Terms and Conditions

(a month-to-month agreement)

This HOSTING AND APPLICATION SERVICE PROVIDER AGREEMENT (the “Agreement”) is made and entered into this day, the date of on-line acceptance and payment, hereinafter known as (the “Effective Date”) by and between Xennsoft LLC (Company) and You and/or the Company entered by You, who is signing up for and activating this service (the “Licensee”). Company and Licensee may be referred to individually as a “Party” and collectively as the “Parties.” Distributor’s, Consultants, Associate, Brand Partners, Partners, Representatives, Independent Representatives, Independent Agents or any other name used to describe Licensees’ independent sales and marketing force shall be referred to in this Agreement as “Licensed Users”.

Agreement

In consideration for the promises and covenants hereinafter set forth, including, without limitation, Licensee’s payment of certain fees and other consideration to Company, and Company’s providing to Licensee a license to a certain website, certain software, certain web-based hosting services, and certain additional support services, and for other good and valuable consideration, the receipt and sufficiency of which as set forth herein is hereby acknowledged, the Parties agree as follows:

1. Grant of Software License.
   1. Software License. Subject to the terms and conditions of this Agreement and subject to termination as provided herein, Company agrees to grant to Licensee, and Licensee agrees to accept, a limited, personal, non-transferable, nonexclusive license authorizing Licensee, and certain Licensed Users of Licensee who enter into separate user agreements with Company permitting the same to the extent provided in said separate user agreement. (a) to use that certain website and other such delivery technologies, such as Mobile Applications, provided by Company in strict accordance with the terms and conditions of this Agreement and as permitted through instructions on said website and other such delivery technologies, (hereinafter the “Website”); and (b) to execute and run the computer programs, or as otherwise determined by Company from time to time, solely in object code form, to execute and run all revisions, updates, enhancements, patches, fixes and new modules or add-ons, and to use the accompanying manuals, literature and other materials as determined by Company from time to time (all of the foregoing in this subsection (b) are hereinafter sometimes collectively referred to as the “Software”) (all rights described in this subsection 1.1 are hereinafter sometimes collectively referred to as the “Licensed Rights”). No other rights are granted to Licensee or Licensed Users with respect to the Website, Software or Licensed Rights except as expressly provided otherwise in this Agreement provided, that the Licensed Rights include the right of Licensee and Licensed Users to reasonably operate their business as contemplated.
   2. License Limitations. All use of the Website and Software by Licensee must be within the scope of the Licensed Rights. All of the Licensed Rights shall be exercised in conformity to Company’s requirements, procedures and policies as provided by Company to Licensee from time to time. Company reserves the right to modify all such requirements, procedures and policies from time to time, in its sole discretion with reasonable prior written notice to the Licensee and Licensed Users. Company shall not unreasonably modify the requirements, procedures and policies to the detriment of Licensee. All use of the Website, Software and Licensed Rights by Licensee must be in the furtherance of Licensee’s legitimate business purposes as a multi-level marketing company and/or as a company operating or conducting business through distributors, dealers or agents. All other use of the Website, Software and Licensed Rights by Licensee, directly or indirectly, in hardcopy, electronic, or any other form, format, medium or means, is prohibited.
   3. Title and Confidentiality as to Software. With the exception of the trademarks and service marks of Licensee which may be displayed on or become part of the Website through customization and which remain the sole and exclusive property of Licensee, title and full ownership rights to the Website and Software licensed under this Agreement, including, without limitation, all elements thereof, and all copyrights, patents, patent rights, trademarks, service marks, trade names and other intellectual property rights therein and thereto, and any copies of the same, nationally and internationally, remain with Company. It is agreed that the Website and Software are the proprietary, confidential, trade secret property of Company, whether or not any portions thereof are or may be copyright registered, and Licensee shall take all reasonable steps necessary to protect the confidential nature of the Website and Software as it would take to protect its own confidential and trade secret information. Licensee further agrees that it shall not use, copy, remove, or make any disclosure of any or all such Website and/or Software (including methods or concepts utilized therein) to anyone, except to employees working for Licensee to whom such disclosure is necessary to the use for which rights are granted hereunder and then only to the extent reasonably necessary. Licensee shall appropriately notify all such employees to whom any such disclosure is to be made that such disclosure is made in confidence subject to the terms hereof and Licensee shall require them to keep such information in confidence and subject to the terms hereof. The obligations imposed by this subsection upon Licensee and its employees shall survive and continue after any termination of rights under this Agreement. It shall not be a breach of this Agreement if Licensee is required to disclose or make the Website or Software available to a third party or to a court if the Website or Software are subpoenaed or otherwise ordered by an administrative agency or court of competent jurisdiction to be produced or disclosed.
   4. Title and Confidentiality as to Data. All information, data and documents relating to Licensee and Licensed Users, or the business of Licensee or Licensed Users, downloaded, stored, posted or communicated on Company’s Website, the Software or system, or stored pursuant to the Hosting Services by or on behalf of Licensee or Licensed Users (the “Data”), including all copies of such Data, shall be the sole and exclusive property of Licensee (but shall be subject to Company’s rights pursuant to Section 8.1 and 8.4 below). It is further agreed that the Data is the proprietary, confidential, trade secret property of Licensee, and Company shall take reasonable steps necessary to protect the confidential nature of the Data in its possession as it would take to protect its own confidential and trade secret information. Company further agrees that it shall not make any disclosure of any or all such Data to third parties, except to Company employees and others to whom such disclosure is necessary to the use for which rights are granted hereunder and then only to the extent reasonably necessary, and Company shall not use the Data for any purpose other than that contemplated by this Agreement. Notwithstanding anything in this Agreement to the contrary, it is agreed that Company may display and use the Data as both parties will agree to be deemed appropriate for purposes of promoting the Website, Software, Licensed Rights and related goods and services to others, including, without limitation, to other distributors, dealers and agents of Licensee. In addition, it shall not be a breach of this Agreement if Company is required to disclose or make the Data available to a third party or to a court if the Data is subpoenaed through a court of competent jurisdiction or otherwise ordered by an administrative agency or court of competent jurisdiction to be produced or disclosed. Company shall not be responsible for any and all Data downloaded, stored, posted or communicated by Licensee or Licensed Users on the Website, the Software or system by or on behalf of Licensee or Licensed Users, including, without limitation, its legality, reliability, appropriateness, originality and copyrights, and Licensee hereby represents and warrants that it does not infringe the rights of any third party.
   5. Use of Software: Licensee shall restrict Licensee’s employees and Licensed Users that have access to the Website and Software pursuant to and consistent with the terms and conditions of this Agreement. Licensee, and Licensed Users of Licensee to the extent provided in their separate user agreements with Company, may access the Website, and access, execute and run the Software, via the Internet, subject to the restrictions and the other terms and conditions of this Agreement.
   6. Limitations on Use of Software: Licensee agrees that neither Licensee, nor any Licensed User, may:
      1. Rent, lease, license, sublicense, assign, sell, loan, exchange, encumber, assign or otherwise transfer the Website, Software or Licensed Rights, in whole or in part, except as expressly permitted by this Agreement other than in connection with the sale of all or substantially all of the assets or equity interests of Licensee.
      2. Inspect, disassemble, decompile, reverse engineer, reverse assemble, reverse compile, translate or in any way attempt to determine the internal methods of the Software;
      3. Modify or alter the Website or Software or merge either into any other product without the express written consent of an authorized officer of Company;
      4. Reproduce, copy, save, download, publicly display, publicly perform, cut and paste, compile from, collect from, prepare a directory from, modify, adapt, edit, prepare derivative works based upon, publish, transmit or distribute the Website or Software, or any part of them, in any form or by any means except as expressly permitted in this Agreement.
      5. Sell or re-sell any service, application, hosting, information, software, service, including Signature Services™ provided by Company or from Third-Party providers whose services are provided through Company (referred to as Service), unless otherwise agreed upon by Company at its sole discretion, at which time, a written agreement may be entered into by both parties approving the details and costs/profits split, if any, associated to that specific service.
   7. Warranty. Company warrants to Licensee that: (i) the Software, to the best of Company’s knowledge, does not infringe any intellectual property rights of any third party; and (ii) for the term of this Agreement, including any renewal term(s), the Software shall operate in substantial conformity to the Software specifications as outlined on Xennsoft.com at the date of Licensees enrollment. If an error or a defect in the Software in violation of the warranty set forth in the preceding sentence becomes apparent within the warranty period noted therein, Licensee shall promptly notify Company, in writing via e-mail, fax, or overnight delivery, describing the error or defect. Upon confirming the error or defect, Company shall, at a mutually agreed timeline, repair or replace the item or refund the price paid for the defective item. If any existing feature becomes non-operational after the warranty period but while this Agreement is in effect, then Company shall utilize reasonable efforts to attempt to repair or replace said feature without cost to Licensee. Company shall use commercially reasonable efforts to eliminate or repair errors or viruses in the Software. The warranty does not cover Software modified by anyone other than Company, nor problems with, or caused by, computer hardware or non-Company software. This limited warranty is void if failure of the Software has resulted from accident, abuse or misapplication caused by anyone other than Company. No other warranties are provided by Company.
   8. Warranty Disclaimers. Except as otherwise provided herein, Licensee acknowledges and agrees that it accepts the Website, Software and Licensed Rights in “as is” condition and on an “as available” basis, and that Company offers no representations or warranties regarding the quality, nature, accuracy, truth, completeness, operation, functions, performance, usefulness, compatibility, obsolescence, defects, data, data storage, data integrity or use of the Website, Software or Licensed Rights, or any part thereof, or any information, Data or documents posted, added, contained or received thereon or there from, except as expressly provided in this Agreement. Licensee shall bear all risk of loss with respect to the rights licensed to it under this Agreement. Company does not warrant that the Software, Website, Licensed Rights, or any goods or services purchased from or relating to the same, shall meet Licensee’s requirements other than those specified on this web site or as may be outlined in an Addendum, or that the operation of the same shall be uninterrupted or error free. Company does not warrant any information, Data, the Website, the Software, or other material is free from viruses or other harmful components. Company shall use commercially reasonable efforts to eliminate or repair viruses or harmful components in a timely manner but shall not be responsible for any third party software, products or services used by Licensee or Licensed Users, whether or not Company recommended them or assisted in their evaluation, selection or supervision. The failure of third party software, products or services to perform or meet Licensee’s requirements or needs shall not affect Licensee’s obligations to Company under this Agreement, including Licensee’s payment obligations. Company shall not be required to offer uniform licensed rights to Licensee, Licensed Users, other licensees and others.
   9. Further Warranty Disclaimers. Except as specifically stated in the warranty section (section 1.7, above), company disclaims any and all warranties, whether express or implied, with respect to the website, the software, the licensed rights, other rights granted under this agreement, the suitability of information or computations contained on or received through the website, or any services or goods received through the website, including, without limitation, any and all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Company does not warrant that the contents or any information or computation received through the website are accurate, reliable or correct; that the website will be available at any particular time or location; that any defects or errors will be corrected; or that the contents or any information received through the website are free of viruses or other harmful components. Licensee’s and licensed users’ use of the website is solely at their risk. Licensee and licensed users agree that they have relied on no warranties, representations or statements other than in this agreement. Because some jurisdictions do not permit the exclusion of certain warranties, these exclusions may not apply to licensee to the extent so mandated by law but shall apply to the maximum extent permitted by law in all events.
   10. Limitation of Liability. Company’s cumulative liability to licensee or any other party for any loss resulting from any claims, demands or actions arising from or relating to the software, website, licensed rights or this agreement shall not exceed the fees paid by licensee to company for the use of the software, website and licensed rights for the preceding twelve month period. In no event shall company be liable, whether through judicial action, class action, arbitration or any other means, for any direct, indirect, punitive, incidental, consequential, special or exemplary damages or lost profits, including, but not limited to, loss of anticipated profits, revenue or savings, business interruption or loss of business information, that relate to or arise from the use of or inability to use the website, the software, content or the licensed rights, the information or computations contained on or received through use of the website, any services or goods purchased or received through the website, or this agreement, whether the alleged liability is based on contract, tort, negligence, strict liability, content, or any other basis, even if company or its agent have been advised of the possibility of such damages. Because some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, company’s liability in such jurisdictions shall be limited to the maximum extent permitted by law of the jurisdiction in question.
2. Hosting Services and Other Services and Limitations.
   1. Hosting Services. Under the standard terms of this Agreement, Company shall host its applicable Software on its own hardware or the hardware of a third party hosting services company (the “Hosting Services”). The Hosting Services are described in more detail withing this website. There are also hosting, license, and service fees described at Xennsoft.com, that describe the obligated fees for each billable Licensed User (“Billable Licensed Distributor”) and preferred customer (“Preferred Customer”). An Billable Licensed User is defined as any Licensed User currently maintained in or through the WorldVu® and Team Office® Application and Database, the WorldVu® and Team Office® application, or any other WorldVu® and Team Office® application, who has made a purchase from or through Licensee within the 30 days prior to the last day of the billing period. Notwithstanding the above definition of Billable Licensed Distributor, a Retail and Preferred Customer is more specifically defined as any Licensed User who is a non-distributor currently maintained in or through the WorldVu® and Team Office® Application and Database, the WorldVu® and Team Office® application, or any other WorldVu® and Team Office® application, who is enrolled in an automatic product shipment program and has made a purchase (retail, wholesale, via autoship or otherwise) or any purchase from or through Licensee wherein said purchase is paid for by the Licensed User directly or through any other means, such as by credit, earned credit or commissions, within the 30 days prior to the last day of the billing period.
      1. Internet Access. Licensee is solely responsible for providing, maintaining and paying for its own local connection(s) to the World Wide Web sufficient to allow Licensee to access the Website and Software.
      2. Access Rights. Company shall provide or arrange for Licensee to obtain a login/password to gain access to the Website and Software. Licensee shall: (i) be responsible for the security and/or use of said login/password; (ii) not disclose the login/password or related methods to any person or entity that is not an employee or agent (“Agent” is anyone Licensee assigns or delegates access to) of Licensee with a legitimate need to know consistent with this Agreement; (iii) not permit any other person or entity to use the login/password issued/created except as provided in this Agreement; and (iv) use the Website and Software consistent with this Agreement.
   2. Backup and Archiving of Data. Company shall perform a backup of the Data on a daily basis and archive the Data in an off-site location as determined by Company. Company shall also perform a back-up on a weekly basis and the media containing the backup shall be archived in the aforementioned off-site location. Backups shall be in the format and/or in an industry standard as determined by Company. Company may retain or otherwise contract with third party companies to provide any or all of the backup services. In the event of a third party providing any or all of the backup services, Company will ensure as reasonably possible, that Licensee’s backup data is secured and cannot be read, accessed or used in any way other than the intended purpose by any third party.
   3. Backup and Archiving the Software. Company shall create a backup of any Software developed specifically for Licensee, including any updates, patches, and fixes or other modifications, and shall maintain such backup on an offsite location.
   4. Modifications to Website and Software. Company, in its sole discretion, may modify, improve, adapt and/or replace any and all or any part or module of the Website and Software at any time, such that, within reason, the modification(s) does not substantially remove a majority of Licensee’s functionality of the Software. If there is planned downtime in the system by Company that will exceed one (1) hour, Company shall, when reasonably possible, provide notice to Licensee regarding the same at least twenty four (24) hours in advance unless the notice period is waived by Licensee.
   5. Conveying Information. Company reserves the right, exercisable in its sole discretion, to convey content to any and all users or proposed users of the Website and/or Software, including, without limitation, Licensee, Licensed Users, and employees, agents, customers, distributors, potential distributors and others associated with Licensee or Licensed Users, via electronic or other means, containing information about services, products, features and/or options supported by the Website and Software, and/or any other information or material it deems necessary to operate and/or promote the Website and/or Software. Information will be limited to the intended use and will not in any way include any information the Licensee has explicitly marked or labeled as proprietary and/or confidential.
   6. Compatibility with Other Systems and Software. Company and Licensee recognize that Licensee may utilize the software, hardware and systems of third party vendors. Company does not guarantee or assure that the Website and Software shall work with any third party vendor software, hardware or systems. Upon written request from Licensee, Company, in its discretion, may work with Licensee, at Licensee’s expense, to modify and/or build components to enable such interaction. Charges for such services shall be based upon Company’s normal hourly rates as set forth at Xennsoft.com hereto, as amended by Company from time to time, unless it has been explicitly communicated and agreed upon by both Parties, and is part of deliverable(s) of Company to the Licensee as identified in this Agreement.
   7. Electronic Communications and Security. Unless otherwise notified pursuant to the terms of this Agreement, Licensee is responsible for all electronic communications, whether relating to Licensee or Licensed Users, including account registration and other information of Licensee and Licensed Users such as e-mail, files and other data (“Electronic Communications”), entered through or interacting with the Website or Software. Company shall assume that all Electronic Communications it receives identifying or indicating Licensee or Licensed Users are authorized and sent by Licensee or Licensed Users as the case may be, and, where appropriate in its discretion, shall act in full reliance thereon. Licensee agrees to notify Company immediately if Licensee becomes aware of any unauthorized use of the Website, Software or Electronic Communications. The security of Electronic Communications shall be maintained by Licensee through the use of passwords and other methods, which Company may, in its discretion, employ, or which Company may, in its discretion, suggest or reasonably require that Licensee and/or Licensed Users employ. If Licensee or Licensed Users are issued or otherwise receive a username and/or password, they shall use best efforts to prevent access to the Website and Software through said username and password by others, including, without limitation, keeping said information strictly confidential, notifying Company immediately if they discover loss or access to such information by others, and by using a username and password not easily guessed by others. Licensee acknowledges and agrees, however, that Company cannot and does not represent, warrant, guarantee or assure that the Website, Software and/or Electronic Communications shall be protected against third party interference, interception, hacking or other actions, damage or loss but will employ reasonable efforts to ensure that Licensee’s data is reasonably safeguarded and protected by said actions identified above.
   8. General Practices and Additional Guidelines. Licensee acknowledges that Company may establish and post general practices and requirements concerning use of the Website and Software subsequent to the signing of this Agreement, as amended from time to time. Licensee further acknowledges and agrees that Company has the right to change these general practices and requirements at any time, with the prior written notice provided to Licensee. Company shall not make changes that are intended to harm the business of Licensee or that are unreasonable. In addition, when using the Website and Software, Licensee agrees to comply with, and be bound by, all guidelines and rules applicable to the Website and Software, which Company may post or otherwise communicate to Licensee from time to time. Continued use of the Website and Software after the posting or receipt of notice of such changes constitutes Licensee’s acceptance of said terms and conditions and its agreement to be bound thereby. Licensee shall periodically locate and review such guidelines and rules and all related changes.
   9. Prohibited Activities. Neither Licensee, its Licensed Users, nor any employees, officers, owners, agents or customers of any of the foregoing, may engage in any of the following:
      1. Upload, post, e-mail, transmit or otherwise make available or use any content that is unlawful, harmful, threatening, abusive, harassing, degrading, intimidating, false, fraudulent, torturous, defamatory, vulgar, obscene, sexually explicit, pornographic, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable, or in violation of the Website’s rules or policies;
      2. Upload, post, e-mail, transmit or otherwise make available any content that is, or may reasonably be considered to be, harmful to minors (defined as individuals under the age of 18), or otherwise solicit or collect information or attempt to induce physical contact with anyone 18 years of age or younger without appropriate legal prior verifiable express parental consent;
      3. Impersonate any person or entity, including, but not limited to, Company, a Company official, forum leader, guide or host, or falsely state or otherwise misrepresent Licensee’s affiliation with a person or entity;
      4. Forge or falsify headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through or with the assistance of the Website or Software;
      5. Upload, post, e-mail, transmit or otherwise make available any content that Licensee does not have a right to make available under any law or under any contractual or fiduciary relationship (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
      6. Upload, post, e-mail, transmit, or otherwise make available any content that infringes any patent, patent right, trademark, service mark, trade name, trade secret, copyright, privacy right, moral right, right of publicity, or other proprietary rights of Company, Licensee, Licensed Users or others, whether identified in this document or otherwise;
      7. Upload, post, e-mail, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” bulk e-mail, junk e-mail, chain letters, or any other form of solicitation, except in those areas, such as shopping carts and Support Services, that are designated for and legally permit such;
      8. Upload, post, e-mail, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment, or to obtain unauthorized access to or to obtain unauthorized data or information, or to upload, introduce or transmit in, to or through the Website or Software, any viruses, worms, trap door, back doors, timers, clocks, counters or other limiting, harmful or destructive routines, instructions, files or designs;
      9. Conduct operations in a manner that negatively affects other users’ ability to engage in real time exchanges;
      10. Sale or attempt to re-sale any service, application, hosting, information, software, service, including Signature Services™ provided by Company or from Third-Party providers whose services are provided through Company, unless otherwise agreed upon by Company at its sole discretion as outlined in Section 6;
      11. Interfere with or disrupt the Website, Software and/or servers or networks connected to the Website and/or Software, or disobey any requirements, procedures, policies, or regulations of networks connected to the Website or Software or found in this Agreement;
      12. Violate any local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange, or the NASDAQ, and any regulations having the force of law;
      13. “Stalk” or otherwise harass other users;
      14. Use collected or stored personal data on users for negative or harmful purposes; or
      15. Perform any act, access the Website, use the Software, or upload, post, e-mail, transmit or otherwise make available any information or documentation which violates the law of any country, state, county, city, province, municipality, territory, or other governmental body in any jurisdiction; and
      16. Directly or indirectly, provide, disclose, divulge, make available to, or permit the use of the Website or Software by any person other than Licensee’s employee administrators and Licensed Users without Company’s prior written consent.
   10. International Users. Licensee agrees that accessing the Website, and services, goods or content available on the Website, except as expressly allowed through instructions and truthful statements by Licensee in regard to use of the Website, from places outside the U.S., or where their contents are illegal, is prohibited. Licensee further agrees that none of the information on the Website may be downloaded, exported or re-exported into Libya, Iraq, North Korea, Cuba, the National Union for the Total Independence of Angola (UNITA), Iran, Syria, Sudan, Burma (Myanmar), Serbia, the Taliban, Sierra Leone, Liberia, designated Terrorists and international Narcotics Traffickers, Foreign Terrorist Organizations, and/or to designated foreign persons who have engaged in activities related to the proliferation of weapons of mass destruction or any other country with restrictions imposed by the U.S. Government. By using the Website, Licensee agrees and represents that Licensee is not a citizen of or a resident in any of these countries.
   11. Export. Licensee shall comply with all applicable export and import control laws and regulations in Licensee’s use of the Website, Software, and goods and services received through the Website or Software, and, in particular, Licensee shall not export or re-export anything on or received through the Website or Software in violation of local or foreign export laws and/or without all required U.S. and foreign government licenses.
   12. Government Use. If Licensee is a branch or agency of the U.S. Government, the following provision of this subsection applies. The Website, the Software, code, contents, services and accompanying documentation are comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and are provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 (JUN 1995) and 227.7202-3 (JUN 1995). Unpublished rights are reserved under the copyright laws of the United States.
   13. Third Party Sites. Licensee acknowledges and agrees that Licensee may be transferred to online merchants or other third party sites through links or frames from the Website. Licensee is cautioned to read such sites, terms and conditions and/or privacy policies before using such third party sites in order to be aware of the terms and conditions of Licensee’s use of such sites. Licensee further acknowledges and agrees that said sites may contain information or material that is illegal, unreasonable or that some people may find inappropriate or offensive. These other sites are not under the control of Company, are not monitored or reviewed by Company, and Company is not aware of the contents of such sites. Licensee acknowledges that Company is not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the contents or any transmissions received through such sites. The inclusion of such a link or frame does not imply endorsement of said site by Company and is provided for Licensee’s convenience. Licensee agrees that Company assumes no liability whatsoever from such third party sites and Licensee’s usage of them.
   14. Warranty Disclaimer for Hosting Services. Company makes no warranties or representations of any kind with respect to the hosting services. The hosting services are provided on an “as is” and “as available” basis without warranties of any kind, either express or implied, including but not limited to warranties of title, non-infringement, or implied warranties of merchantability or fitness for a particular purpose. No advice or information given by company or its employees, agents or contractors shall create a warranty. Company provides no warranty that the hosting services shall be uninterrupted. Under no circumstances shall company be liable for any direct, indirect, special, punitive, or consequential damages that result in any way from licensee’s (or any of the licensee’s employees, agents, contractors, independent distributors or Licensed users) use of or inability to use the hosting services, support services or other services, or any failure of performance. If licensee is dissatisfied with the hosting services or any of the terms, conditions, rules, policies, guidelines, or practices, as set forth in this agreement, licensee’s sole and exclusive remedy is to discontinue using the hosting services, support services and other services.
   15. Exclusivity. Licensee shall not promote, serve, engage, or support third party vendors’ services or systems that are competitive with the services or systems provided by Company hereunder, especially replicated website, communication or marketing systems or any third party or internally developed systems that are identified by Company as tools in its Team Office or within Xennsoft’s Signature Services™, used by Licensee or Licensee’s Users. However, the exclusivity set forth in the preceding sentence shall not apply in the following two circumstances: First, exception 1: Company does not make available or has not developed in its products and services offering a solution like or similar in nature to that of the 3rd Party vendor; or Second, exception 2, Licensee will inform Company of any 3rd party considerations and give Company a 30 day first right of refusal to offer like or similar products or services for Licensee’s consideration. If in fact Company refuses or cannot offer like systems or services, then Licensee can engage identified 3rd party systems and services. If Licensees proceeds to utilize 3rd Party vendors’ services, systems, replicated websites, or any internally developed system, then the Company, at its sole discretion, reserves the right to charge Licensee or 3rd Party vendor for Licensee’s or 3rd Party’s access to Company’s information (i.e. API calls) data, processes, services or procedures needed to support such request.
3. Support Services.
   1. Additional Services Provided by Company. Company may, in its discretion, provide Licensee with certain professional services, custom programming services or other support services needed or otherwise requested by Licensee where such services are not included within the scope of the standard Hosting Services (“Support Services”). Company will notify Licensee of the estimated fees for any Support Services based on the scope and nature of the services to be provided as determined by Company and Company shall obtain Licensee’s consent, prior to providing such services. Any such agreement shall be in writing and is hereby incorporated by reference into this Agreement. The rates, payment obligations, pricing policy, payment terms, methods, consequences of default and other aspects of Support Services shall be governed by this Agreement and an Addendum(s) (if applicable), except as determined otherwise by Company and Licensee. Company reserves the right to advertise its Support Services and other goods and services.
4. Confidential Information.
   1. Confidential Information Definition. The Parties may have access to information that is confidential and/or proprietary to one another through use of the Website, Software, Hosting Services or Support Services (collectively, the “Confidential Information”). Confidential Information shall mean any and all information, data, ideas, the Website, Software, software tools (in source code and object code forms), user interface designs, documentation (both printed and electronic), trade secrets, marketing information, marketing methods, Licensed User lists, independent distributor lists, customer lists, financial information, business strategies, and the terms and pricing under this Agreement, in any and all forms, formats and mediums, in writing, orally, electronically or through other means, whether identified as confidential or not, that arises from or relates to a Party, its business, business plans, procedures, finances, owners, officers, employees, agents or customers. Confidential Information shall not include information that: (i) is or becomes a part of the public domain through no act or omission of the other Party; (ii) was rightfully in the possession of the other Party or was known by its prior to its disclosure to the same; or (iii) is independently developed by the receiving Party without use of any Confidential Information of the other Party.
   2. Restrictions on Disclosure. Both Parties, including their respective owners, employees, and agents, agree to hold the other Party’s Confidential Information in confidence during the term or any renewal term of this Agreement and for two (2) years thereafter, except as otherwise provided by this Agreement such as where it provides for a longer period. Both Parties further agree, unless required by law or by court order, not to copy, remove, disclose, or make any Confidential Information of the other Party available in any form to any third party or to use it for any purpose other than the implementation of this Agreement, except as otherwise provided by this Agreement.
   3. Safety. Company shall utilize reasonable measures in an effort to protect Licensee’s Data from viruses, hackers or unauthorized entry. These measures may include firewalls, virus protection, spy ware or other measures as determined by Company. Company does not offer any assurances, representations or warranties as to the effectiveness of such measures or protections.
5. Third Party Vendors. In order to provide Signature Services as outlined in the Company website, Company shall from time-to-time source the services or technologies from third party vendors. If Licensee has not already established a business relationship with a third party vendor that the Company has integrated into the Software and displayed on the Website and if Licensee accepts the Signature Services using one of these third party vendors through Company then Licensee shall not directly conduct business with such third party vendor who provides services through Company to Licensee within two (2) years of the termination of this Agreement without the written consent of Company.
6. Payment Terms & Suspension of Services.
   1. EFT for Hosting Fees. All hosting fees payable pursuant to this Agreement shall be paid via automatic electronic funds transfer without any further action on the part of Licensee. Licensee hereby authorizes Company to initiate debit entries (“EFT Debits”) to Licensee’s bank account and financial institution set forth on the Auto-Draft Authorization Form provided herein. This authorization shall remain in full force and effect until Company has received written authorization from Licensee of its termination or change in such time and manner as to give Company a reasonable opportunity to act on it; provided, however, that Company shall not provide any hosting services to Licensee unless Licensee has authorized Company to make EFT Debits from a valid and active bank account pursuant to this Section.
   2. Other Fees and Charges. All other fees and/or charges payable hereunder shall be invoiced by Company at the time(s) and in the manner indicated at Xennsoft.com or as amended by Company from time to time or as both Parties may otherwise determine from time to time. All charges during a month shall be invoiced by Company to Licensee at the end of the month in which the applicable services are provided or as both Parties may otherwise determine from time to time. Payments for all fees and other amounts are due within ten (10) days of the date of each such invoice, unless otherwise indicated by this Agreement, addenda relating thereto or both Parties. Company may send invoices and collect directly from Licensed Users. Any services or goods offered by Company to Licensee for which payment terms are not clearly specified in this Agreement or the addenda thereto shall be paid for in the amount and pursuant to the terms and conditions specified by Company from time to time. All charges shall be stated in U.S. dollars and all payments must be made in U.S. dollars.
   3. Disputed Payment Policy. In the event of a dispute in payment for specific work-related invoicing, Licensee my dispute and delay the amount owed for specific work-related issue but may not hold or delay payment for any other services or work rendered by Company. All disputed work-related invoices, may either be paid to Company while the dispute is resolved or placed in escrow until said dispute has been resolved to the satisfaction of both Parties, at which time any amount owed must be paid immediately to the Company. All costs associated to escrowed payments shall be paid for by Licensee.
   4. Delinquent Payment Policy. In addition to any other remedies hereunder, any payments by Licensee not received by Company fifteen (15) days after the date of the invoice shall accrue an interest penalty at the rate of one and three-quarters percent (1.75%) per month, or the highest rate allowed by applicable law, whichever is lower. If Licensee is delinquent in its payments for any reason, with the exception of a disputed payment as outlined above, Company may, in its sole and absolute discretion: (a) modify the payment terms for any amounts due hereunder (including, without limitation, by requiring pre-payment in full before the provision of any certain piece or module of Software or performance of any services), (b) require other assurances to secure Licensee’s payment obligations hereunder, (c) hold all works, Data and functionality, and/or (d) hold any and all income due Licensee from commissions earned from the sale of any Company or Third-Party vendor services to Licensees Distributors (e) take any and all actions permitted by this Agreement (including, without limitation, the right to discontinue service pursuant to Section 6.4 below), at law and/or in equity. Licensee shall pay Company and be responsible for all collections and/or attorneys’ fees and costs resulting from nonpayment or late payment.
   5. Refusal, Interruption or Discontinuance of Services.
      1. In Event of Breach. Company may, in its sole discretion, refuse, discontinue, suspend or restrict the Licensed Rights, Hosting Services and/or Support Services, including by refusing, discontinuing, suspending or restricting Licensee’s and/or any and all Licensed Users’ access to the Data, Website, Software and/or other services, if Licensee or any Licensed Users materially breach any of the provisions of this Agreement or their separate user agreements with Company (including, without limitation, the failure to make any payment hereunder when due). Licensee shall have a 72 hour remedy period to fix, repair and/or restore any materially breached conditions as set forth in this Agreement (except that such remedy period shall not apply to the failure to make any payment hereunder when due).
      2. In Other Circumstances. Company also reserves the right to remove the Website and Software from its hardware, if in Company’s good faith reasonable determination; there is unlawful conduct, caused by the Licensee or Licensed User. To the extent commercially practical, Company shall provide three (3) business days’ notice to Licensee prior to the exercise by Company of this right. By way of example, reasons for such action may include, without limitation, one or more of the following: (i) Licensee’s system or software has been infected by a virus, worm or other malicious code; (ii) Licensee’s system or software has been compromised by unauthorized individuals or electronic devices; (iii) Licensee’s system or software is being used by Licensee, one or more Licensed Users, or one of Licensee’s employees, agents or contractors, for purposes of sending spam, mining data, sharing or exposing any Company technology or services or eliciting unacceptable material(s); or (iv) Licensee’s system, software or Data is causing shut-downs, failures or delays. If such action is taken, Company may, in its reasonable discretion: (i) attempt to notify Licensee of the same; (ii) attempt to verify thereafter that the problem has been fully resolved; and/or (iii) reinstate Licensee’s system and/or services once the problem has been fully resolved. In the event any of the events set forth in this subsection shall occur, Company may disclose Licensee’s identity and contact information, if requested by a government or law enforcement body or as a result of a subpoena or court order, and Company shall not be liable for damages or results thereof and Licensee agrees not to bring any action or claim against Company for such disclosure. Company, its employees, officers, managers and owners, and the Website, shall not be liable for any of the actions taken pursuant to this subsection, or for any failure, delay, damages or results, in taking any of the above-described actions.
   6. Applicable Taxes. Licensee shall pay all federal, state, county (and any similar governmental body imposed taxes) sales taxes and other taxes where applicable in addition to any use taxes or similar taxes imposed on its products or services including the licensing, delivery and/or use of the Website and Software under this Agreement. All taxes specified above are the sole responsibility of Licensee and shall be paid to the appropriate governmental agency regardless of whether said taxes were specified as due by Company. Company shall be responsible for taxes relating to the monthly licensing of services as outlined at Xennsoft.com. Company is not responsible for taxing or collecting taxes from Licensee or Licensee ’s customers, independent Distributors or Licensed Users, unless Company so agrees in writing and arrangements are made between Company and Licensee for Company to bill independent Distributors and/or Licensed Users directly for services rendered and goods sold.
   7. Pricing Policy. Company may change or increase the prices it charges Licensee for the Website, Software, Licensed Rights, Hosting Services, Support Services and/or other services or goods, not to exceed a five percent (5%) increase in any given period starting after the execution of this Agreement. This excludes the costs for additional and optional Packages, services, tools or fees. Any such change or increase shall be effective forty-five (45) days after providing written notice to Licensee of such change or increase. Licensee has the right to reject said increase, and Company, if so rejected by Licensee, has the right to discontinue the Website, Software, Licensed Rights, Hosting Services, Support Services and/or other services or goods for which the price was increased.
   8. Nature and Terms of Fees. In consideration for the grant of the Licensed Rights, and/or the Hosting Services or Support Services described herein, Licensee shall pay Company fees as set forth in the addenda to this Agreement. Any additional custom services not specifically detailed at Xennsoft.com or in an Addendum shall be invoiced at Company’s standard hourly programming rate as detailed at Xennsoft.com, or as otherwise agreed by both Parties via an accepted proposal or a Licensee approval in Company’s project tracking software. Licensee understands and acknowledges that due to the nature of custom programming, Company does not provide refunds, and, furthermore, if any such fees are partially or fully refunded, that shall be a one-time incident and does not relieve Licensee from payment of other fees due prior or invoiced after the said one-time refund. Such refunds also do not change the warranties or liabilities as identified in this Agreement.
   9. Indemnification by Licensee. Licensee agrees to indemnify, defend, and hold harmless Company, and Company’s employees, officers, managers, owners, agents, partners, vendors, contractors and affiliates, from any and all liability, penalties, losses, damages, costs, expenses, attorneys’ fees, causes of action or claims, that arise from or relate to the Website, Software, Licensed Rights, Hosting Services or Support Services, any information, services or goods from or relating to the Website, Software, partner or vendor software, any posting of commissioned or non-commissioned content, logos, marks and/or graphics, inappropriate, illegal or unauthorized materials, or any violation or breach of this Agreement or the separate user agreements with Licensed Users, whether by Licensee, Licensed Users, or any employees, officers, owners, agents, vendor, partner or contractors of any of the foregoing, without limitation or exception. Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Licensee, in which event Licensee shall cooperate with Company in asserting any available defenses and reimburse or otherwise pay Company’s legal expenses and costs.
   10. Estimates. Any quote and estimated hours for work associated with Licensee’s request (hereinafter an “Estimate”) is a courtesy estimate only and is given with the understanding and acceptance by Licensee that the estimated amount could change at any time based on further clarification, additions, changes or understanding by either Company or Licensee or third parties involved with each task. It is further understood and agreed that if the work needed to complete this task exceeds the original Estimate by 20% or less, Licensee agrees to the adjusted estimate without any further action required by Company. If the work needed to complete this task exceeds the Estimate by more than 20%, Company will attempt, but is not obligated, to notify Licensee of the revised Estimate and may stop work on the task to (1) inform the Licensee of the change in Estimate and obtain approval for the new Estimate, or (2) work with Licensee to re-evaluate any options needed to keep the task within the original Estimate, which may include the modification or exclusion of work, functionality or features originally discussed and related to the completion of the task. Tasks that take less time to complete than the original or modified Estimate will be billed at the rate(s) agreed to and listed within the Company Hosting and Application Service Provider Agreement. All work done, regardless of the Estimate, will be invoiced at actual amounts to the Licensee.
7. Term of Agreement.
   1. Initial Term. The initial term of this Agreement shall be monthly from the Effective Date of this Agreement, subject to termination as provided in this agreement.
   2. Renewal Term(s) & Regular Termination. Unless either party terminates this Agreement or any Addendum as set forth in Sections 8.1, 8.2 or 8.3, this Agreement shall automatically renew monthly from the Effective Date and shall continue to automatically renew each subsequent month thereafter unless terminated by either party as set forth herein.
8. Termination of Agreement.
   1. Termination Without Cause. Either party may terminate this Agreement by providing written notice at least thirty (30) days prior to the end of the initial term or any renewal term.
   2. Termination of Entire Agreement for Cause. Either Party may terminate this Agreement (the “Terminating Party”) upon the occurrence or continuance of any of the following events or conditions: (i) Terminating Party terminates this Agreement upon written notice due to the other Party’s material breach of any term or condition of this Agreement and failure to cure said breach within thirty (30) days after receipt of written notice of the same; (ii) Terminating Party terminates this Agreement upon written notice because the other Party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; (iii) Terminating Party terminates this Agreement upon written notice because the other Party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within fifteen (15) days after filing; (iv) Terminating Party terminates this Agreement upon written notice due to willful and malicious interference with the Terminating Party’s operations by the other Party; or (v) Terminating Party terminates this Agreement upon written notice due to the engagement by the other Party in any act of fraud, material misappropriation of funds or assets, theft, bribery or similar dishonest or illegal conduct based on a court ruling of the proceeding.
   3. Termination of Addendum. Either Party may terminate an Addendum to this Agreement if the other Party breaches any term or condition of that Addendum and fails to cure said breach within thirty (30) days after receipt of written notice of the same.
   4. Effect of Termination. Upon the effective date of termination of either an Addendum to this Agreement or the entire Agreement, the following shall occur:
      1. If Company has not already done so pursuant to Section 6.4 of this Agreement, then Company may immediately cease providing all Licensed Rights, Hosting Services, Support Services and other services to Licensee and all Licensed Users under such Addendum(s) or under the entire Agreement and deny access to the Website, Software and/or Data, as determined by Company, and Licensee may cease paying for each such service when Company ceases providing each such service;
      2. Any and all payment obligations of Licensee and all Licensed Users under such Addendum(s) and/or this Agreement shall cease upon termination of the agreement, and all of Licensee and all Licensed User payment obligations under such Addendum(s) or this Agreement through the date of termination shall immediately become due and payable.
      3. Licensee and all Licensed Users shall pay all fees, charges and expenses payable under this Agreement or any Addendum(s) for Licensed Rights, Hosting Services, Support Services or other services incurred through termination, and any and all other fees and charges determined in accordance with any applicable Addendum(s), as determined by Company.
      4. Each Party, including Company, on the one hand, and Licensee on the other hand, shall return within seven (7) business days all Confidential Information, including, without limitation, all Website materials and Software, of the other Party in its possession relating to the terminated Addendum or to the terminated entire Agreement, as the case may be, and shall not make or retain any copies of such Confidential Information, including Website materials and Software, except as required to comply with any applicable legal or accounting record keeping requirements, as determined by each such Party. Notwithstanding the foregoing, however, Company shall have no obligation to return any Confidential Information (including any Data) to Licensee and may use any data in any way Company deems necessary, if Licensee has not paid all amounts due here under in full, or after twelve months from termination, with the exception of content that is associated to a disputed work-related item as outlined in Section 6.3 above
      5. Unless otherwise provided in the appropriate Addendum(s), all licenses, rights and authorizations, including, without limitation, Licensed Rights, granted to Licensee and Licensed Users under this Agreement in connection with the terminated Addendum(s) or the terminated entire Agreement shall automatically terminate and be of no further force and effect, as determined by Company.
      6. Licensed Users may, in the discretion of Company, be offered new agreements with respect to some or all of the services and goods offered under this Agreement.
   5. Payment Upon Early Termination. Upon the termination of this Agreement for any reason except the end of the term or any renewal term, as set forth in Section 7, termination for Cause, Licensee shall be responsible for any amounts or fees that would have, but for the termination of this Agreement, been payable by Licensee to Company through the end of such term or renewal term.
9. Hosting and Transaction Fees for Licensed Team Office® Tools
   1. Hosting and Application Service Provider Agreement Extension. Any Addendum(s), if executed, is to serve as an extension to the Hosting and Application Service Provider Agreement (the “Agreement”) and is subject to all terms, conditions and provisions set forth in the Agreement. The definitions set forth in the Agreement shall also apply to any Addendum as applicable in each case. Pursuant to this Agreement, Licensee agrees to make all of the payments described below.
   2. Monthly Hosting, Service and Profit Sharing Fees. A hosting fee per month, as well as the Profit Sharing Fee, if applicable, (as accepted during this enrollment process) shall be charged to the Licensee for each calendar month of the Agreement, for the hosting and managing of the Software, licenses and supporting equipment.
      1. Hosting services include setup and management of a Production (live), BETA (for Pro Package and above) environments, SSL certificates, internal system monitoring, auto backup and storage, database administration, assigned Account Executive, non-accruing monthly support, Licensee user login to Company’s work order and trouble ticketing system and on-going core updates and enhancements to the Software, and other levels and quantity of features and services as specified by each individual Package.
      2. The Monthly hosting fee shall commence once the Licensee Accepts and pays for the Services.
   3. Maintenance Fee. A Monthly Maintenance fee may be charged to support an advanced level of services within Team Office® or for tools for Licensee’s Distributor members to manage their businesses. Price shall be subject to the Volume Based Pricing (VBP) schedule as shown on the Rates Page at https://xennsoft.com/rates or as listed on the Distributor Tools page at the Xennsoft.com website and attached herein via reference, and may also be determined by other Services as outlined herein, on the Company web site, or as hereinafter provided by Company.
   4. Distributor Tools Licensed User Fee: Licensee’s Distributor members shall be provided with a Team Office® (Back Office) or similarly named tool, which will include a number of features as outlined on the Distributor Tools page at Xennsoft.com. These tools shall be the default feature-set for all existing and new enrolling Distributors that use the Software. This means that upon enrollment, each new Licensee Distributor may be given access to the Team Office tools by default. Licensee shall pay Company a fee (as listed on the Xennsoft.com web site), per month (Billable Distributor) for each distributor that uses the Software. “Billable” is defined as any Distributor that places an order or uses the software or system in any way, within a 30 day period.
      1. Company reserves the right to upgrade, downgrade and/or offer any feature, service or package at it’s sole discretion.
   5. Team Office® (Distributor’s Back Office). Licensee agrees, that if it were not for the features, functionality and services provided within the Company’s Distributor Back Office (Team Office®), that Licensee’s Distributors would not have the tools necessary to operate their business. If Licensee wishes to resale the Company’s Distributor Back Office or Team Office® to Licensee’s Distributors, Licensee agrees to pay Company 50% of the amount (the Profit Share) charged by Licensee towards each Distributor’s Team Office® and shall pay said Profit Share to Company as outlined in this Agreement.
   6. Customer Orders. A transaction order fee shall be charged for all Retail and Preferred or Active Preferred Customer or similar customer type orders that are entered and processed through the Software.
   7. PCI order transaction fee(s). A per order/transaction fee shall be charged on each order that is processed and transacted by a credit card processing service through the use of the Software. This may include multiple fees for any order which includes split payments, if spit payments have been set up and/or supported by Company.
   8. Payment Gateways. Company offers a number of standard payment gateways in the Software. If Licensee requires a payment gateway other than those standard payment gateways listed in Company’s marketing material, then custom development shall be required that shall be subject to the Company’s Support Services fee schedule as outlined in the Agreement of listed at Xennsoft.com.
   9. Payment Terms and Methods. Fees for Hosting Services, Team Office® Tools and Support Services (as defined in the Agreement), including all those noted in the Agreement, on at Xennsoft.com, other than those that are one-time licensing, setup or training fees, that are paid by Licensee to Company on a monthly basis. All fees described in this Agreement shall commence on the day when the Software is activated, goes into production and/or begins to process orders, calculate commissions and becomes accessible by Licensee, employees, users, distributors and/or preferred customers. Company shall pay monthly charges via the payment method entered during enrollment or stored in the system for such purposes. Alternative payment methods are available as approved by the Company, and may bear additional costs and/or conditions. The specified withdrawal date is the date 1) the date enrolled or the date agreed upon by both Parties.
   10. Payment Default and Discontinuance of Service. Fees for Hosting Services, Licensed User Tools and Support Services, including all those noted in the Agreement, Addendum(s) (if applicable), along with any applicable late fee (s), are due in full and must be paid via electronic means on the day of the month enrolled or as agreed upon by both Parties or shall be paid via mail within fifteen (15) days of receipt of invoice. If payment is more than fifteen (15) days past the receipt of invoice, the services provided by this Agreement are subject to interruption. If Licensee’s service is interrupted for non-payment, along with full payment of any past due amount, Licensee shall also pay a restoration fee equal to or more than the price of the current Package price as listed on Xennsoft.oc/Packages, prior to restoration of Services. Unless the Agreement has been terminated as otherwise provided herein, Company agrees to restore core WorldVu® and Team Office® services provided directly and solely by Company within Twenty-Four (24) business hours after payment is received. Other services such as Signature Services or services provided through Company by third parties may take an undeterminable but reasonable amount of time to restore. This policy shall be strictly enforced. In the event of service interruption for nonpayment, Company may retain possession of any and all hardware, data and/or software it has supplied to or maintained for Licensee, its employees, agents, independent Distributors, and/or Licensed Users (before, during and after any actions to recover sums of money). In such a case, Licensee shall provide Company full and free access to the hardware and/or software for this purpose. Company shall retain all payments made hereunder, and recover charges Licensee owes as well as any damages Company may have sustained due to Licensee’s default. Title and property rights, including all intellectual property rights to services and goods, is and shall remain with Company whether or not they are embedded in any Website, program, software and/or hardware.
   11. Other 3rd Party Services. If Licensee has an existing partner or 3rd Party Service provider who performs services on Licensee’s behalf and wherein these services may need to be integrated into Company’s software and systems, custom programming fees shall apply for those partners’ technologies to be integrated into the Software.
   12. Licensee, or a representative of Licensee, has been shown, reviewed and understands the Company Feature Set as outlined within this site (at https://xennsoft.com/packages) and acknowledges and agrees that these features and their subsequent functionality support Licensee’s needs and that any additional work requested or required to satisfy Licensee will be billed and/or charged separately under the terms outlined within this Agreement and as posted on the Company Website.
10. Miscellaneous.
    1. Use of Third Parties. Any and all of Licensed Rights, Hosting Services, Support Services, services relating to Software or other services or goods to be provided by Company to Licensee, Licensed Users or others pursuant to this Agreement or any Addendum(s) thereto may be provided directly by Company, through Company employees, or through Company agents, contractors and third parties retained to provide the same.
    2. Entire Agreement. This Agreement constitutes the entire agreement and understanding of the Parties with respect to the subject matter hereof, and supersedes all prior agreements, arrangements, and understandings relating to the subject matter hereof. No representation, promise, inducement or statement of intention has been made by either of the Parties that is not embodied in this Agreement or in the documents referred to herein, and neither of the Parties shall be bound by or be liable for any alleged representation, promise, inducement or statement of intention not set forth or referred to herein.
    3. Non-solicitation of Employees. During the term of this Agreement and for a period of twelve (12) months thereafter, neither Party shall, without the prior written consent of the other, offer employment to, employ or attempt to employ, or enter into an agreement with, any person, agent, distributor or affiliate employed or associated then or within the preceding twelve (12) months by the other Party or its affiliates. Licensee shall not create a third party entity for the purpose of entering into an agreement with any employee, person or agent employed or associated then or within the preceding twelve (12) months by the Company or its affiliate.
    4. Severability. To the extent any provision of this Agreement shall be held, found or deemed to be unlawful or unenforceable, then any such provision or portion thereof shall be deemed modified to the extent necessary so that any such provision or portion thereof shall be legally enforceable to the fullest extent permitted by applicable law. Any court of competent jurisdiction shall, and the Parties hereto do hereby expressly authorize any court of competent jurisdiction to, enforce any such provision or portion thereof or to modify any such provision or portion thereof so that any such provision or portion thereof is enforced to the fullest extent permitted by applicable law.
    5. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the state of Utah, without regard to Utah conflicts of law provisions. It is understood that jurisdiction and venue for any action hereunder shall be exclusively in state or federal courts of the state of Utah.
    6. Arbitration. Before filing any action hereunder in state or federal court, Licensee and Company agree to submit to binding arbitration all claims, disputes, and controversies among them (and their respective employees, officers, directors, managers, agents, independent distributors, and Licensed Users), whether in tort, contract, or otherwise arising out of or relating in any way to this Agreement, or the breach thereof. Any arbitration proceeding shall (i) proceed in Salt Lake City, Utah; (ii) be governed by the Federal Arbitration Act (Title 9 of the United States Code or the successor thereto); and (iii) be administered and conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
    7. Amendments. Except as provided otherwise in this Agreement, this Agreement may not be amended, modified, superseded or cancelled, nor may any of the terms, covenants, representations, warranties, conditions or agreements herein be waived, except by a written instrument executed by the Party against whom such amendment, modification, supercedure, cancellation or waiver is charged.
    8. Force Majeure. Neither Party shall be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed Party: (a) gives the other Party prompt notice of such cause; and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.
    9. Construction. The captions and headings contained herein are for convenience of reference only, and shall not in any way affect the meaning or interpretation of this Agreement. Notwithstanding any rule of construction to the contrary, any ambiguity or uncertainty in this Agreement shall not be construed against either of the Parties based upon authorship of any of the provisions hereof.
    10. Counterparts. This Agreement may be executed by facsimile or other ways and may be executed in one or more counterparts, each of which shall be deemed an original, and all of which, when taken together, shall constitute one and the same instrument.
    11. Attorneys’ Fees. In the event either of the Parties shall take legal action in connection with the performance, breach or interpretation of this Agreement, or in any action related to the subject matter hereof, whether or not a lawsuit is initiated, the prevailing Party in such action shall be entitled to recover from the non-prevailing Party in such action all reasonable costs and expenses of such action, including, without limitation, attorneys’ fees, costs of investigation, arbitration, accounting and other costs reasonably incurred or related to such action, whether such expenses are incurred with or without trial, or appeal, or in a bankruptcy proceeding.
    12. Notices. All notices required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly delivered three (3) days after mailing via certified U.S. mail, postage prepaid, to the address of the other Party as indicated above. Notices delivered other than by mail shall be effective on the date of receipt as evidenced by fax confirmation page (so long as it is a business day) or date of delivery by overnight courier as evidenced by courier documentation.
    13. Successors and Assigns. This Agreement shall be binding on all successors and assigns of the Parties.
    14. Non-Assignability. This Agreement is assignable by either Party, upon the written consent of the other Party, which consent will not be unreasonably withheld. This Agreement is personal to each Party, and neither the Agreement, nor the rights or duties hereunder, may be voluntarily or involuntarily, directly or indirectly, assigned or otherwise transferred or encumbered by the other Party (including without limitation by will, declaration of or transfer in trust, the laws of intestate succession, or by operation of law) without the prior written approval of the other Party. Any unauthorized assignment, transfer or encumbrance shall constitute a breach hereof.
    15. No Implied Waivers. The failure of either Party at any time to require performance by the other Party of any provision hereof shall in no way affect the full right to require such performance at any time thereafter. No waiver by either of the Parties of any condition, or of any breach of any term, covenant, representation, warranty, condition or agreement contained herein, shall be deemed to be or shall be construed to be a waiver or continuing waiver of any such condition or breach or a waiver of any other condition or of the breach of any other term, covenant, representation, warranty, condition or agreement hereof. Company and Licensee have read the foregoing, and agree to and accept the foregoing as of the Effective Date.
    16. Guaranty. You and the Company (the “Guarantor”), hereby unconditionally and irrevocably guarantees that all amounts due and owing pursuant to the terms and conditions of the foregoing Agreement (and any Addendum(s) thereto) to be payable by Licensee will be promptly paid in full when due, in accordance with the provisions of this Agreement. If for any reason any such amounts shall not be paid by Licensee promptly in accordance with the terms of the Agreement (including the expiration of any period of grace provided for in the Agreement for the payment of any such sums), then Guarantor, promptly after receiving notice thereof, will pay the same to Company regardless of (a) any defenses or rights of set-off or counterclaims which Licensee may have or assert, and (b) any other condition or contingency. Guarantor also agrees to pay to Company or such persons entitled thereto such further amounts as shall be necessary to cover the cost and expense of collecting such sums or any part thereof, or of otherwise enforcing this Guaranty, including, in any case, reasonable compensation to Company’s attorneys for services rendered, court costs, out-of-pocket costs, and expenses of every kind with respect to such collection. This Guaranty is a guarantee of payment and not of collectability. This Guaranty is irrevocable, unconditional and absolute.
    17. Support Services. Company may provide Licensee with certain support services, custom programming services and other support services needed or otherwise requested by Licensee where such services are not included within the scope of the standard Hosting Services. By way of example, this may include modification or alteration of any of the WorldVu® and Team Office® products identified previously in this Agreement and/or the compensation module to more accurately meet the needs of Licensee. Company may, in its discretion, notify Licensee of the estimated fees for any Support Services based on the scope and nature of the services to be provided as determined by Company and by the rates specified within the Company website. Company shall obtain Licensee’s consent prior to providing such services where the estimate for a single request exceeds the minimum hosting fee listed within the Company website. Any agreement shall be in writing and is hereby incorporated by reference into this Agreement. Support Services and terms may be modified from time to time by Company, through publication on Company’s website, or through authorized printed promotional materials and shall be provided in writing to the Licensee, distributed by Company, as determined by Company. Rate increases shall not exceed five percent (5%) for any given period commencing at the Execution Date of this agreement. Licensee agrees to pay Company all fees and other amounts charged by Company for Support Services which are authorized by Licensee. Upon approval for estimated work at Company’s discretion, Licensee may be required to prepay for such work prior to project commencement. Thereafter, the balance shall be paid through electronic means upon completion of such work. Licensee shall be charged for Support Services through issuance of electronic invoices, as per current billing policies of Company, unless indicated otherwise by Company. Payment terms, methods and default with respect to Support Services shall be governed by Company website and this Agreement. Support Services fees and associated costs may, in Company’s discretion, be recorded in Company’s project management software.
    18. Support Services are charged at a Cost per Hour billed in 15 minute increments. The Hourly Rate applies to any and all pre and post launch setup and services work required by the Licensee.
    19. Licensee shall set up an ACH account for all services work to be charged.
11. All features, services, software and costs are subject to change. Company does not warrant that these items match Licensee’s business application needs. Refer to the body of this agreement for warranty information and limitations. Company is continually modifying and enhancing its product and services offering wherein these changes may affect this features list at any time. Being that the core application set that the Licensee is using is shared with other Company clients; the Licensee’s software may be updated and enhanced from time-to-time and may incurring additional fees to the Licensee.

Last Updated: 8/10/2017