Effective: May 20, 2026
This XtendLive Enterprise Terms of Service (this “Agreement”) governs access to and use of the XtendLive Service by the customer identified in the applicable Order Form (“Customer”). By executing an Order Form that incorporates this Agreement by reference, Customer agrees to be bound by this Agreement. If Customer is entering into this Agreement on behalf of an organization, that organization is the Customer. XtendLive, Inc. (“XtendLive”), and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
1. DEFINITIONS
1.1 “Admin Users” means Customer’s employees, agents, and authorized contractors who are designated by Customer to administer and use Customer’s Hub, including configuring settings, managing content, scheduling sessions, managing Policyholder access, and interacting with Policyholders.
1.2 “Aggregated Data” has the meaning given to such term in Section 5.3.
1.3 “Authorized Users” means Admin Users and Policyholders, collectively.
1.4 “Beta Features” has the meaning given to such term in Section 2.3.
1.5 “Customer Content” means content, materials, communications, branding assets, session recordings, and other materials that Customer or its Admin Users upload to, create within, or make available through the Hub, including content Customer makes available to Policyholders.
1.6 “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer, an Admin User, or a Policyholder through the XtendLive Service, or otherwise provided or made available to XtendLive by Customer or any Authorized User in connection with the use of the XtendLive Service. Customer Data includes Customer Content and Policyholder Data. Customer Data does not include Aggregated Data or Usage Data.
1.7 “Customer Property” has the meaning given to such term in Section 5.2.
1.8 “Documentation” means XtendLive’s then-current technical and functional documentation for the XtendLive Service, as made available on XtendLive’s website or otherwise made available to Customer.
1.9 “Effective Date” has the meaning set forth in the applicable Order Form.
1.10 “Hub” means the branded, hosted policyholder engagement environment provisioned by XtendLive to Customer within the XtendLive Service.
1.11 “Order Form” means the ordering document executed by the Parties that incorporates this Agreement by reference, specifying [DF1] the Subscription, fees, Subscription Term, and other commercial terms.
1.12 “Policyholders” means the policyholders, prospects, and other individuals invited by Customer to access the Hub. Policyholders are end users of Customer’s Hub and are not third-party beneficiaries of this Agreement.
1.13 “Policyholder Data” means information, data, and content associated with Policyholders or their interaction with the Hub, including names, contact information, account credentials, attendance and engagement activity, and content submitted by Policyholders. As between Customer and XtendLive, Policyholder Data is Customer Data, and Customer is the controller (or analogous role under applicable law) of Policyholder Data.
1.14 “Security Incident” means any unauthorized access to, acquisition of, disclosure of, or destruction of unencrypted Customer Data in XtendLive’s possession or control. A Security Incident does not include unsuccessful attempts or events that do not compromise the security or confidentiality of Customer Data (e.g., pings, port scans, denial-of-service attempts, or unsuccessful log-in attempts).
1.15 “Subscription” means Customer’s subscription to access the XtendLive Service as specified in the applicable Order Form.
1.16 “Subscription Term” means the term of Customer’s Subscription as specified in the applicable Order Form, and any renewal(s) thereof pursuant to Section 6.1.
1.17 “Support” means the standard technical support services provided by XtendLive to Customer for the XtendLive Service as described in Section 2.6.
1.18 “Usage Data” has the meaning given to such term in Section 5.3.
1.19 “Usage Parameters” means the number of Hubs, the maximum number of Admin Users or Policyholders (if any), and any other parameters or restrictions specified on the applicable Order Form or in the Documentation regarding the use of the XtendLive Service.
1.20 “XtendLive Property” means the XtendLive Service, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, XtendLive Property includes Aggregated Data and Usage Data, and any information, data, or other content derived from XtendLive’s provision of the XtendLive Service, but does not include Customer Property.
1.21 “XtendLive Service” means XtendLive’s proprietary multi-tenant, hosted policyholder engagement platform, including any Hub provisioned to Customer, the Documentation, any Beta Features made available to Customer, and the Support, in each case as made available or provided by XtendLive to Customer under this Agreement.
2. ACCESS TO THE XTENDLIVE SERVICE
2.1 XtendLive Service and Documentation. Subject to the terms and conditions of this Agreement, XtendLive grants to Customer during the Subscription Term (as defined below), a non-exclusive, non-transferable (except as expressly permitted in Section 14.7), non-sublicensable, limited right to access and use, and permit its Authorized Users to access and use, in each case solely for Customer’s internal business purposes and to operate Customer’s Hub for engagement with Customer’s Policyholders in accordance with this Agreement, (a) the XtendLive Service, over the internet and in accordance with the Documentation, and subject to any applicable Usage Parameters and user permission levels; and (b) the Documentation, solely in connection with Customer’s use of the XtendLive Service.
2.2 Beta Features. If Customer elects to access any Beta Features, XtendLive grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Beta Features solely for Customer’s internal evaluation and subject to any and all technical limitations implemented in the Beta Features and any other applicable limitations by XtendLive for the Beta Features. Beta Features are provided as-is, are not supported, and may be subject to additional terms as specified by XtendLive in writing or in the applicable Documentation for the Beta Features. Nothing in this Agreement requires or otherwise obligates XtendLive to make available any Beta Features to Customer. XtendLive reserves the right to terminate Customer’s access to any Beta Features at any time, for any reason. “Beta Features” means any beta versions of and beta features and functionality of the XtendLive Service which are clearly designated as beta, pilot, limited release, preview, non-production, evaluation, or by a similar description, and made available by XtendLive to Customer hereunder.
2.3 No Training on Customer Data. XtendLive shall not, and shall not permit any third party to, use Customer Data to train, develop, or improve any generative artificial intelligence, machine learning, or large language models, except as necessary to provide the XtendLive Service to Customer or as expressly authorized by Customer in writing. If XtendLive makes generative artificial intelligence or machine learning features available within the XtendLive Service in the future (“AI Features”), (a) XtendLive will provide Customer reasonable prior notice and the opportunity to opt out of the AI Features, (b) the no-training commitment in this Section 2.3 will apply to any Customer Data input into, or output generated through, such AI Features, and (c) Customer acknowledges that any AI-generated output may be probabilistic and that Customer is responsible for evaluating its accuracy and appropriateness for Customer’s use case.
2.4 Support. During the Subscription Term, XtendLive shall provide Customer with Support in accordance with XtendLive’s standard support policy. Standard Support is available Monday through Friday, 8:00 a.m. to 7:00 p.m. Eastern Time, excluding XtendLive holidays, with a target initial response time of 24 hours from receipt of a support request submitted through XtendLive’s designated support channel. Support does not include training, custom development, configuration, or implementation services.
2.5 Restrictions. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized User or any other third party to: (a) use or allow access to the XtendLive Service, or any part thereof, for any purposes beyond the scope of the access granted in this Agreement or in a manner that circumvents contractual usage restrictions or that exceeds any applicable Usage Parameters; (b) license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share or otherwise make any portion of the XtendLive Service available for access by third parties except as expressly provided in this Agreement (it being understood that providing Policyholders access to Customer’s Hub in accordance with this Agreement is not a violation of this Section 2.6(b)); (c) access or use the XtendLive Service for the purpose of developing competitive products or services, or for benchmarking or competitive purposes; (d) reverse engineer, disassemble, decompile, decode, copy, adapt, or otherwise attempt to derive or gain access to any software component of the XtendLive Service, in whole or in part; (e) use the XtendLive Service in any way to store, transmit, or upload any material or content that violates or infringes upon the rights of a third party, including contract, intellectual property, privacy, or publicity rights; (f) upload, distribute, or disseminate any unlawful, defamatory, harassing, abusive, fraudulent, obscene, or otherwise objectionable content through or in connection with the XtendLive Service; (g) remove, alter, or obscure any proprietary rights notices of XtendLive or its licensors on or within any part of the XtendLive Service; (h) interfere with or disrupt the integrity or performance of the XtendLive Service, or any related system, network, or data; (i) take any action that imposes an unreasonable or disproportionately large load on the XtendLive Service or its underlying infrastructure; (j) bypass or breach any security device or protection used by the XtendLive Service or otherwise attempt to gain unauthorized access to the XtendLive Service or its related systems or networks; (k) frame, mirror, or utilize framing techniques to enclose the XtendLive Service or any portion thereof; (l) use any meta tags, hidden text, robots, spiders, crawlers, or other tools, whether manual or automated, to scrape, index, mine, republish, redistribute, transmit, sell, license or download the XtendLive Service or the personal information of others without XtendLive’s prior written permission; (m) use the XtendLive Service to store or transmit any malicious code, files, scripts, agents or programs (including viruses, worms, time bombs, and trojan horses); or (n) upload to or transmit through the XtendLive Service any Sensitive Data described in Section 8.3.
2.6 Third-Party Products. The XtendLive Service may contain links to, or otherwise allow Customer to connect to or use, certain third-party products, data, services, websites, applications, or APIs (collectively, “Third-Party Products”). Third-Party Products are subject to their own terms and conditions, which are solely between Customer and the applicable provider. If Customer does not agree to abide by the applicable terms for any Third-Party Product, Customer should not connect to or use that Third-Party Product. By authorizing XtendLive to transmit Customer Data to or from a Third-Party Product in connection with the XtendLive Service, Customer represents and warrants that it has all right, power, and authority to provide such authorization.
2.7 Suspension. Notwithstanding anything to the contrary in this Agreement, XtendLive may suspend Customer’s and any Authorized User’s access to or use of all or any portion of the XtendLive Service if: (a) XtendLive receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires XtendLive to do so; (b) XtendLive believes, in its good-faith and reasonable discretion, that (i) Customer or any Authorized User has materially failed to comply with this Agreement, including payment obligations, (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with the XtendLive Service, or (iii) Customer’s or any Authorized User’s use of the XtendLive Service disrupts or poses a security risk to the XtendLive Service or to any other customer or vendor of XtendLive; or (c) this Agreement expires or is terminated. XtendLive shall use commercially reasonable efforts to provide written notice of any suspension to Customer prior to such suspension, or immediately following suspension where prior notice is not reasonably practicable due to security or legal requirements. XtendLive shall use commercially reasonable efforts to resume providing access to the XtendLive Service as soon as reasonably possible after the event giving rise to the suspension is cured. XtendLive will not be liable for any damage, liabilities, losses (including loss of data or profits), or other consequences that Customer or any Authorized User may incur as a result of a suspension effected in accordance with this Section 2.7.
3. CUSTOMER OBLIGATIONS
3.1 Accounts. In order to use the XtendLive Service, each Authorized User must register an account (“Account”). Customer shall ensure that its Authorized Users provide and maintain Account registration information that is true, accurate, current, up to date, and complete. Customer shall not, and shall not permit any Authorized User or other third party to, create an Account or sign up to access the XtendLive Service using a false identity or fictitious name or information. Customer is solely responsible for maintaining the confidentiality of and protecting Customer’s and its Authorized Users’ passwords, license keys, and other access credentials, as applicable, for the Account. Customer is solely responsible for any activity occurring under the Account, including, without limitation, any access of the Account by Authorized Users or sub-accounts created by Authorized Users under the Account, regardless of whether such activity is authorized by Customer. Customer shall notify XtendLive immediately of any unauthorized use of or access to Customer’s or any Authorized User’s Account.
3.2 Customer Administration. Customer may designate an Admin User or Admin Users to administer and manage Customer’s Account and Hub, which includes the right to invite Policyholders and other Authorized Users to access Customer’s Hub, configure Hub settings and content, schedule and manage sessions, and assign permissions and access rights to each Authorized User. Customer acknowledges that, depending on the permissions granted, an Admin User may (a) invite or enable additional Admin Users with similar access, and each such additional Admin User will be deemed an Authorized User under Customer’s Account; (b) view Customer Data, including Policyholder Data, associated with Customer’s Hub; (c) create, edit, and configure Hub content, messaging, and engagement workflows; and (d) act on behalf of Customer with respect to administration of the Hub. Customer is solely responsible and liable for its Admin Users’ administration and management of Customer’s Account and Hub, including the inviting and granting of access to the Hub.
3.3 Authorized Users. Customer shall (a) not permit any person other than Authorized Users to access and use the XtendLive Service; and (b) ensure that Authorized Users use the XtendLive Service solely in accordance with this Agreement and the applicable Usage Parameters. Customer is responsible for its Authorized Users’ compliance with the terms and conditions of this Agreement, and any noncompliance of any Authorized User is deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the XtendLive Service and shall cause Authorized Users to comply with such provisions. Customer shall promptly notify XtendLive of any breach of this Agreement by Customer or any of its Authorized Users.
3.4 Customer Responsibility. Customer is solely responsible for: (a) maintaining the confidentiality of and protecting Customer’s and its Authorized Users’ access credentials for the Account and the use thereof; (b) all information, instructions, content, and materials provided by or on behalf of Customer or any Authorized User in connection with the XtendLive Service, including all Customer Content and Policyholder Data submitted to the Hub; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems, and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) all access to and use of the XtendLive Service directly or indirectly by or through the Customer Systems or its or its Authorized Users’ access credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use; (e) Customer’s communications with, and the content Customer makes available to, Policyholders through the Hub, and Customer’s compliance with all laws applicable to those communications (including the Telephone Consumer Protection Act, CAN-SPAM, applicable state consumer protection laws, and any laws regulating insurance communications); and (f) determining whether the XtendLive Service is appropriate for Customer’s regulatory environment.
3.5 Customer Data. Customer hereby grants to XtendLive a non-exclusive, royalty-free, worldwide license to host, copy, transmit, display, process, and otherwise use (including through the use of subcontractors and service providers) the Customer Data solely to the extent reasonably necessary to provide the XtendLive Service and other services hereunder, to enforce this Agreement, and as otherwise expressly permitted in Section 5.3. Customer is solely responsible for Customer Data, including its legality, reliability, accuracy, and appropriateness, and for determining who will receive access or copies of Customer Data. Customer represents and warrants that: (a) Customer or its licensors own all right, title, and interest in and to Customer Content, or has obtained all necessary rights and licenses to make Customer Content available through the Hub; (b) Customer has provided all required notices to, and obtained all required consents and authorizations from, Policyholders and other data subjects for the collection, use, processing, sharing with XtendLive, and storage of Policyholder Data and other Customer Data as contemplated by this Agreement; (c) Customer’s use of the XtendLive Service, including its communications with Policyholders, complies with all applicable laws, including consumer protection, privacy, electronic communications, and insurance laws; and (d) Customer has all necessary rights and authority to grant the licenses to Customer Data set forth in this Agreement. As between the Parties, Customer is the controller (or analogous role under applicable law) of Customer Data, including Policyholder Data, and XtendLive acts as a processor or service provider on Customer’s behalf with respect to Customer Data.
4. FEES AND TAXES
4.1 Fees. Upon commencement of the Subscription Term, Customer shall pay the applicable Subscription fees set forth on the applicable Order Form (“Subscription Fees”). Except as otherwise set forth in the Order Form, the Subscription Fees payable by Customer will remain fixed during the Subscription Term unless Customer (a) exceeds any Usage Parameters or restrictions specified in the Order Form; or (b) upgrades the Subscription tier, increases the Usage Parameters, or subscribes to any additional features, functionality, or products that are subject to additional fees. Upon any increase in Subscription Fees as described above, Customer shall pay the Subscription Fees for such increase on a pro-rated basis for the remainder of Customer’s then-current Subscription Term, and all applicable Subscription Fees shall renew in full at the start of any subsequent renewal term.
4.2 Payment Terms. All fees are due and payable by Customer in advance, unless otherwise expressly and mutually agreed to by Customer and XtendLive in writing. Customer shall provide XtendLive with either (a) valid and current credit card information or (b) a valid purchase order or alternative payment instrument reasonably acceptable to XtendLive. If Customer provides credit card information, Customer (i) authorizes XtendLive to charge such credit card for all fees payable under the applicable Order Form for the initial Subscription Term and any renewal Subscription Term, and (ii) shall ensure that such credit card information remains current and valid and promptly update it if the credit card expires or is replaced. If the Order Form specifies payment by a method other than credit card, XtendLive will invoice Customer in advance in accordance with the applicable Order Form, and invoiced fees are due and payable by Customer to XtendLive upon Customer’s receipt of the applicable invoice for such fees. If any undisputed invoiced amount is not received by XtendLive by the due date, then without limiting XtendLive’s other rights and remedies, XtendLive may require Customer to pay all reasonable costs, including attorneys’ fees and costs, incurred by XtendLive in collecting such overdue amounts. If payment is not received when due or cannot be charged to Customer in advance, XtendLive reserves the right to suspend or terminate Customer’s and its Authorized Users’ access to the XtendLive Service or terminate this Agreement in accordance with Section 6.2(a). All fees will be paid in U.S. dollars, and except as otherwise expressly provided herein, are non-refundable and non-cancellable.
4.3 Invoice Disputes. If Customer disputes any invoiced amounts, Customer shall provide XtendLive with written notice of the disputed amounts, with supporting documentation, within 30 days of Customer’s receipt of the applicable invoice, and the parties shall cooperate diligently to resolve such dispute in good faith. XtendLive shall not exercise its collection rights under Section 4.2, or its right to suspend access under Section 6.2(a), with respect to any amounts that are the subject of a bona fide dispute, provided that Customer: (a) provides written notice and supporting documentation as required above; (b) cooperates diligently to resolve the dispute; and (c) remits payment of all undisputed amounts in a timely manner.
4.4 Taxes. The Subscription Fees and any other amounts payable by Customer under this Agreement are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”), and Customer is responsible for payment of all such Taxes (other than Taxes based on XtendLive’s income), and any related penalties and interest, arising from the payment of the fees, the delivery of the XtendLive Service, or performance of any services by XtendLive hereunder. To the extent that XtendLive is required by law to pay any such Taxes to any governmental or regulatory authority, XtendLive may invoice Customer for such Taxes and Customer will pay such invoiced amounts in accordance with this Agreement.
4.5 Future Functionality. Customer agrees that Customer’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by XtendLive regarding future functionality or features.
5. INTELLECTUAL PROPERTY OWNERSHIP; FEEDBACK
5.1 XtendLive Proprietary Rights. As between Customer and XtendLive, XtendLive or its licensors retain all right, title, and interest, including all intellectual property rights, in and to the XtendLive Property and any and all modifications, enhancements, and improvements thereto. XtendLive reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party, any intellectual property rights or other right, title, or interest in or to the XtendLive Property.
5.2 Customer Proprietary Rights. As between XtendLive and Customer, Customer retains all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer may obtain copies of the Customer Data from the XtendLive Service at any time during the Subscription Term. “Customer Property” means the Customer Data.
5.3 No Training; Usage Data; Aggregated Data. Without limiting Section 2.4, XtendLive shall not use Customer Data to train or fine-tune any artificial intelligence or machine learning model, and shall not sell Customer Data or use Customer Data for the benefit of any third party. Except as set forth in the foregoing sentence and subject to Section 8 (Data Protection), XtendLive has the right to (a) collect, generate, and process information, metrics, analytics, and data relating to the use and performance of the XtendLive Service (collectively, “Usage Data”); and (b) use Usage Data for XtendLive’s internal purposes of operating, securing, monitoring, supporting, and improving the XtendLive Service, and for any other lawful purposes; provided that XtendLive will only disclose Usage Data to third parties, including subcontractors, for the purposes of facilitating the XtendLive Service, to improve, test, and maintain the XtendLive Service, to perform its other obligations and exercise its rights under this Agreement, or as otherwise required by law. In addition, notwithstanding anything to the contrary in this Agreement, XtendLive may monitor Customer’s use of the XtendLive Service and collect and compile aggregated, anonymized, or deidentified data or information of similar form that is related to or derived from Customer Data or Usage Data and that does not permit identification of Customer, any Authorized User, or any other individual (“Aggregated Data”). As between XtendLive and Customer, all right, title, and interest in Aggregated Data, and all intellectual property rights therein, belong to and are retained solely by XtendLive. XtendLive may (1) make Aggregated Data available to third parties, including its other customers, in compliance with applicable law; and (2) use Aggregated Data to the extent and in the manner permitted under applicable law.
5.4 Feedback. Customer acknowledges that if Customer or any of its Authorized Users submits or transmits any ideas, inventions, suggestions for improvement or discussions regarding any aspect of the XtendLive Service (or any components thereof) or any other XtendLive products or services, including without limitation, the functioning, features, and other characteristics thereof (collectively, “Feedback”), XtendLive is free to use such Feedback without compensation or attribution to Customer or any Authorized User, and Customer hereby grants to XtendLive a worldwide, irrevocable, royalty free, non-exclusive, sublicensable and transferable license under all intellectual property rights in and to the Feedback for XtendLive to use for any purpose; provided that XtendLive shall not identify Customer or any Authorized User as the source of the Feedback without Customer’s prior written approval.
6. TERM AND TERMINATION
6.1 Term; Renewal. Unless earlier terminated in accordance with this Agreement, this Agreement commences on the Effective Date and continues for the Subscription Term. No later than 60 days before the end of the then-current Subscription Term, XtendLive shall notify Customer in writing of the upcoming renewal date, the applicable terms (including any updated Subscription Fees or version of this Agreement), and the deadline for non-renewal. Unless either Party provides written notice of non-renewal at least 30 days prior to the end of the then-current Subscription Term, the Subscription Term will automatically renew for a successive term equal to the initial Subscription Term (or one year, whichever is shorter). If the Parties wish to modify pricing, scope, or other commercial terms for a renewal term, they shall negotiate an updated Order Form in good faith prior to the renewal date.
6.2 Termination. Either Party may terminate this Agreement immediately upon written notice if the other Party (a) materially breaches its obligations under this Agreement and does not remedy such material breach within 30 days of the date on which the breaching Party receives written notice of such breach from the non-breaching Party; or (b) becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership or liquidation, in any jurisdiction, that is not dismissed within 60 days of its commencement, or makes an assignment for the benefit of creditors.
6.3 Effect of Termination. Upon expiration or termination of this Agreement, (a) Customer’s and its Authorized Users’ right to access and use the XtendLive Service will terminate, and Customer will cease, and ensure its Authorized Users’ cease, all use of the XtendLive Service; and (b) except in the event of termination by Customer in accordance with Section 6.2(a) above, all outstanding fees will be immediately due and payable, including, without limitation, any Subscription Fees due and payable for the remainder of the then-current Subscription Term. For a period of 30 days following the expiration or termination of this Agreement, XtendLive will provide Customer limited access to the XtendLive Service for the purpose of exporting any Customer Property stored and available in the XtendLive Service. After such 30-day period XtendLive will have no further obligation with respect to any Customer Data, and may delete Customer Data in accordance with its standard data retention practices. This Section and Sections 1, 4, 5, 7, 9, 10, 11, 12, 13, and 14 survive any termination or expiration of this Agreement.
7. CONFIDENTIALITY
7.1 Definition. From time to time during the Subscription Term, either Party may disclose or make available to the other Party confidential or proprietary information about its products, services, intellectual property, and business, including any third party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media that: (a) is marked, designated, or otherwise identified as “confidential” or something similar at the time of disclosure or within a reasonable period of time thereafter; or (b) would be considered confidential by a reasonable person given the nature of the information or the context of its disclosure (collectively, “Confidential Information”). Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving Party; (ii) rightfully known by the receiving Party at the time of disclosure; (iii) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (iv) independently developed by the receiving Party without use of, reference to, or reliance upon the disclosing Party’s Confidential Information.
7.2 Use and Protection. The receiving Party shall (a) protect the confidentiality of the disclosing Party’s Confidential Information using the same degree of care that it takes to protect its own confidential information and in no event using less than reasonable care; (b) use the Confidential Information solely for the purpose of fulfilling its obligations and exercising its rights under this Agreement; and (c) not disclose to any third party or cause to be disclosed any of the disclosing Party’s Confidential Information, except as expressly permitted in this Section, unless authorized in writing by the disclosing Party. The receiving Party may disclose Confidential Information of the disclosing Party to its employees, contractors, agents, and other representatives (collectively, “Representatives”) who have a legitimate need to know; provided that the receiving Party remains responsible for its Representatives’ compliance with this Section 7, and such Representatives are bound by confidentiality obligations no less protective than this Section 7.
7.3 Required Disclosures. The receiving Party may disclose Confidential Information to the extent required in order to comply with the order of a court or other governmental body of competent jurisdiction, or as otherwise necessary to comply with applicable law; provided that, to the extent permitted by law, the receiving Party first provides to the disclosing Party prompt notice of such required disclosure to enable the disclosing Party to seek a protective order or other confidential treatment.
7.4 Return or Destruction. Upon the expiration or termination of the Agreement, or at the disclosing Party’s request, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Notwithstanding the foregoing, the receiving Party may retain copies of the disclosing Party’s Confidential Information (a) to the extent required by applicable law, regulation, or order of a court or governmental authority; (b) that are contained in automated backup, archival, or disaster-recovery systems made in the ordinary course of business and not readily accessible for ongoing use, provided such copies are deleted in accordance with the receiving Party’s standard retention schedule; or (c) subject to a bona fide litigation hold. Confidential Information so retained shall remain subject to the confidentiality and use restrictions of this Section 7 for so long as it is retained.
8. DATA PROTECTION AND SECURITY
8.1 Security Measures. XtendLive shall implement and maintain appropriate industry-standard technical and organizational security measures reasonably designed to prevent unauthorized access to and disclosure of unencrypted Customer Data hosted in the XtendLive Service or otherwise in XtendLive’s possession or control. XtendLive shall notify Customer in writing within 48 hours after becoming aware of a Security Incident. XtendLive shall promptly investigate any Security Incident, keep Customer reasonably informed of its investigation and remediation efforts, and cooperate with Customer in any required notifications to regulators or affected individuals.
8.2 Personal Data. As between the parties, with respect to the collection, transmission, disclosure, processing, and use of any personally identifiable information through or in connection with the use of the XtendLive Service (“Personal Data”), that is subject to any applicable laws, rules, or regulations pertaining to data privacy or data security (“Data Protection Laws”), Customer is the data controller and XtendLive is a data processor or service provider as such terms are defined pursuant to Data Protection Laws. Customer represents and warrants that with respect to any Customer Data (including, without limitation, Personal Data) transmitted, hosted, stored or processed, or otherwise provided by Customer and its Authorized Users to XtendLive in connection with the use of the XtendLive Service, that: (a) Customer is in compliance with all Data Protection Laws; and (b) Customer has made all disclosures to, and obtained all permissions and approvals from, each applicable data source as may be necessary or required to transmit such data through the XtendLive Service.
8.3 Sensitive and Restricted Data. Customer will not provide (or cause or permit any Authorized User or other person to provide) any Sensitive Data to XtendLive for processing under the Agreement, and XtendLive will have no liability whatsoever for Sensitive Data, whether in connection with a Security Incident or otherwise. “Sensitive Data” means (a) social security number, tax file number, passport number, driver’s license number, or similar government-issued identifier (or any portion thereof); (b) credit or debit card number, bank account number, or other payment instrument information (other than the truncated last four digits of a credit or debit card); (c) employment, financial, credit, genetic, biometric, or health information, including any “protected health information” as defined under HIPAA; (d) “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act (GLBA) and its implementing regulations, including the Federal Trade Commission’s Safeguards Rule; (e) insurance claims data, underwriting data, or insurance policy information that constitutes nonpublic personal information; (f) racial, ethnic, political, or religious affiliation, trade union membership, information about sexual life or sexual orientation, or criminal record; (g) account passwords; (h) any other information that falls within the definition of “special categories of data,” “sensitive personal information,” “sensitive personal data,” or any analogous term under applicable Data Protection Laws; and (i) any other data Customer does not have the right to process. The XtendLive Service is not designed for, and Customer shall not use the XtendLive Service to process, Sensitive Data. If Customer or any Authorized User uploads, submits, or transmits Sensitive Data to the XtendLive Service in violation of this Section 8.3, (1) Customer will be solely responsible for such Sensitive Data and any resulting claims, damages, or regulatory consequences; (2) XtendLive may, in its sole discretion and upon notice to Customer, delete or quarantine such Sensitive Data and/or suspend the affected Account; and (3) such submission will constitute a material breach of this Agreement by Customer.
9. WARRANTIES AND DISCLAIMER
9.1 Warranties. XtendLive warrants to Customer that the XtendLive Service, when used in accordance with this Agreement and the Documentation, will perform materially as described in the Documentation. If the XtendLive Service fails to perform as warranted under Section 9.1, Customer’s sole remedy is to notify XtendLive in writing, whereupon XtendLive shall have 30 days to repair or replace the non-conforming service. If XtendLive cannot cure within that period, Customer may terminate the affected Subscription and receive a pro-rata refund of prepaid fees for the unused Subscription Term.
9.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE XTENDLIVE SERVICE (AND ANY PART THEREOF) AND ANY OTHER MATERIALS, CONTENT, OR SERVICES PROVIDED OR MADE AVAILABLE BY XTENDLIVE, ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND XTENDLIVE AND ITS LICENSORS HEREBY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUALITY, TITLE, OR NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. XTENDLIVE DOES NOT WARRANT OR MAKE ANY GUARANTEE THAT DEFECTS WILL BE CORRECTED OR THAT THE XTENDLIVE SERVICE (OR ANY PART THEREOF (INCLUDING ANY AI FEATURES IF AND WHEN MADE AVAILABLE)) OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY XTENDLIVE: (A) WILL MEET CUSTOMER’S OR ANY AUTHORIZED USER’S REQUIREMENTS; (B) WILL BE COMPATIBLE WITH CUSTOMER’S OR ANY AUTHORIZED USER’S NETWORK, COMPUTER, OR ANY THIRD PARTY PRODUCTS; (C) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (D) WILL BE ACCURATE OR RELIABLE. XTENDLIVE IS NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD XTENDLIVE LIABLE, FOR THE CONDUCT OF THE PROVIDERS OF ANY THIRD PARTY PRODUCTS, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTY PRODUCTS RESTS ENTIRELY WITH CUSTOMER.
10. INDEMNIFICATION
10.1 XtendLive Indemnification. XtendLive shall (a) defend Customer from and against any claim, demand, suit, action, or proceeding (“Claim”) brought by a third party against Customer or its officers, directors, employees, contractors, representatives, or agents (collectively, “Customer Indemnitees”) alleging that the XtendLive Service (or any part thereof), or any use thereof in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights; and (b) indemnify the Customer Indemnitees from any damages, attorney fees, and costs finally awarded against the Customer Indemnitees as a result of, or for amounts paid by the Customer Indemnitees pursuant to a settlement of, such Claim. If XtendLive receives information about an infringement or misappropriation claim related to the XtendLive Service, XtendLive may in its discretion and at no cost to Customer: (i) modify or replace the XtendLive Service, or component or part thereof, so that it no longer infringes or misappropriates; or (ii) obtain the right for Customer to continue use of the XtendLive Service in accordance with this Agreement. If XtendLive determines that neither of the foregoing options is reasonably commercially available, XtendLive may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer, and provide Customer a prorated refund of any prepaid fees covering the remainder of the Subscription Term for the terminated Subscription. Notwithstanding the foregoing, XtendLive will have no obligation under this Section or otherwise with respect to any infringement or misappropriation claim to the extent that the alleged infringement or misappropriation arises from: (1) use of the XtendLive Service in combination with data, software, hardware, equipment, or technology not provided by XtendLive or authorized by XtendLive in writing; (2) modifications to the XtendLive Service not made by XtendLive or its authorized representatives; (3) Customer Property; (4) Third-Party Products; (5) any Beta Features; or (6) Customer’s or any Authorized User’s continued use of allegedly infringing versions of the XtendLive Service after being notified thereof or after being informed of modifications that would have avoided the alleged infringement. THIS SECTION STATES XTENDLIVE’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT AND MISAPPROPRIATION CLAIMS AND ACTIONS.
10.2 Customer Indemnification. Customer shall (a) defend XtendLive from and against any Claim brought by a third party, including any Authorized User, against XtendLive or its officers, directors, employees, contractors, representatives, or agents (collectively, “XtendLive Indemnitees”) (i) alleging that the Customer Property, or any use of the Customer Property in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights; (ii) based on Customer’s or any Authorized User’s (1) negligence or willful misconduct; (2) use of the XtendLive Service in a manner not authorized by this Agreement; or (3) use of the XtendLive Service in combination with data, software, hardware, equipment or technology not provided by XtendLive or authorized by XtendLive in writing; and (b) indemnify the XtendLive Indemnitees from any damages, attorney fees, and costs finally awarded against the XtendLive Indemnitees as a result of, or for amounts paid by the XtendLive Indemnitees pursuant to a settlement of, such Claim.
10.3 Procedure. The Party to be indemnified shall (a) promptly notify the indemnifying Party in writing of any claim asserted against the indemnified Party (provided that, a delay in providing notice does not excuse the indemnifying Party’s obligations unless the indemnifying Party is prejudiced by such delay); (b) give the indemnifying Party sole control of the defense and settlement thereof; and (c) at the indemnifying Party’s reasonable request and expense, cooperate and assist in such defense. The indemnifying Party enter into any settlement that involves an admission of liability, negligence, or other culpability of the indemnified Party or requires the indemnified Party to contribute to the settlement without the indemnified Party’s prior written consent. The indemnified Party may participate and retain its own counsel at its own expense.
11. LIMITATIONS OF LIABILITY
EXCEPT FOR A PARTY’S BREACH OF SECTION 7 (CONFIDENTIALITY), A PARTY’S INDEMNITY OBLIGATIONS IN SECTION 10, OR A PARTY’S GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT, IN NO EVENT WILL (A) A PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (1) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (2) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (3) LOSS OF GOODWILL OR REPUTATION; (4) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (5) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE; AND (B) A PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE TO XTENDLIVE UNDER THIS AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; PROVIDED THAT, NOTWITHSTANDING THE FOREGOING, EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO ANY BREACH OF SECTION 7 (CONFIDENTIALITY) OR ITS INDEMNITY OBLIGATIONS IN SECTION 10, WILL NOT EXCEED $1,000,000.
12. INSURANCE
12.1 XtendLive’s Coverage. During the Subscription Term, XtendLive shall maintain, at its sole expense, insurance coverage from carriers rated at least A-VII by A.M. Best with Worker’s Compensation as required by applicable law along with Commercial General Liability , Professional Liability / Errors & Omissions (including Cyber Liability, which may be obtained on a standalone basis or as part of the Professional Liability / Errors & Omissions coverage),; and Employer’s Liability , in each case in reasonable amounts. Upon Customer’s written request, XtendLive shall provide a certificate of insurance evidencing the foregoing coverages.
12.2 Notice of Cancellation. XtendLive shall use commercially reasonable efforts to provide Customer at least 30 days’ prior written notice of any cancellation, except where such notice is not feasible due to circumstances beyond XtendLive’s reasonable control.
13. GOVERNING LAW; DISPUTE RESOLUTION
13.1 Governing Law. This Agreement is governed by the laws of the State of California, other than its choice of law provisions. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
13.2 Informal Negotiation. In the event of any dispute, claim, or controversy (“Dispute”) arising out of, relating to, or in connection with this Agreement, the Parties shall use their good faith best efforts to resolve the Dispute as quickly as possible through negotiation, including, if necessary, meetings between executives of each Party with authority to settle the Dispute.
13.3 Exclusive Jurisdiction. If the Parties have not resolved a Dispute within 30 days after the initiation of informal negotiation as described in Section 13.2, either Party may bring a legal action or proceeding. Any legal action or proceeding arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in the City and County of San Francisco, California, and each Party irrevocably consents to the personal jurisdiction and venue of such courts and waives any objection based on inconvenient forum.
14. MISCELLANEOUS
14.1 Entire Agreement. This Agreement, together with any Order Forms and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. Any terms or conditions stated in a Customer purchase order or other ordering document (other than an Order Form) are void. In the event of any inconsistency or conflict between the documents forming this Agreement, the following order of precedence governs: (a) first, the applicable Order Form for terms specific to that Order Form; (b) second, this Agreement; and (c) third, any other documents incorporated herein by reference.
14.2 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the applicable Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, by certified or registered mail with return receipt requested (with all fees pre-paid), or email (with confirmation of transmission), and is deemed delivered (a) upon personal delivery; (b) with respect to certified or registered mail, the later to occur of receipt or refusal of delivery, or five business days after being deposited in the mail as required above; and (c) upon confirmation of receipt if sent by email. All email Notices to XtendLive must be sent to legal@xtendlive.com. Notwithstanding the foregoing, email is not sufficient for notices of material breach, termination, or an indemnifiable claim.
14.3 Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
14.4 Versioning and Updates. This is Version 1.0 of the XtendLive Enterprise Terms of Service. XtendLive may release updated versions from time to time. Each Order Form references the specific version in effect at the time of execution, which governs for the duration of that Order Form’s Subscription Term. XtendLive will provide Customer with at least 60 days’ advance notice of any material new version by emailing the address on Customer’s account or by posting notice at https://xtendlive.com/terms. At renewal, the renewal Order Form will identify the then-current version; if Customer does not wish to accept the then-current version, Customer may provide non-renewal notice in accordance with Section 6.1.
14.5 Waiver. No failure or delay by either Party in exercising any right or remedy available to it in connection with this Agreement will constitute a waiver of such right or remedy. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the Party granting the waiver.
14.6 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
14.7 Assignment. Neither Party may assign any of its rights or delegate any of its obligations hereunder, whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety without the other Party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relates. If a Party assigns this Agreement to a direct competitor of the other Party, the non-assigning Party may terminate this Agreement upon 30 days’ written notice. Any purported assignment or delegation in violation of this Section 14.7 will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
14.8 Export Regulation. The XtendLive Service utilizes software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the XtendLive Service or the underlying software or technology to, or make the XtendLive Service or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the XtendLive Service or the underlying software or technology available outside the US.
14.9 US Government Rights. Each of the Documentation and the software components that constitute the XtendLive Service is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the XtendLive Service and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
14.10 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Customer, Section 2.6, may cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
14.11 Language; Construction. This Agreement was drafted in the English language, and this English language version of the Agreement is the original, governing instrument of the understanding between the Parties. In the event of any conflict between the English version of this Agreement and any translation, the English version will prevail. Section headings are provided solely for reference purposes and in no way define, limit, interpret, or describe the scope or extent of such section or in any way affect this Agreement. When used in this Agreement, the term “including” means “including without limitation,” unless expressly stated to the contrary.
14.12 Publicity. During the Subscription Term,XtendLive may identify Customer as a customer of XtendLive by listing Customer’s name or logo, or both, on XtendLive’s customer list and website (and all use thereof and goodwill arising therefrom shall inure to the sole and exclusive benefit of Customer), unless otherwise expressly set forth in the applicable Order Form. Otherwise, neither Party may use the name, logo, or other trademarks of the other Party for any purpose without the other Party’s prior written approval.
14.13 Independent Contractors; No Third Party Rights. The parties hereto are independent contractors, and no agency, partnership, joint venture, or other relationship is intended or created by Customer’s access to or use of the XtendLive Service. This Agreement does not create any third party beneficiary rights, nor do the parties intend for it to be interpreted or construed to confer any rights or remedies on or to any third parties.
