IN WAY, OR LIABLE TO YOU OR ANY THIRD PARTY IN ANY WAY, FOR ANY LOSS OR DAMAGE TO YOU RESULTING FROM ANY SERVICE INTERRUPTIONS OR SERVICE SUSPENSIONS, HOWSOEVER THEY MAY BE CAUSED.
Notice of Interruptions. To the extent we are able, we will endeavor to post updates on the Account, the Website, or our Social Media channels (e.g. Facebook, Twitter), regarding any Service Suspension and resumption of service following any such suspension.
Security
Security. You are solely responsible for maintaining the confidentiality of your email and password associated with your Account, for restricting access to your password and to your computer while logged into the Account and for properly configuring and using the Products. You agree to accept responsibility for all activities that occur under your Account.
No Security Guarantee. We endeavor to use reasonable security measures to protect against unauthorized access to your Account. 10xApps has redundant and distributed systems, and other system measures, that provide for ongoing confidentiality, integrity, availability and resilience, and our systems, and the measures implemented for ensuring the security of Shopper Data, are routinely tested or assessed. We cannot, however, guarantee absolute security of your account, Account Information or any other information we collect, and we cannot promise, for example, that our security measures will prevent third party “hackers” from illegally accessing the Account, Account Information or any other information. You agree to immediately notify 10xApps within 48 hours should you become aware of any unauthorized use of your Account or of any Collected Data, or any other breach of security or inadvertent disclosure or loss of any Collected Data, and to accept all risks of unauthorized access to the Account, Account Information, Collected Data, and any other information you provide to 10xApps, including for personal data that is not collecting in accordance with the Privacy Policy or applicable privacy or intellectual property legislation or other law.
Encryption. Your Account Information, except for Account Information that is a credit card number, may be transferred unencrypted over one or more networks and may be changed, modified or otherwise adapted as required to meet the technical requirements of such transmission. Once obtained by 10xApps, no Shopper data shall be transferred unencrypted in any way.
Data Protection Agreement and Rights, Risks, and Accountability
Customer Data. The Collected Data may include customer personal information collected (i) by you through the use of your e-Commerce Platform, and which is provided to us; and (ii) directly by you or other third parties from prior or independently collected personal information and for which you have provided authorization to disclose such information to 10xApps (“Customer Provided Data”) (all of which shall be referred to as “Personally Identifiable Information” or “PII”). 10xApps will never disclose any PII to any third party without consent or other lawful justification or obligation in accordance with Section 10.3 hereof.
Privacy Policy Incorporated Herein. Your use of the Products and collection, and provision to 10xApps, of third party personal data is also subject to our Privacy Policy, as it may be updated or amended from time to time, the terms of which are incorporated by reference into and made a part of this Agreement.
10xApps Data Protection Obligations. To the extent that any of the following are required by applicable law, and subject to applicable law, 10xApps shall do the following in respect of PII that was obtained by 10xApps via you, your e-Commerce Platform, or a third-party on your behalf:
Restrict processing of any such PII to that set forth in the Privacy Policy
Continue to implement the security measures described in Section 9.2 above;
Not disclose to any third-party any such PII;
Not engage directly with another processor to provide the Services to you;
Keep records of its processing activities with respect to any such PII;
Cooperate with any Supervisory Authority in respect of any complaint or investigation relating to such PII (as defined by and required by the GDPR);
Notify you in respect of any suspected or actual breach of our data security or other unauthorized access or processing of any such PII, including the extent and nature of the breach, possible or likely consequences, measures taken to address and, where possible, mitigate the breach;
Have a Data Privacy Officer (“DPO”) available to respond to requests, and inquiries of a Supervisory Authority, subject to Section 10.4 below.
Your Data Protection Obligations. You hereby acknowledge and agree that your processing of any PII that was obtained by 10xApps via you, your e-Commerce Platform, or a third-party on your behalf, is and shall be in compliance with all applicable data protection or data privacy law and that, in respect of such PII, to the extent that any of the following are required by applicable law, and subject to any applicable law, you shall:
Obtain consent from your Shoppers after having provided them access to at least our DRPP;
Incorporate the 10xApps, by hyperlink or textual incorporation, any Privacy Policy or similar terms that you use in association with your Shoppers;
For the purposes of, and in respect to, Collected Data that has been collected via your e-Commerce Platform, act as Representative within the European Union, to the extent that the GDPR requires you to do so and you are not located in the European Union, including for the purposes of Shoppers contacting 10xApps with respect to its activities relating to PII.
Data Protection Officer. Subject to this Section 10.4 and only in respect of Collected Data that has been collected via your e-Commerce Platform, you may make available to your Shoppers contact information for 10xApps’s DPO, namely info@tenxecom.com. You hereby agree and acknowledge that the 10xApps DPO is not responsible for responding to or addressing, and at its sole discretion may not respond to (although 10xApps will reasonable efforts to notify you, if you have not been notified already, of any such inquiries received by us from one of your Shoppers), any inquiry or investigation in respect of any PII that (i) relates to data stored and/or processed by you independently of 10xApps; and (ii) relates to non-compliance with applicable law that is a result of any act or omission by you.
Breach of this Section 10 will be deemed to be a material breach of this Agreement. You agree that you are responsible for, liable for any damages resulting from, and shall indemnify 10xApps in accordance with Section 14.6 hereinbelow for, any failure to comply with any applicable data privacy laws, and all related unlawful acts or omissions in the collection and disclosure to 10xApps of any Customer Provided Data, to the extent that such failures, acts, or omissions relate to Collected Data that was obtained by 10xApps via your eCommerce Platform, and such acts or omissions are not contributed to by 10xApps.
Lawful Disclosures. 10xApps may at its sole discretion cooperate with and disclose information (including your Account Information) to any authority, government official or third party, without giving any notice to you, in connection with any investigation, proceeding or claim arising from an asserted illegal action or infringement whether related or unrelated to your use or misuse of your Account.
Email. You shall not collect and use, or disclose to 10xApps as Customer Provided Data, any third-party email addresses or other information, including to send commercial electronic messages, which may be collected through a 10xApps Product in association with your website, platform, app, or other offering, except in accordance with our Privacy Policy and applicable law, including but not limited to the United States CAN-SPAM Act, Canadian Anti-Spam Legislation, or any other applicable law or legislation relating to the sending of electronic messages, collection and use of electronic data, or data privacy.
Feedback
Feedback. In the event you elect, in connection with any of the Products, to communicate to us suggestions for improvements to the Products (collectively, “Feedback”), we shall own all right, title, and interest in and to the Feedback and we shall be entitled to use the Feedback without restriction, even if you have indicated such Feedback as confidential or restricted as to our rights or use. You hereby irrevocably assign all right, title and interest in and to the Feedback to us and waive any and all moral rights you may have in the Feedback, and agree to provide us such assistance as we may require to document, perfect, and maintain our rights in and title to the Feedback. You agree that: (a) your Feedback does not contain confidential or proprietary information; (b) 10xApps is not under any obligation of confidentiality, express or implied, with respect to the Feedback; (c) 10xApps shall be entitled to use or disclose (or choose not to use or disclose) such Feedback for any purpose, in any way, in any media worldwide; and (d) you are not entitled to any compensation or reimbursement of any kind from 10xApps under any circumstances.
Suspension
Generally. We may suspend your right or any End User’s right to access your Account or use any portion of the Products immediately upon notice to you if we determine: (a) your or an End User’s use of or registration for the Products (i) poses a security risk to the Products or any third party, (ii) it may adversely impact the Products or the systems or the User Submitted Content or any other 10xApps customer, (iii) may subject us or any third party to liability, or (iv) it may be fraudulent; (b) you are, or any End User is, in breach of this Agreement or applicable law; (c) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
Effect of Suspension. If we suspend your right to access your Account or use any portion of the Products: (a) you will not be entitled to any credit of fees paid for any period of suspension; and (b) you remain responsible for all fees and charges you may have incurred through the date of suspension, except as specified elsewhere in this Agreement. Our right to suspend your Account or use of the Products is in addition to, and without prejudice to, our right to terminate this Agreement pursuant to Section 13 and any other remedies available at law.
Term and Termination
Term. This Agreement is in effect from the earliest of the dates you access, use, or download any Product, or create an Account, until terminated by either you or 10xApps (the “Term”).
Termination by You. You may terminate this Agreement at any time by notifying info@tenxecom.com. Your termination notice will be effective when we receive it.
Termination by 10xApps for Convenience. 10xApps may terminate this Agreement at its sole discretion, at any time, effective immediately upon notice to you, whether for convenience or in the event you breach this Agreement.
Effect of Termination. Upon termination of this Agreement you acknowledge that all of your rights under this Agreement will immediately terminate and 10xApps will delete your Account. You will be responsible for any outstanding fees, charges and applicable Taxes (as previously defined) incurred by you and owing to us from the time notice is given. You are also responsible for removing any 10xApps functionality from your website, app, or platform, and you remain responsible for any acts or omissions relating to the collection or disclosure of shopper information to 10xApps after the termination of this Agreement and/or your Account resulting from a failure to remove such 10xApps functionality.
Surviving Obligations. All provisions of this Agreement which by their nature should survive expiration or termination shall survive the expiration or termination of this Agreement, including, without limitation, 1, 2, 4, 5, 10, 13, 14, and 16. Termination of your access to the Account and use of the Products shall not relieve you of any obligations arising or accruing prior to such expiration or termination or limit any liability which you otherwise may have to 10xApps, including without limitation any indemnification obligations hereunder.
DISCLAIMERS
“AS IS” BASIS. THE PRODUCTS ARE PROVIDED TO YOU “AS IS.” ANY USE OF THE PRODUCTS OR RELIANCE ON CALCULATED DATA OR OTHER OUTPUT OF THE PRODUCTS IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 10XAPPS DISCLAIMS ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, AVAILABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. 10XAPPS DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT THE PRODUCTS WILL BE FREE FROM LOSS, DESTRUCTION, SERVICE LOSS, UNAVAILABILITY, DAMAGE, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND 10XAPPS DISCLAIMS ANY LIABILITY RELATING THERETO. 10XAPPS DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT USE OR RESULTS OF THE USE OF THE PRODUCTS AND SERVICES ARE OR WILL BE ACCURATE, RELIABLE, CURRENT, UNINTERRUPTED, OR WITHOUT ERRORS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY 10XAPPS OR OTHERS WILL CREATE A WARRANTY AND NEITHER YOU NOR ANY THIRD-PARTY MAY RELY ON ANY SUCH INFORMATION OR ADVICE.
THIRD-PARTY CONTENT. 10XAPPS IS NOT RESPONSIBLE AND DOES NOT ASSUME ANY LIABILITY FOR THIRD-PARTY CONTENT.
LIMITATION OF LIABILITY. IN NO EVENT WILL 10XAPPS BE LIABLE TO YOU FOR INDIRECT, DIRECT, GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, AGGRAVATED, OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, LOSS OF PROFITS, BUSINESS INTERRUPTION, CORRUPTION OF FILES, LOSS OF BUSINESS INFORMATION OR ANY OTHER PECUNIARY LOSS) EVEN IF 10XAPPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, 10XAPPS WILL NOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE PRODUCTS, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO YOUR ACCOUNT OR THE PRODUCTS, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE PRODUCTS, OR (III) ANY SERVICE SUSPENSION, UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE PRODUCTS FOR ANY REASON, INCLUDING BUT NOT LIMITED TO AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO ACCESS OR STORE ANY OF YOUR USER-SUBMITTED CONTENT OR OTHER CONTENT OR DATA.
TOTAL LIABILITY. IN ANY CASE, OUR TOTAL LIABILITY TO YOU UNDER ANY PROVISION OF THIS AGREEMENT IS LIMITED. 10XAPPS’S LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAID 10XAPPS UNDER THIS AGREEMENT FOR THE PRODUCT THAT GAVE RISE TO THE CLAIM DURING THE TWO (2) MONTHS PRECEDING THE CLAIM.
APPLICATION OF LIMITATIONS. THE LIMITATIONS OF LIABILITY AND DAMAGES EXCLUSIONS OF THIS AGREEMENT APPLY TO ALL CAUSES OF ACTION AND REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), WARRANTY, PRODUCT LIABILITY, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY.
INDEMNITY. YOU WILL, IN ACCORDANCE WITH SECTION 14.7, INDEMNIFY, DEFEND AND HOLD HARMLESS 10XAPPS, AND ALL OF THEIR RESPECTIVE PRESENT AND FORMER OFFICERS, MEMBERS, SHAREHOLDERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, HEIRS AND ASSIGNEES, FROM AND AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS, COSTS, DAMAGES, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES, DISBURSEMENTS, AND ADMINISTRATIVE OR COURT COSTS) (COLLECTIVELY, “LOSSES”) PAID OR INCURRED IN CONNECTION WITH CLAIMS BY ANY THIRD PARTY RESULTING FROM (A) YOUR BREACH OF THIS AGREEMENT, (B) YOUR BREACH OF SECTION 10, OR ANY APPLICABLE PRIVACY AND/OR DATA PROTECTION LAW, (C) ANY INFRINGEMENT BY YOU OF THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY; OR (D) A CLAIM, LIABILITY, OR OBLIGATION CLAIMED PURSUANT TO SECTION 15.6; OR (E) YOUR USE OR MISUSE OF THE ACCOUNT OR THE PRODUCTS; OR (F) OTHER ACT OR OMISSION CONSTITUTING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
Indemnifying Party Rights and Obligations. You shall promptly inform 10xApps of any suit or proceeding filed or that you anticipate being filed against you and/or 10xApps for which 10xApps is entitled to indemnification hereunder. You may direct the defense and settlement of any such claim, with counsel of your choosing, and will provide the 10xApps, at your expense, with information and assistance reasonably necessary for the defense and settlement of the claim. 10xApps shall have the right, but not the obligation, at its sole expense to participate in (but not to control) the defense of any such suit or proceeding. You shall not settle any such action without the written consent of 10xApps (which consent will not be unreasonably withheld or delayed).
General
Your Equipment. You shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access the Account or otherwise use the Products, including, without limitation, modems, hardware, software, and long-distance or local telephone service.
Third-Party Service Providers. You acknowledge that 10xApps uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage and related technology required to run the Services.
Export Compliance and Restrictions. You will, in connection with your use of the Products, comply with all applicable export, import and re-export control laws and regulations. You shall not provide any Customer Collected Data or other information that is subject to any applicable export, import and re-export control laws and regulations without obtaining prior written consent from 10xApps.
Governing Law. The rights, duties and obligations of the parties to this Agreement and the validity, interpretation, performance and legal effect of this Agreement shall be governed and determined in accordance with the applicable laws in Colorado, United States, excluding that body of law applicable to choice or conflict of law and the United Nations Convention on Contracts for the International Sales of Goods and all legislation implementing such convention. Any claims or disputes arising out of this Agreement or any Confidential Information disclosed pursuant to this Agreement may only be brought in a court of competent jurisdiction in Denver, United States, and the parties irrevocably and unconditionally consent to the jurisdiction of any such court and irrevocably and unconditionally waive (a) any defense of an inconvenient forum to the maintenance of any such claim or action; (b) any objection to venue with respect to any such action or claim on account of the place of residence or domicile of any party thereto; and (c) to the extent permitted by law, the right to a jury trial in connection with any action or claim arising out of this Agreement or the disclosed Confidential Information.
Equitable Remedies. The rights granted and obligations made under this Agreement are of a unique and irreplaceable nature, the loss of which will irreparably harm 10xApps and which cannot be replaced or compensated for by monetary damages alone. Accordingly, 10xApps will be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Services or any other materials issued in connection therewith or other content or material used or accessed through the Service.
No Partnership. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind 10xApps. You shall indemnify 10xApps, in accordance with Section 14.6, for any Losses resulting from any claim of agency, partnership, joint venture, or employment by any of your employees, contractors, agents, or other representative based on any alleged relationship resulting from this Agreement.
Notices. 10xApps may send notices to you with respect to your use of the Products or otherwise under this Agreement by sending an email message to the email address listed in your Account Information. You agree that we may provide notice to you through such means. You may provide notice to 10xApps under this Agreement by sending an email message to info@tenxecom.com. Unless otherwise stated, such notices will become effective immediately upon delivery
No Waiver. No failure or delay by 10xApps in enforcing any right or exercising will be deemed a waiver of any right or remedy.
Assignment. You may not assign this Agreement or any of your obligations hereunder to any person without the prior written consent of 10xApps. Any such assignment or transfer in violation of this Section will be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
No Third-Party Beneficiaries. This Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.
Severability. If any provision of this Agreement, or portion thereof, is unenforceable or invalid for any reason whatever, the parties agree that modification of such provision or portion thereof shall be permitted, and such modification shall preserve as much of the provision or portion thereof as required to render such provision or portion thereof enforceable or valid, as the case may be. The parties further agree that such unenforceability or invalidity shall not affect the enforceability or validity of the remaining portions of the provision or provisions of this Agreement and such unenforceable or invalid provision or portion thereof shall be severable from the remainder of this Agreement.
Entire Agreement. This Agreement, including any portions explicitly incorporated by reference and/or made a part of this Agreement by reference, such as but not limited to the Privacy Policy, represents the complete and exclusive statement of the agreement between you and 10xApps and supersedes any proposal or other prior written or oral agreement and any communications between you and 10xApps relating to the subject matter of this Agreement, unless and except you and 10xApps agree explicitly in writing in one or more other addendums to this Agreement.
ACKNOWLEDGEMENT. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND WILL BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER ACKNOWLEDGE THAT THIS AGREEMENT REPRESENTS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US AND THAT IT SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, SUBJECT TO SECTION 15.12.