SUBSCRIPTION AGREEMENT

SpaceRunner Subscription Agreement

This SpaceRunner Subscription Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of the Service Offerings (as defined below) as an Account Owner and is an agreement between Xyicon (“Xyicon,” “we,” “us,” or “our”) and you or the entity you represent (“you”). This Agreement takes effect when you click an “I Accept the Terms and Conditions” check box presented with these terms and conditions (the “Effective Date”). If you register for a free trial for our Services, this Agreement will also govern that free trial. You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. You may not access the Services if you are our direct competitor, except with our prior written consent. In addition, you may not access the Services for purposes of monitoring performance or functionality, or for any other benchmarking or competitive purposes. Please see Section 14 for definitions of certain capitalized terms used in this Agreement.

1. Use of the Service Offerings.

1.1 Generally. You may access and use the Service Offerings in accordance with this Agreement. You will adhere to all laws, rules, and regulations applicable to your use of the Service Offerings, including the Acceptable Use Policy and the other Policies as defined in Section 14.

1.2 Your Account. To access the Services, you must create a Xyicon account associated with a valid e-mail address. You may only create one account per email address. You are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents) and, except to the extent caused by our breach of this Agreement, we and our affiliates are not responsible for unauthorized access to your account. You will contact us immediately if you believe an unauthorized third party may be using your account or if your account information is lost or stolen. You may terminate your account and this Agreement at any time in accordance with Section 7.

1.3 Support to You. Business hours are 9 a.m. to 5 p.m. Pacific Time, Monday through Friday. Email, chat, and phone support are available during normal business hours. WalkMe tutorials are available online at all times to guide you and your Users through the SpaceRunner experience and features. We are closed for business during these holidays: New Year’s Day, President’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and the Friday after, Christmas Eve, and Christmas Day.

1.4 Third Party Content. Third Party Content, such as software applications provided by third parties, may be made available directly to you by other companies or individuals under separate terms and conditions, including separate fees and charges. Because we may not have tested or screened the Third Party Content, your use of any Third Party Content is at your sole risk.

1.5 Changes to the Service Offerings. We may change, discontinue, or deprecate any of the Service Offerings (including the Service Offerings as a whole) or change or remove features or functionality of the Service Offerings from time to time. We will notify you of any material change to or discontinuation of the Service Offerings.

2. Free Trial. We offer our Service Offerings to you under a 14 day free trial period program. The trial period begins immediately upon account activation. The free trial period only applies to new customers and does not apply to existing customers who have a subscription plan. Xyicon will also not honor a free trial period for customers who were once paying subscribers, cancelled, and then decided to reinstate their subscription to SpaceRunner. At any time during the 14 day free trial period, you can cancel your account by i) closing your account online in the SpaceRunner Billing Portal for all Services or ii) providing us written notice at support@xyicon.com and you will not be billed. We do not ask for credit card information to sign up for the 14 day free trial period. If you forget to cancel within the 14 day free trial period, our account WILL NOT BE CHARGED and your access will automatically be cancelled by our customer support team. You will not incur any charges. In order to continue using SpaceRunner after the 14-day free trial period, you will be asked to subscribe to one of our subscription plans.

YOUR CONTENT, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO AT LEAST THE LOWEST TIER OF SERVICES THAT COVERS THE ACTUAL NUMBER OF XYICONS AND USERS USED DURING THE TRIAL. YOU MAY ALSO EXPORT YOUR CONTENT BEFORE THE END OF THE TRIAL PERIOD, ALTHOUGH SUCH EXPORT WILL NOT CONTAIN YOUR CUSTOMIZED PLACEMENT OF XYICONS WITHIN YOUR SPACERUNNER SPACE.

3. Security, Privacy & Data Management.

3.1 Xyicon Security. Without limiting Section 10 or your obligations under Section 4.2, we will implement reasonable and appropriate measures designed to help you secure Your Content against accidental or unlawful loss, access or disclosure, as described more fully in Addendum A: Data Security Standards.

3.2 Data Privacy. In providing the Service Offerings to you, it may be necessary for us to obtain, receive, or collect data or information, including Your Content, from you (collectively “Project Data”). In such cases, you grant Xyicon and its partners, vendors, and affiliates a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license to use, compile, distribute, display, store, process, reproduce, or create derivative works of the Project Data solely to facilitate the Service Offerings. In addition, you grant Xyicon a license to aggregate the Project Data for use in an anonymous manner in support of Xyicon’s marketing and sales activities. You also grant Xyicon the right to copy and maintain such material and content on Xyicon’s servers (or the servers of its suppliers) during the Term of this Agreement. You represent and warrant that you have obtained all rights, permissions, and consents necessary to use and transfer the Project Data in conjunction with your use of the Service Offerings. You further represent that the Project Data does not include patient information or records subject to the Health Insurance Portability and Accountability Act (“HIPAA”). Subject to this Section 3.2, Xyicon agrees that it will not give any third party access to Project Data. Notwithstanding the foregoing, Xyicon may disclose Project Data as required by applicable law or by proper legal or governmental authority. Xyicon will notify you within fourteen (14) days of any such legal or governmental demand and reasonably cooperate with you in any effort to seek a protective order or otherwise to contest such required disclosure, at your expense, including but not limited to attorney’s fees.

3.3 Data Management. You possess and retain all right, title, and interest in and to Your Content. You may access and export any of Your Content in our possession at any time prior to the termination of this Agreement, through the user interface of the Service Offerings. We will facilitate such access and copying promptly after your request.

4. Your Responsibilities

4.1 Your Content. You are solely responsible for the development, operation, maintenance, and use of Your Content. For example, you are solely responsible for: (a) adding Users, uploading SpaceRunner space, placing Xyicons onto the space, entering, revising, and deleting Your Content in a grid, and exporting Your Content; (b) ensuring that, prior to uploading a SpaceRunner space, any reproducible prints, CAD files, and PDF files are owned by you or include a copyright release which gives you the legal right to modify and reproduce the original design; (c) compliance of Your Content with the Acceptable Use Policy, the other Policies, and the law; and (d) any claims relating to Your Content.

4.2 Other Security and Backup. You are responsible for properly configuring and using the Service Offerings and taking your own steps to maintain appropriate security, protection and backup of Your Content, including protecting your Xyicon account from unauthorized access and routinely exporting and archiving Your Content. Xyicon log-in credentials generated by the Services are for your internal use only and you may not sell, transfer or sublicense them to any other entity or person, except that you may disclose your log-in credentials to your agents and subcontractors performing work on your behalf. 

4.3 User Violations. You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this Agreement, Your Content or use of the Service Offerings. You are responsible for Users’ use of Your Content and the Service Offerings. You will ensure that all Users comply with your obligations under this Agreement and that the terms of your agreement with each User are consistent with this Agreement. If you become aware of any violation of your obligations under this Agreement by a User, you will immediately terminate such User’s access to Your Content and the Service Offerings.

5. Fees and Payment

5.1. Service Fees.

BY CREATING AN ACCOUNT AND SIGNING UP FOR THE SERVICE OFFERINGS, YOU UNDERSTAND THAT YOU ARE SIGNING UP FOR A MONTHLY SUBSCRIPTION SERVICE. WE CALCULATE AND BILL FEES MONTHLY, AND YOUR CREDIT CARD ON FILE WILL BE AUTOMATICALLY CHARGED AT THE BEGINNING OF EACH BILLING CYCLE UNLESS YOU CANCEL. THE FIRST DAY OF THE BILLING CYCLE BEGINS ON THE DATE YOU CREATE AN ACCOUNT AND RECEIVE ACCESS TO THE SERVICES. ALL AMOUNTS PAYABLE UNDER THIS AGREEMENT WILL BE MADE WITHOUT SETOFF OR COUNTERCLAIM, AND WITHOUT ANY DEDUCTION OR WITHHOLDING. FEES FOR ANY NEW SERVICE OR NEW FEATURE OF A SERVICE WILL BE EFFECTIVE WHEN WE POST UPDATED FEES ON THE XYICON SITE UNLESS WE EXPRESSLY STATE OTHERWISE IN A NOTICE. WE MAY MODIFY, INCREASE, DECREASE, OR ADD OR SUBTRACT NEW FEES FOR ANY EXISTING SERVICES BY GIVING YOU AT LEAST 30 DAYS’ ADVANCE NOTICE.

5.2 Overdue Charges. We may charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.

5.3 This section intentionally left blank. 

5.4 Payment Disputes. We will not exercise our rights under Section 5.2 (Overdue Charges) if you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

5.5 Credit Card Expiration. During the month prior to the expiration of the credit card on file for your account, we will send out up to three reminder e-mails to update your credit card information. If your credit card is declined, has expired, or otherwise cannot be charged, we will attempt to charge you r credit card once a day for up to thirty (30) days, during which time your account will remain active with no interruption to your access of the Service Offerings. If, after thirty (30) days, your credit card still cannot be successfully charged, then your account will be terminated pursuant to Section 7 and you will be responsible for payment of all outstanding fees on your account.

5.6 Refund Policy. Fees are based on Service Offerings purchased and not actual usage, and payment obligations are non-cancellable and fees paid are non-refundable.

5.7 Taxes. Our fees do not include 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 whatsoever (collectively, “Taxes”). You are responsible or paying all Taxes associated with your purchases hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible under this Section 5.7, we will invoice you and you will pay that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.

6. Temporary Suspension

6.1 Generally. We may suspend your or any User’s right to access or use any portion or all of the Service Offerings immediately upon notice to you if we determine:

(a) your or a User’s use of our registration for the Service Offerings

(i) poses a security risk to the Service Offerings or any third party,

(ii) may adversely impact the Service Offerings or the systems or Content of any other Xyicon customer,

(iii) may subject us, our affiliates, or any third party to liability, or

(iv) may be fraudulent;

(b) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.

6.2 Effect of Suspension. If we suspend your right to access or use any portion or all of the Service Offerings:

(a) you remain responsible for all fees and charges you and your Users have incurred through the date of suspension;

(b) you remain responsible for any applicable fees and charges for any Service Offerings to which you or your Users continue to have access, as well as applicable data storage fees and charges, and fees and charges for in-process tasks completed after the date of suspension;

(c) we will not erase any of Your Content as a result of your suspension, except as specified elsewhere in this Agreement. Our right to suspend your or any User’s right to access or use the Service Offerings is in addition to our right to terminate this Agreement pursuant to Section 7.2.

7. Term; Termination

7.1. Term. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated by you or us in accordance with Section 7.2.

7.2 Termination.

(a) Termination for Convenience. You may terminate this Agreement for any reason by: (i) closing your account online in the SpaceRunner Billing Portal for all Services or ii) providing us written notice at support@xyicon.com. We may terminate this Agreement for any reason by providing you 30 days advance notice. 

(b) Termination for Cause.

(i) By Either Party. Either party may terminate this Agreement for cause upon 30 days advance notice to the other party if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the 30 day notice period.

(ii) By Us. We may also terminate this Agreement immediately upon notice to you (A) for cause, if any act or omission by you or any User results in a suspension described in Section 6.1, or if an expired credit card for your account has not been successfully updated after thirty (30) days as described in Section 5.5, (B) if our relationship with a third party partner who provides software or other technology we use to provide the Service Offerings expires, terminates or requires us to change the way we provide the software or other technology as part of the Services, (c) if we believe providing the Services could create a substantial economic or technical burden or material security risk for us, (D) in order to comply with the law or requests of governmental entities, or (E) if we determine use of the Service Offerings by you or any Users or our provision of any of the Service Offerings to you or any Users has become impractical or unfeasible for any legal or regulatory reason.

7.3. Effect of Termination.

(a) Generally. Upon any termination of this Agreement:

(i) all your rights under this Agreement immediately terminate;

(ii) you remain responsible for all fees and charges you have incurred through the date of termination, including fees and charges for in-process tasks completed after the date of termination;

(iii) Sections 4.1, 7.3, 8 (except the license granted to you in Section 8.4), 9, 10, 11, 13 and 14 will continue to apply in accordance with their terms.

(b) Post-Termination Assistance. Unless we terminate your use of the Service Offerings pursuant to Section 7.2(b), during the 90 days following termination:

(i) we will not erase any of Your Content as a result of the termination;

(ii) you may retrieve Your Content from the Services only if you have paid any charges for any post-termination use of the Service Offerings and all other amounts due; and

(iii) we will provide you with the same post-termination data retrieval assistance that we generally make available to all customers.

YOUR CONTENT, INCLUDING YOUR PLACEMENT OF XYICONS ON THE SPACERUNNER SPACE, WILL BE PERMANENTLY DELETED AFTER 90 DAYS HAVE ELAPSED FOLLOWING TERMINATION. Any additional post-termination assistance from us is subject to mutual agreement by you and us.

8. Proprietary Rights

8.1 Your Content. As between you and us, you or your licensors own all right, title, and interest in and to Your Content. Except as provided in this Section 8, we obtain no rights under this Agreement from you or your licensors to Your Content, including any related intellectual property rights. You consent to our use of Your Content to provide the Service Offerings to you and any Users. We may disclose Your Content to provide the Service Offerings to you or any Users or to comply with any request of a governmental or regulatory body (including subpoenas or court orders).

8.2 This section is left intentionally blank.

8.3 Adequate Rights. You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to Your Content and Suggestions; (b) you have all rights in Your Content and Suggestions necessary to grant the rights contemplated by this Agreement; and (c) none of Your Content, Suggestions or Users’ use of Your Content, Suggestions or the Services Offerings will violate the Acceptable Use Policy.

8.4 Service Offerings Rights. As between you and us, we or our affiliates or licensors own and reserve all right, title, and interest in and to the Service Offerings. We grant you a limited, revocable, non-exclusive, right to do the following during the Term: (i) access and use the Services solely in accordance with this Agreement; and (ii) use the Xyicon Content solely in connection with your permitted use of the Services. Except as provided in this Section 8.4, you obtain no rights under this Agreement from us or our licensors to the Service Offerings, including any related intellectual property rights.

8.5 Use Restrictions. Neither you nor any User may use the Service Offerings in any manner or for any purpose other than as expressly permitted by this Agreement. Neither you nor any User may, or may attempt to

(a) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Service Offerings,

(b) reverse engineer, disassemble, or decompile the Service Offerings or apply any other process or procedure to derive the source code of any software included in the Service Offerings,

(c) access or use the Service Offerings in a way intended to avoid incurring fees or exceeding usage limits or quotas, or

(d) resell the Service Offerings. All rights granted to you in this Agreement are conditional on your continued compliance with this Agreement, and will immediately and automatically terminate if you do not comply with any term or condition of this Agreement. During and after the Term, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Service Offerings you have used. You may only use the Xyicon Marks in accordance with the Trademark Use Guidelines. 8.6 Suggestions. If you provide any Suggestions to us or our affiliates, we will own all right, title, and interest in and to the Suggestions, even if you have designated the Suggestions as confidential. We and our affiliates will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we may require to document, perfect, and maintain our rights in the Suggestions.

9. Indemnification.

9.1. General. You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) your or any Users’ use of the Service Offerings (including any activities under your Xyicon account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by you or any User; (c) Your Content or the combination of Your Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Your Content or by the use, development, design, production, advertising or marketing of Your Content; or (d) a dispute between you and any User. If we or our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates.

9.2. Process. We will promptly notify you of any claim subject to Section 9.1, but our failure to promptly notify you will only affect your obligations under Section 9.1 to the extent that our failure prejudices your ability to defend the claim. You may:

(a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and

(b) settle the claim as you deem appropriate, provided that you obtain our prior written consent before entering into any settlement. We may, however, assume control of the defense and settlement of the claim at any time at our cost.

10. Disclaimers.

THE SERVICE OFFERINGS ARE PROVIDED “AS IS.” WE AND OUR AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OFFERINGS OR THE THIRD PARTY CONTENT, INCLUDING ANY WARRANTY THAT THE SERVICE OFFERINGS OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT OR THE THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.

11. Limitations of Liability.

WE AND OUR AFFILIATES OR LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH:

(A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY

(I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS,

(II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR,

(III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SLAS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS;

(B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES;

(C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS; OR

(D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.

12. Modifications to the Agreement.

We may modify this Agreement (including any Policies) at any time by posting a revised version on the Xyicon Site or by otherwise notifying you in accordance with Section 13.7. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Service Offerings after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the Xyicon Site regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the beginning of this Agreement.

13. Miscellaneous.

13.1 Confidentiality and Publicity. You may use Xyicon Confidential information only in connection with your use of the Service Offerings as permitted under this Agreement. You will not disclose Xyicon Confidential Information during the Term or at any time during the 5 year period following the end of the Term. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Xyicon Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. You will not issue any press release or make any other public communication with respect to this Agreement or your use of the Service Offerings. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to you or your business endeavors), or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement.

13.2 Force Majeure. We and our affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

13.3 Independent Contractors. We and you are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.

13.4 No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.

13.5 This section is left intentionally blank.

13.6 This section is left intentionally blank.

13.7 Notice.

(a) To You. We may provide any notice to you under this Agreement by:

(i) posting a notice on the Xyicon Site; or

(ii) sending a message to the email address then associated with your account. Notices we provide by posting on the Xyicon Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.

(b) To Us. To give us notice under this Agreement, you must contact Xyicon as follows:

(i) by electronic transmission to support@xyicon.com; or

(ii) by personal delivery, overnight courier or registered or certified mail to Xyicon, 2650 Napa Valley Corporate Drive, Napa, CA 94558. We may update the e-mail or mailing address for notices to us by posting a notice on the Xyicon Site. Notices provided by e-mail or personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.

(c) Language. All communications and notices to be made or given pursuant to this Agreement must be in the English language.

13.8 Assignment. You will not assign this Agreement, or delegate any of your rights under this Agreement, without our prior written consent. Any assignment or transfer in violation of this Section 13.8 will be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.

13.9 No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.

13.10 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.

13.11 Governing Law; Venue. The laws of the State of California, without reference to conflict of law rules, govern this Agreement and any dispute of any sort that might arise between you and us. Any dispute relating in any way to the Service Offerings or this Agreement will be adjudicated in any state court in Napa County, California or federal court in the Northern District of California where you, as a natural person, seek aggregate relief of $10,000 or more, or where you, as a business, seek aggregate relief of $5,000 or more. You consent to exclusive jurisdiction and venue in those courts. We may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our intellectual property or other proprietary rights.

13.12 Entire Agreement; English Language. This Agreement includes the Policies and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. Notwithstanding any other agreement between you and us, the security and data privacy provisions in Section 3 of this Agreement contain our and our affiliates’ entire obligation regarding the security, privacy and confidentiality of Your Content. We will not be bound by, and specifically object to, any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.

14. Definitions.

“Acceptable Use Policy” means the policy currently available at http://www.xyicon.com/about/legal/, as it may be updated by us from time to time.

“Account Owner” means the business or individual or individual acting on behalf of a business who creates a SpaceRunner account in order to use, or cause Users to use, the Service Offerings, whether for the 14-day trial period or one of the various monthly service plans.

“API” means an application program interface. 

“Content” means software (including machine images), data, text, audio, video, images or other content.

“Documentation” means the developer guides, getting started guides, user guides, quick reference guides, and other technical and operations manuals and specifications for the Services located at http://support.xyicon.com, as such documentation may be updated by us from time to time.

“Policies” means the Acceptable Use Policy, the Trademark Use Guidelines, all restrictions described in the Xyicon Content and on the Xyicon Site, and any other policy or terms referenced in or incorporated into this Agreement. Policies do not include whitepapers or other marketing materials referenced on the Xyicon Site.

“Privacy Policy” means the privacy policy currently referenced at http://www.xyicon.com/about/legal/, as it may be updated by us from time to time.

“Service” means each of the SpaceRunner web services (including associated APIs) made available by us or our affiliates.

“Service Offerings” means the Services, the Xyicon Content, the Xyicon Marks, the Xyicon Site, and any other product or service provided by us under this Agreement. Service Offerings do not include Third Party Content.

“SpaceRunner Billing Portal” means the billing page within SpaceRunner that allows Account Owners to manage their billing, including updating or changing their credit card information.

“Suggestions” means suggestions, information, material, or other content that you submit on the Xyicon Site, including any suggested improvements to the Service Offerings, in compliance with the Terms & Conditions of Idea Submissions.

“Term” means the term of this Agreement described in Section 7.1.

“Third Party Content” means Content made available to you by any third party on the Xyicon Site or in conjunction with the Services.

“User” means any individual who has been granted access to a SpaceRunner account by the Account Owner and has created a SpaceRunner log-in credential in order to access or use the Service Offerings.

“Xyicon Confidential Information” means all nonpublic information disclosed by us, our affiliates, our business partners, or any respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Xyicon Confidential Information includes: (a) nonpublic information relating to our or our affiliates or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between you and us or our affiliates. Xyicon Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by you without reference to the Xyicon Confidential Information.

“Xyicon Content” means Content we or any of our affiliates make available in connection with the Services or on the Xyicon Site to allow access to and use of the Services, including WSDLs, documentation, sample code, software libraries, command line tools, and other related technology. Xyicon Content does not include the Services.

“Xyicon Marks” means any trademarks, service marks, service or trade names, logos, and other designations of Xyicon and its affiliates that we may make available to you in connection with this Agreement.

“Xyicon Site” means http://www.xyicon.com and any successor or related site designated by us.

“Your Content” means Content you or any User (a) run on the Services, (b) cause to interface with the Services, or (c) upload to the Services under your account or otherwise transfer, process, use or store in connection with your account.

ADDENDUM A

Data Security Standards

This Addendum shall apply to the Service Offerings described in the SpaceRunner Customer Agreement (the “Agreement”) between Xyicon and you.

Xyicon agrees to use commercially reasonable management practices with regards to the integrity, backup, security, and retention of Your Content. Use of Your Content is safe, secure, and available only to authorized Xyicon personnel, partners, vendors, and affiliates, and designated client users. In addition, Your Content is hosted by Microsoft in a secure server environment that uses advanced technologies to prevent interference or access from outside intruders. Details can be found here at http://azure.microsoft.com/en-us/support/trust-center/security/.

Notwithstanding Xyicon’s commercially reasonable management practices, Customer is solely responsible for the development, content, operation, maintenance, and use of the Project Data. For example, Customer is solely responsible for:

(a) compliance of the Project Data with any applicable laws;

(b) any claims relating to the Project Data;

(c) properly handling and processing notices sent to Customer (or any of its affiliates) by any person claiming that the Project Data violates such person’s rights.

Customer is also responsible for properly configuring and using the Service and taking its own steps to maintain appropriate security, protection and backup of its Project Data, which may include the use of encryption technology to protect the Project Data from unauthorized access and routine archiving of the Project Data.