XTRA Master Agreement

THIS MASTER AGREEMENT (“AGREEMENT”) GOVERNS CUSTOMER’S ACQUISITION AND USE OF THE PRODUCTS AND SERVICES PROVIDED BY PMR, INC. (d/b/a XTRA), A DELAWARE CORPORATION WITH A PRINCIPAL BUSINESS LOCATION AT 115 W 18th ST, NEW YORK, NY 1001 (“XTRA”). CUSTOMER ACCEPTS THIS AGREEMENT BY (1) EXECUTING AN SOW THAT REFERENCES THIS AGREEMENT, AS MAY BE AMENDED FROM TIME TO TIME, OR (2) ACCESSING THE XTRA PLATFORM TO USE THE PRODUCTS AND SERVICES (“EFFECTIVE DATE”). IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF ANOTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THIS AGREEMENT, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PRODUCTS AND SERVICES.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
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1. DEFINITIONS. Capitalized terms not otherwise defined in the first instance of their use shall have the meanings ascribed to them in this Section 1.
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“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the applicable entity. For purposes of this definition, “control” means, direct or indirect, ownership or control of more than fifty percent (50%) of the applicable entity.
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“Customer Data” means all data or information submitted, posted or created by or on behalf of Customer or Users in the course of using the Products and/or Services, including Personal Data.
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“Data Protection Laws” mean all applicable privacy, data protection or similar laws and regulations anywhere in the world, as the same may be amended from time to time, including to the extent applicable to this Agreement: (i) the California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 et seq., as amended (“CCPA”); and (ii) the EU General Data Protection Regulation ( “GDPR” ) (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016), and any applicable implementing legislation or any amendment thereto.
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“XTRA Platform” means the website located at https://xtravision.ai/ (or any successor or affiliated website XTRA designates), and any mobile applications and other online platforms operated by XTRA and through which the Products and Services may be made available to Customer.
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“Generic Data” means Customer Data that is aggregated, de-identified and/or compiled on a generic basis.
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“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
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“Personal Data” means “personal data”, “personal information” or other similar terms as defined under Data Protection Laws which is processed from time to time by the parties in connection with this Agreement or the Terms of Use. The terms “controller”, “processor”, “data subject”, “business”, “owner”, “service provider” and “processing” (and related expressions) shall have the meanings given to them in the Data Protection Laws.
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“Products” means the online, web-based application provided by XTRA via the XTRA Platform or other designated application service providers as described on the XTRA Platform and licensed in accordance with the applicable SOW.
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“Services” means services provided by XTRA or XTRA’s third party affiliates as described on the XTRA Platform and in accordance with the applicable SOW.
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“Statement of Work” or “SOW” means an ordering document for Customer’s purchases of Products and/or Services from XTRA that is executed by the parties and references this Agreement.
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“Terms of Use” means the XTRA terms and conditions, as amended from time to time, regulating the use of the XTRA Platform by each person accessing the same, currently available at https://www.xtravision.ai/masteragreement/. If the Terms of Use conflict with the terms of this Agreement, this Agreement will prevail to the extent of the conflict.
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“Users” means individuals who are authorized or solicited by Customer to use the Products and Services pursuant to this Agreement, and who have been supplied user identifications and passwords by Customer or by XTRA. Users may include but are not limited to clients, employees, consultants, contractors and agents of Customer and its Affiliates.

2. PRODUCTS AND SERVICES

1. Statements of Work. The parties shall execute an SOW for any Products to be licensed and/or Services to be purchased by Customer from XTRA pursuant to this Agreement.
2. Access and License Grants. Subject to the terms and conditions of this Agreement and the Terms of Use, XTRA grants to Customer a limited, non-exclusive, (except as expressly set forth in this Section 2.2) non-sublicensable, non-transferable license to use the Products and Services, and to access the XTRA Platform through a standard internet connection, in each case solely (i) during the applicable subscription term, (ii) for internal business purposes, and (iii) in accordance with applicable XTRA’s documentation and guidelines posted on the XTRA Platform or otherwise made available to Customer. Notwithstanding the foregoing, Customer shall have the right to provide user-level access to the XTRA Platform to the Users during the subscription term in accordance with the terms of this Agreement the applicable SOW.
3. Infrastructure Requirements. Customer agrees that it shall be responsible for the cost of and the providing and maintaining of all necessary telecommunications equipment, including, but not limited to, the following: computers, internet connectivity, software and other materials at Customer’s locations necessary for accessing the XTRA Platform and using the Products and Services.
4. Changes of Services. Customer understands that any changes to previously approved work requested by Customer may require an increase or change in the work and/or resources provided by XTRA that deviate from the applicable SOW (each, a “Change of Services”). Any Change of Services shall be effective only when approved in writing by both parties (e-mail is sufficient). Each approved Change of Services is hereby incorporated herein by this reference. For purposes of this Section 2.4., "changes to previously approved work" means new information, instructions, and/or unanticipated events that materially alter the scope or nature of the project, and/or substantially increase the estimated hours, effort, or expenses required for its completion.
5. Security Procedure. Access to the XTRA Platform as allowed under this Agreement will be granted by using a XTRA approved access/authentication method (“Security Procedure”). Customer shall be responsible for maintaining the confidentiality and security of the Security Procedure, and shall permit only its employees or contracted staff necessary for the purposes stated in this Agreement or the Terms of Use access to the Security Procedures. In addition to the rights set forth in the Agreement, XTRA reserves the right to (x) access, review, and copy or delete any content or files added to the XTRA Platform by Customer or any User for any purpose, and to (y) disconnect Customer or any User from the XTRA Platform at any time, to the extent XTRA reasonably determines such action is necessary or appropriate to safeguard the XTRA Platform. In addition, XTRA reserves the right to change, modify, add to, discontinue, or retire any aspect or feature of the Products and Services and the XTRA Platform at any time and for any reason.

2. PERMITTED USE

2.1 XTRA’s Responsibilities. XTRA shall provide the Services and make the Products available to Customer pursuant to the terms of the applicable SOW and this Agreement; provided, however, that Customer acknowledges that the XTRA Platform may be unavailable from time to time for maintenance and such unavailability will not be considered a breach of this Agreement. XTRA will use reasonable efforts to give written notice (including by email) to Customer prior to any scheduled service disruption. XTRA may integrate the XTRA Platform with third party applications; provided, XTRA does not warrant or support third party products or services, except as expressly specified in a SOW, and XTRA disclaims any responsibility for any disclosure, modification or deletion of Customer Data resulting from any such access by third party application providers.
2.2 Customer’s Responsibilities. Customer shall be responsible for all activities that occur in User accounts and for Users' compliance with this Agreement. In addition, Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Products, notify XTRA promptly of any such unauthorized access or use; and (iii) comply with all applicable local, state, federal and foreign laws in using the Products. XTRA is not responsible for determining the requirements of laws applicable to Customer’s business, including those relating to the Products that Customer acquires under this Agreement, or XTRA’s provision of or Customer’s receipt of a particular Product or Service under this Agreement meets the requirements of such laws. Customer shall also provide all assistance reasonably requested by XTRA and shall permit XTRA to access and use its systems, facilities, and materials (including the Customer Data) for purposes of performing Services and/or providing the Products hereunder.
2.3 XTRA Guidelines. Customer shall use the Products solely for Customer’s internal business purposes as contemplated by this Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Products available to any third party, other than to Users pursuant to Section 2.2; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws or the Terms of Use; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (iv) send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Products or the data contained therein; (vi) attempt to gain unauthorized access to the Products or XTRA’s related systems or networks; (vii) access the Products if Customer is a direct competitor of XTRA, except with XTRA’s prior written consent; or (viii) access the Products for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
2.4 Third-Parties. Customer shall not be permitted to allow the use or access of the Products by any third party (other than Customer’s personnel or Users as contemplated by this Agreement) without the prior written approval of XTRA.
2.5 Security. Each party agrees (i) it shall maintain information security measures designed to protect Customer Data from unauthorized disclosure or use, and (ii) it shall, upon request, provide the other party with information regarding such security measures upon the reasonable request of such party and promptly provide the requesting party with information regarding any failure of such security measures or any security breach related to Customer Data. Customer acknowledges and agrees that XTRA may use one or more third-party providers to host the Products.

3. FEE AND PAYMENT

3.1 Fees. Customer shall pay all fees specified in all SOWs. All fees are quoted and payable in United States dollars. Except as otherwise specified herein or in an SOW, fees are based on Products and/or Services procured, payment obligations are non-cancelable, fees paid are non-refundable, and the Products and/or Services procured cannot be decreased during the relevant term stated on the SOW.
3.2 Invoicing and Payment. XTRA will invoice Customer for: (i) Products in advance for the applicable subscription term; and (ii) Services in accordance with the applicable SOW. Unless otherwise stated in the SOW, charges are due within 30 days from the invoice date.
3.3 Travel Reimbursement. Customer will reimburse XTRA for any travel associated with onsite XTRA resources associated with any live event(s), Services or Products which cannot reasonably be performed remotely.
3.4 Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at XTRA’s discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
3.5 Suspension of Products and/or Services. If Customer’s account is 30 days or more overdue, in addition to any of XTRA’s other rights or remedies, XTRA reserves the right to suspend the Products and/or Services provided to Customer, without liability to Customer, until such amounts are paid in full.
3.6 Taxes. Unless otherwise stated, XTRA’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder, excluding taxes based on XTRA’s net income or property. If XTRA has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides XTRA with a valid tax exemption certificate authorized by the appropriate taxing authority.
3.7 Payment Processing. As part of the provision of the Products and Services, XTRA may require Customer to receive and transmit amounts payable (or reimbursable) through third-party payment platforms ("Payment Processors"). By using a Payment Processor, Customer acknowledges and agrees that all payments and monetary transactions through the XTRA Platform are handled by such Payment Processor, and to be bound by their respective terms of service. Customer acknowledges and agrees that XTRA shall not be liable for any issues related to payments and monetary transactions that occur through Customer’s (or any Users’) use of the XTRA Platform. This includes transactions that were not processed due to a network communication error, or any other reason. Customer agrees to not hold XTRA liable for any adverse effects that actions (whether intentional or unintentional) on the part of any Payment Processors may cause to Customer’s (or any Users’) accounts or its business.

4. INTELLECTUAL PROPERTY

4.1 Residuals. Customer acknowledges that XTRA, in the provision of the Products and/or Services, may use concepts or modifications of concepts developed while serving other clients. Customer acknowledges the benefit which may accrue to Customer, and Customer expressly and irrevocably permits XTRA to continue in perpetuity, and without payment of a royalty, this practice of using concepts developed while serving Customer and modification of such concepts. The terms of this Section do not, however, affect the obligations of the parties under Section 6 (Confidentiality).
4.2 XTRA Intellectual Property. XTRA and its licensors shall own the Products, Services, XTRA Platform, including the underlying structure, functions, methods of operation, and ideas related thereto, and all documents, code, works of authorship, programs, manuals, tools, user interfaces, deliverables, developments, processes, formulae, data, specifications and inventions provided, created, owned, licensed, developed, authored or invented by XTRA (including its employees and contractors) prior to or independently of this Agreement, as well as enhancements, derivative works and/or modifications to the foregoing created by XTRA in the course of this Agreement and any SOW; all of such right, title and interest in them shall remain vested with XTRA (collectively, “XTRA Materials”). Except for the limited, express license and access grant provided to Customer and the Users pursuant to this Agreement, nothing in this Agreement or the Terms of Use shall grant to or confer upon Customer or any User expressly or by implication any rights to such XTRA Materials.
4.3 Generic Data. XTRA may use Generic Data to improve any Products and/or Services. Customer hereby grants to XTRA a non-exclusive, worldwide, perpetual, fully-paid up, transferable, royalty-free, irrevocable, sublicensable license to use, copy, sell, perform, display, distribute (directly and through multiple tiers), and create derivative works of the Generic Data for itself and others.
4.4 Suggestions. Customer hereby grants to XTRA a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Products and/or Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer’s or Customer’s users relating to the Products and/or Services.

5. CONFIDENTIALITY

5.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all SOW hereunder), the Terms of Use, the Products and/or Services, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
5.2 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
5.3 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
5.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief.
5.5 Access to Data. During the term of this Agreement, Customer shall have access to Customer Data. Upon termination of the applicable SOW, XTRA will have no obligation to keep the Customer’s relevant data from such Products after the effective date of the termination of the applicable SOW. Notwithstanding the foregoing, Customer is solely responsible for retrieving any data stored or used with the Products while Customer has access to the Products, and upon the effective date of the termination of the applicable SOW, Customer will not have access to the Products. XTRA shall also be permitted to retain Generic Data.

6. PRIVACY AND DATA PROTECTION.

Each party shall comply with its respective obligations under Data Protection Laws; provided, however, that Customer shall be solely responsible for providing all notices and obtaining and maintaining all consents, authorizations, and licenses required by all applicable laws, rules and regulations for Customer or XTRA to access, use, process, disclose, transmit and store (collectively, “Process”) the Customer Data including any Personal Data as contemplated under this Agreement. In addition to any other Processing of Customer Data by XTRA contemplated under this Agreement (each of which, together with the following Processing activities, shall be considered the “Business Purpose” (or similar term) as may be defined under applicable Data Protection Laws), Customer agrees that XTRA may Process Customer Data (including any Personal Data) as applicable and as necessary and proportionate (a) to perform the Services, including in connection with retaining and employing subcontractors; (b) to comply with law and respond to regulatory and enforcement inquires; (c) to protect against data security incidents and fraudulent or illegal activities; (d) for internal use by XTRA to build or improve the quality of its services; (e) for the purpose of responding to a subpoena or other legal process; (f) to exercise or defend legal claims; (g) to de-identify and aggregate Personal Data, including in the exercise of the rights granted to XTRA under this Agreement regarding Generic Data; and (h) for other purposes permitted by law. XTRA shall not sell nor Process Personal Data constituting Customer Data other than for the Business Purpose.

7. INDEMNIFICATION

7.1 Indemnification by XTRA. Subject to this Agreement and the Terms of Use, XTRA shall defend, indemnify and hold Customer, its Affiliates and the officers, directors, employees, contractors and agents of Customer and its Affiliates (together, “Customer Indemnitees”) harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with third-party claims, demands, suits, or proceedings (collectively, “Claims”) made or brought against any Customer Indemnitee alleging that the use of the Products as contemplated hereunder infringes the patents and/or copyrights of a third party; provided, that Customer: (i) promptly gives written notice of the Claim to XTRA; (ii) gives XTRA sole control of the defense and settlement of the Claim (provided that XTRA may not settle or defend any Claim absent Customer’s written consent (not to be unreasonably withheld) unless it unconditionally releases Customer of all liability); and (iii) provides to XTRA, at XTRA’s cost, all reasonable assistance. XTRA shall have no obligation regarding any claim arising from or relating to, in whole or in part, any of the following: (a) anything provided by Customer or a third party on Customer’s behalf; (b) modification of Products by Customer or a third party on Customer’s behalf; (c) the Products’ use other than in accordance with applicable licenses and restrictions; (d) the combination, operation, or use of the Products with anything not provided by XTRA; or (e) the distribution, operation, or use of the Products outside Customer and Customer’s Affiliates or for the benefit of any third party.
7.2 Indemnification by Customer. Subject to this Agreement and the Terms of Use, Customer shall defend, indemnify and hold XTRA, its Affiliates and the officers, directors, employees, contractors and agents of XTRA and its Affiliates (together, “XTRA Indemnitees”) harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with Claims made or brought against any XTRA Indemnitee arising out of or resulting from: (i) any negligent, willful or unlawful act or omission by Customer or its Users; (ii) violation of any applicable laws or regulation by Customer or its Users; (iii) Customer’s (or its Users’) breach of this Agreement or the Terms of Use; (iv) Customer’s relationship with its employee(s), contractors or other third parties performing services or providing products on behalf of Customer (including in connection with any procurement activities related to any SOW); and (v) any allegations that the Customer Data, any materials provided by Customer (e.g., any intellectual property that Customer may provide hereunder) or Customer’s (or its Users’) use of the Products in violation of this Agreement or the Terms of Use, infringes the intellectual property rights of a third party; provided, that XTRA (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim absent XTRA’s written consent (not to be unreasonably withheld) unless it unconditionally releases XTRA of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance.

8. WARRANTIES AND DISCLAIMERS

8.1 Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. Further, XTRA represents and warrants that: (i) XTRA will provide the Products and Services in accordance with the applicable SOW; (ii) the functionality of the Products will not be materially decreased during a subscription term, except during a scheduled service disruption as provided herein or in the applicable SOW; and (iii) XTRA will implement reasonable measures to assure that the Products will not contain or transmit to Customer any Malicious Code.
8.2 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, XTRA AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES (INCLUDING IMPLIED AND STATUTORY WARRANTIES) OTHER THAN THOSE EXPRESSLY PROVIDED IN SECTION 9.1, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FURTHER, XTRA AND ITS SUPPLIERS DO NOT WARRANT THAT ANY PRODUCTS AND/OR SERVICES SHALL MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR ARE ERROR FREE. XTRA DOES NOT PROVIDE, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, AND ALL OBLIGATIONS OR LIABILITIES FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE, MAINTENANCE OR PERFORMANCE THEREOF. ANY ESTIMATE REGARDING SCOPE, TIME OF COMPLETION, COSTS, OR OTHER MATTERS WHICH MAY BE PROVIDED BY XTRA ORALLY OR IN WRITING (WHETHER IN AN SOW OR OTHERWISE) ARE GIVEN USING COMMERCIALLY REASONABLE METHODS OF ESTIMATION AND ARE IN GOOD FAITH, BUT SHALL NOT BE CONSTRUED AS A WARRANTY OR GUARANTEE OF ANY TYPE. XTRA DOES NOT WARRANT AND IS NOT RESPONSIBLE FOR THE ACCURACY OF ANY DATA (INCLUDING ANY CUSTOMER DATA) AND/OR INPUT OR REPRESENTATIONS BY THIRD PARTY SUPPLIERS.

9. LIABILITY

9.1 Limitation of Liability. IN NO EVENT SHALL XTRA’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TERMS OF USE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS.
9.2 Exclusion of Consequential and Related Damages. CUSTOMER AGREES THAT THE CONSIDERATION WHICH XTRA IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY XTRA OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND OR LOSS OF CUSTOMER DATA, REVENUE, PROFITS, OR ANTICIPATED SAVINGS OR ACCURACY OF ANY DATA AND/OR INPUT OR REPRESENTATIONS BY THIRD PARTY SUPPLIERS, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE PRODUCTS AND SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE PRODUCTS AND SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. TERM AND TERMINATION

10.1 Term of Agreement. This Agreement commences on the Effective Date and continues until the earlier to occur between the following events: (i) all SOWs executed under this Agreement have expired or been terminated or (ii) when this Agreement is otherwise terminated in accordance with this Section 11.
10.2 Termination for Cause. A party may terminate this Agreement and any SOW for cause: (i) upon 15 days written notice of a material breach of the Agreement to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.3 Termination for Convenience. A party may terminate this Agreement and any SOW for convenience upon no less than 30 days prior written notice to the other party.
10.4 Additional Termination Rights. In addition, XTRA may at any time terminate this Agreement and any applicable SOW in the event that: (i) XTRA is required to do so by law (e.g., the provision of the Services to Customer is, or becomes, unlawful); (ii) the provision of the Products or Services to Customer by XTRA is, in XTRA’s opinion, no longer commercially viable; or (iii) XTRA has elected to discontinue the Products or Services (or any part thereof).
10.5 Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to XTRA prior to the effective date of termination. XTRA is not obligated to issue a refund or credit for any unused portion of such Services.
10.6 Return and/or Deletion of Customer Data. Within a reasonable period after the termination or expiration of the applicable SOW and in accordance with Section 6.5, XTRA will return and (if so requested by Customer in writing or otherwise elected by XTRA) delete all Customer Data in XTRA’s systems or otherwise in XTRA’s possession or under XTRA’s control; provided, however, the foregoing shall not affect XTRA’s rights to Generic Data set forth in this Agreement, and XTRA shall be permitted to retain Generic Data after the termination or expiration of the applicable SOW and this Agreement.
10.7 Effect of Termination and Surviving Provisions. If this Agreement and/or the SOW is terminated, XTRA will cease to provide all Products and Services hereunder for Customer’s account and all licenses and access rights granted to Customer hereunder shall immediately terminate. Accordingly, Customer must immediately cease (and ensure that all Users immediately cease) all access to and use of the Products and Services and the XTRA Platform. The following provisions shall survive any termination or expiration of this Agreement: Sections 3.2 through 3.5 and Sections 4 through 13.

11. DISPUTE RESOLUTION

11.1 Informal Dispute Resolution Procedures. Any dispute, controversy or claim of any kind or nature arising under or in connection with this Agreement (including, but not limited to, disputes as to the creation, validity, interpretation, breach or termination of this Agreement or any SOW) (a “Dispute”) will be considered in accordance with the dispute resolution procedures set forth in this Section 12. The dispute resolution process will be initiated upon receipt by a party of a notice from the other party specifying the nature of the Dispute. Notwithstanding the foregoing, either party may commence proceedings if delay in doing so would be prejudicial, because of the need for immediate provisional remedies, imminent expiration of applicable statutes of limitation, or other good cause.
11.2 Resolution Without Proceedings. The parties intend to use reasonable measures to avoid the litigation of any dispute under this Agreement. As a result, the parties mutually agree that any Dispute arising under or in connection with this Agreement will be resolved using the alternative dispute resolution provisions and procedures described in this Section 12. Except as otherwise agreed, the parties will each bear all of their own expenses incurred during the procedures and will pay one-half of any applicable fees of any mediator or third-party agency engaged to assist in resolution of disputes short of legal or arbitral proceedings. All negotiations pursuant to this Section 12 are confidential and will be treated as compromise and settlement negotiations for purposes of the applicable rules of evidence. No proposals, offers, counter-offers or other communications will be admissible in evidence in any proceeding for any purpose; provided, however, that this will not be construed to render confidential, inadmissible or non-discoverable any otherwise admissible documents or other evidence merely because they were referred to, transmitted or otherwise used in any such settlement negotiations.
11.3 Negotiation. Upon written notice by either party, a Dispute will be submitted to the other party, who will meet and employ their best efforts to negotiate an amicable resolution of the Dispute. Unless the parties otherwise agree, this meeting and negotiation will occur no later than 10 days from the date of submission of the Dispute to such party, whichever occurs last.
11.4 Arbitration. Except as otherwise expressly set forth in this Agreement, any dispute that the parties are unable to resolve through negotiation will be submitted to binding arbitration in New York City, New York, administered by JAMS. In all disputes there shall be 1 arbitrator agreed to by the parties. The arbitrator shall issue a decision in writing, stating reasons therefor, including both findings of fact and conclusions of law, and may award any remedy available at law or in equity (consistent with the terms of this Agreement). The arbitrator shall have no power to amend or supplement this Agreement to award damages other than as permitted by this Agreement, or to fail to follow applicable law. Any award rendered by the arbitrator shall be final and binding on the parties, and may be confirmed by the judgment of a court of competent jurisdiction.

12. GENERAL PROVISIONS

12.1 Relationship of the Parties. The parties are independent contractors. Neither this Agreement nor the Terms of Use create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. XTRA may subcontract the performance of its obligations under this Agreement or the Terms of Use to a third party without the prior approval of Customer; provided, however, XTRA shall remain responsible for the performance of any such obligations.
12.2 No Third-Party Beneficiaries. Except for the indemnitees set out in Section 8 (Indemnification) and solely for purpose of such indemnities, there are no third-party beneficiaries to this Agreement.
12.3 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email.
12.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.5 Force Majeure. If and to the extent that a party's performance of any of its obligations pursuant to the Agreement (other than its obligation to pay amounts due thereunder) is prevented, hindered or delayed by fire, flood, hurricane, earthquake, other elements of nature or acts of God, acts of war, acts of a public enemy, acts of a nation or any state, territory, province or other political division, terrorism, riots, civil disorders, rebellions or revolutions, epidemics, pandemics, theft, quarantine restrictions, freight embargoes or any other similar cause in each case beyond the reasonable control and without the fault or negligence of such party (each, a “Force Majeure Event”), then the non-performing, hindered or delayed party will be excused for such non-performance, hindrance or delay, as applicable, of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues.
12.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.7 Attorney Fees. Customer shall pay on demand all of XTRA’s reasonable attorney fees and other costs incurred by XTRA to collect any fees or charges due XTRA under this Agreement following Customer’s breach of Section 4 (Fees and Payment).
12.8 Publicity. XTRA may include Customer’s tradename and logo on publicly displayed customer lists (including XTRA Platform) and may make reference (oral or written) to Customer being a customer of XTRA. Without limiting the foregoing, neither party shall use the name of the other party in any press releases or case studies in connection with this Agreement without the prior written consent of the other party.
12.9 Non-solicitation. Neither party will, directly or indirectly, solicit for employment or hire any personnel of the other party who is involved in the performance of the Services during the term of this Agreement and for a period of 12 months thereafter, except as may be agreed to in writing by both parties. This restriction shall not apply to restrict the solicitation to hire or hiring of any employee or contractor of a party that responds to a general advertisement of the availability of employment that is not directed to such party or person.
12.10 Excuse from Performance. XTRA will be excused from failures to perform the Services and providing the Products to the extent that Customer or its agents fail to perform any of its obligations as identified in the applicable SOW in a timely manner or commit any other act or omission that causes XTRA’s failure to perform the Services or provide the Products.
12.11 Changes. XTRA retains the right, in its sole and absolute discretion, to change or add to the terms of this Agreement at any time, and such amendments will take effect immediately as of the effective date of such change.
12.12 Assignment. Subject to XTRA’s right to subcontract pursuant to Section 13.1, neither party shall assign or otherwise transfer this Agreement or any rights or obligations contained herein without the prior written consent of the other party. Notwithstanding the above, XTRA may assign its rights and obligations under this Agreement, without the consent of Customer, to an Affiliate or to a successor in interest to all or substantially all of its business or assets that relates to the subject matter of this Agreement.
12.13 Governing Law. This Agreement shall be governed exclusively by the laws of the State of New York, without regard to its conflicts of laws rules.
12.14 Entire Agreement. This Agreement, including all SOWs and appendices thereto, and the Terms of Use constitute the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions of this Agreement and an SOW, the descending order of precedence shall be as follows: (i) this Agreement; and (ii) the applicable SOW. Notwithstanding the foregoing, this Agreement may be modified by specifically referencing the relevant conflicting provision of this Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in a purchase order or in any other order documentation (excluding duly executed SOWs) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. In no event shall this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods, or by any version of the Uniform Computer Information Transactions Act enacted in any jurisdiction.