Terms & Conditions
Last Updated: August 22, 2023
PLEASE READ THESE GUESTXM TERMS AND CONDITIONS (THE “TERMS”) CAREFULLY BEFORE USING THE SERVICES (AS DEFINED BELOW) OFFERED BY TDN2K, LLC DBA BLACK BOX INTELLIGENCE, A TEXAS LIMITED LIABILITY COMPANY OR THE AFFILIATED ENTITY EXECUTING THE ORDER FORM (“GUESTXM”). BY ACCESSING OR USING THE SERVICES AND/OR EXECUTING THE ORDER FORM (AS DEFINED BELOW), YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE AGREEMENT (AS DEFINED BELOW). PROVISION OF THE SERVICES IS CONDITIONED ON, AND CUSTOMER’S (AS DEFINED BELOW) USE OF THE SERVICES SHALL CONSTITUTE, CUSTOMER’S ASSENT TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. GuestXM and Customer shall herein be referred to each as a “Party” and collectively as the “Parties”. Subject to the terms and conditions of these Terms, the Parties agree as follows:
In addition to capitalized terms that are defined anywhere in these Terms, the capitalized terms set forth in Exhibit A shall have the meanings set forth therein for the purposes of these Terms and any Order Form in which such term is used but not defined.
Services. GuestXM shall provide Customer with the Services as specified in an Order Form. Any conflict between the terms and conditions set forth in these Terms and any Order Form shall be resolved in the following order: (i) the Order Form (to the extent it expressly references an intent to control over these Terms) and (ii) these Terms.
Customer Requirements. Customer is responsible at its sole cost for procuring and maintaining the ability to connect to the GuestXM Platform or other Services.
License Grant. Subject to the terms and conditions of this Agreement, and in consideration of the payment of Fees as set forth on the applicable Order Form, GuestXM hereby grants to Customer and its Users, solely during the Subscription Term of the applicable Order Form, a non-exclusive, non-transferable, revocable and non-sublicensable right and license to use the Services referenced in such Order Form solely for Customer’s internal business evaluation and planning purposes, unless otherwise stated in an applicable Order Form. This license is restricted to use by Customer and its Users, and is subject to Usage Limits, if applicable.
Third-Party Applications. GuestXM or third-party providers may offer Third Party Applications for use in connection with the Services. Except as expressly set forth in an Order Form, GuestXM is not responsible for and does not warrant any such Third-Party Applications.
- FEES; PAYMENT TERMS
Fees. Customer shall pay GuestXM the fees specified in an Order Form, a SOW, or other written agreement between the Parties, in addition to reasonable expenses incurred in performing the Services (“Fees”). Fees are due when invoiced and are payable within fifteen (15) days of receipt of the invoice. Customer agrees to pay interest at 1.5% per month (or, if lower, the maximum legal rate) from the date originally due until payment is received by GuestXM on all amounts thereafter. Customer’s obligation to pay Fees is non-cancellable and non-refundable. The rates in the applicable Order Form are valid for the Subscription Term set forth in the Order Form and thereafter shall be subject to an annual increase of five percent (5%) (subject to Customer retaining the same Services package, capacity, and functionality levels as specified on the applicable Order Form).
Suspension of Services. If any payment due under this Agreement is thirty (30) or more days overdue, GuestXM may, without limiting its other rights and remedies, accelerate the unpaid fee obligations so that all such obligations become immediately due and payable, and suspend all or part of the Services until such amounts are paid in full. GuestXM will provide at least ten (10) days’ prior notice that the account is overdue before suspending Services. GuestXM will not exercise its rights under Section 3 above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
Taxes. Irrespective of whether taxes are reflected on the Order Form or applicable invoice for Services, Customer shall be responsible for the payment of all sales, use goods and services, value-added, and similar taxes due with respect to the Services, excluding for avoidance of doubt taxes on GuestXM’s income.
Confidential Information. “Confidential Information” shall mean the terms set forth in this Agreement and any Order Form, any of the Services, Customer Data and any other information disclosed by a Party (the “Disclosing Party”) that is conspicuously marked “confidential” or in a similar manner sufficient to put the other Party receiving the information (the “Receiving Party”) on notice of the claim of confidentiality or would, under the circumstances, otherwise appear to a reasonable person to be confidential or proprietary. Receiving Party shall hold in confidence, and shall not disclose (or permit or suffer its personnel or Users to disclose) any Confidential Information to any person or entity except to a director, officer, employee, accountants legal advisor or consultant (collectively “Representatives”) of the Receiving Party who has a need to know such Confidential Information in the course of the performance of such Representative’s duties for the Receiving Party, and who is bound by a duty of confidentiality no less protective than contained in this Agreement. The Receiving Party and its Representatives shall use such Confidential Information only in connection with this Agreement and for the purpose for which it was disclosed. Each Party is responsible for the actions of its Representatives and shall protect the other Party’s Confidential Information using the same degree of care as it protects its own highly confidential information, but in no event less than a reasonable degree of care. A Receiving Party shall promptly notify the Disclosing Party upon becoming aware of a breach or threatened breach hereunder and shall cooperate with any reasonable request of the Disclosing Party in enforcing its rights.
Exclusions. The following will not be considered Confidential Information: (a) information that was already known to the Receiving Party, as shown through contemporaneous documentary evidence, without the obligation of confidentiality prior to disclosure of it to the Receiving Party by the Disclosing Party; (b) information that is or hereafter becomes generally available to and known to the public through no fault of the Receiving Party; (c) information that is independently developed by the Receiving Party without any access to or use of the Confidential Information of the Disclosing Party, as shown through contemporaneous documentary evidence; and (d) information that is disclosed with the prior written approval of the Disclosing Party.
Legal Process; Injunctive Relief. In the event disclosure of Confidential Information is required by legal process, the Receiving Party shall promptly notify the Disclosing Party of said legal process so that the Disclosing Party may seek a protective order to limit such disclosure, and the Receiving Party shall ensure that any such disclosure is limited to the information being requested. Both Parties acknowledge that any use of the Disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the Disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both Parties agree that, in addition to any other remedy to which the Disclosing Party may be entitled hereunder, at law or equity, the Disclosing Party may be entitled to seek an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.
Publicity. Except as may be required by law, or as otherwise permitted or expressly contemplated herein, no Party or its respective Affiliates or Representatives shall disclose to any third party the existence of this Agreement or the subject matter or terms hereof without the prior consent of the other Party hereto; provided, however, that Parties shall be permitted to (a) disclose such information to their Representatives to the extent such recipients are obligated to maintain the confidentiality of such information: (b) disclose and use such information in connection with enforcing their rights and fulfilling their obligations under this Agreement or any other agreement entered into in connection with this Agreement; and (c) utilize the other Party’s name and logo for advertising and reporting purposes during the term of this Agreement subject to the prior written approval of the other Party. No press release or public announcement related to this Agreement or the transactions contemplated herein shall be issued or made by any Party without the approval of the other Party. Customer shall not publicly post any analysis or reviews of the Services without GuestXM’s prior written approval. Notwithstanding the foregoing, GuestXM may disclose Confidential Information, under appropriate nondisclosure terms, to auditors, accounting, financial and legal advisers, or to an existing or potential investor, acquiring company, bank, or other financial institution in connection with a merger, acquisition, financing, loan, or similar corporate transaction.
- PROPRIETARY RIGHTS; CUSTOMER DATA; RESTRICTIONS
Ownership. Customer acknowledges and agrees that as between GuestXM and Customer, all right, title and interest in and to and all Intellectual Property Rights in and to, the Services are and shall remain GuestXM’s or its licensors, including all modifications thereto and configurations or derivatives thereof; GuestXM’s proprietary technology used therein, including without limitation, software, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information made available to Customer by GuestXM in providing the Services; and the trade dress and look and feel and template of any dashboard or reporting, including, but not limited to GuestXM Reports, provided by GuestXM to Customer in any form. The GuestXM name, all GuestXM logos, and the product names associated with the GuestXM Services are trademarks of GuestXM, its licensors, or third parties, and nothing contained in this Agreement shall be construed as conferring any rights to Customer therein. Customer shall not remove any GuestXM trademark or logo from the Services, including without limitation from the GuestXM Information or GuestXM Reports. GuestXM may, from time to time, in its sole discretion, make changes to a Service or portion thereof to the extent such changes do not materially decrease the overall functionality of the purchased Services. Subject to the terms and conditions of this Agreement, including without limitation the use restrictions set forth in Section 2.3 above, GuestXM hereby permits Customer the right to use, copy, display, create derivative works, store, have stored or hosted, manipulate, aggregate, transmit, and distribute GuestXM Reports, solely to allow Customer to exercise its rights in GuestXM Reports.
Customer Data. Subject to other terms hereof, Customer retains ownership of all right, title, and interest in and to all Customer Data. During the term of this Agreement, Customer hereby grants to GuestXM a limited, non-exclusive, non-transferable right to use, store, and transmit the Customer Data solely as necessary to provide the Services to Customer.
Customer Restrictions. Customer is responsible for all activities conducted under its User logins and for its Users’ compliance with this Agreement. Unauthorized use, resale, or commercial exploitation of the Services in any way is expressly prohibited. Customer shall not and shall not allow its Users or any third party to: (a) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Services; (b) access or use the Services in order to (i) build a competitive product or service; or (ii) for the purposes of conducting comparative analyses against other services, evaluations or product benchmarks; (c) copy, reproduce, modify, change, or alter the Services, or any part thereof; or (d) license, sell, transfer, make available, lease, or distribute, the Services to any third-party. Customer shall be liable for any breach of this Agreement by any of its Users, Affiliates or Representatives. In addition to GuestXM’s other remedies hereunder, GuestXM reserves the right upon notice to Customer to immediately terminate any User’s right to access the Services if such User has violated any of the restrictions contained in this Agreement. Neither Customer nor its Users shall use the Services to: (w) send, upload or otherwise transmit any Customer Data that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (x) upload or otherwise transmit, display or distribute any Customer Data that infringes any trademark, trade secret, copyright or other proprietary or intellectual property rights of any person; (y) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (z) interfere with or disrupt the Services networks connected to the Services.
Feedback. Customer grants GuestXM a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services (without attribution) any suggestion, enhancement request, recommendation, correction, or other feedback provided by Customer or any Users relating to the operation of the Services.
- WARRANTY AND DISCLAIMERS.
Each Party represents, warrants, and covenants that, at all times during the term of this Agreement: (i) this Agreement constitutes a valid and binding obligation and is enforceable against it in accordance with the terms of this Agreement, and (ii) it has all corporate or limited liability company authority to enter into this Agreement and perform its obligations hereunder.
GuestXM represents and warrants that (A) the Services will: (i) conform in all material respects with any applicable Documentation provided by GuestXM; (ii) be performed in a professional and workmanlike manner; and (ii) the Services will be free from material defects; and (B) GuestXM (i) has obtained and shall maintain all rights and authorizations necessary to perform its obligations under this Agreement ; and (ii) will use industry standard precautions to ensure that it does not introduce any viruses, malware, or other malicious code into Customer’s systems or websites. GuestXM, at its sole expense, will use commercially reasonable efforts to correct any material non-conformance after GuestXM receives written notice from Customer that describes the non-conformance in detail.
Compliance with Law. Each Party is responsible for complying with general laws that apply to their respective businesses. GuestXM represents and warrants that GuestXM’s provision of the Services does not violate applicable law, rule, or regulation, and that the Services will be compiled and produced in a manner that will not contain any material non-public information, GuestXM’s sole liability and Customer’s sole and exclusive remedy in connection with this warranty shall be as set out in Section 8.1.B.
No Other Warranty. Customer recognizes that data and information provided with regard to the Services is based on GuestXM compilation, aggregation, and analysis of data from a variety of sources that may not be under GuestXM’s control, and that GuestXM cannot guarantee the accuracy of such data and information. Without limiting the foregoing, except as expressly set forth in this Agreement, GUESTXM DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, TO CUSTOMER OR TO ANY THIRD PARTY, CONCERNING THE SERVICES PROVIDED HEREUNDER INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND NONINFRINGEMENT. EXCEPT AS SET FORTH IN THIS SECTION 6, GUESTXM DOES NOT REPRESENT THAT THE SERVICES WILL BE ERROR-FREE OR MEET CUSTOMER’S REQUIREMENTS, OR THAT ALL ERRORS IN THE SERVICES WILL BE CORRECTED OR THAT THE SYSTEM THROUGH WHICH THE GUESTXM SOLUTION IS MADE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
- LIMITATION OF LIABILITY.
Consequential Damage Waiver. EXCEPT IN CONNECTION WITH AN EXCLUDED CLAIM OR TO THE EXTENT ARISING IN CONNECTION WITH A THIRD PARTY CLAIM, NEITHER GUESTXM OR CUSTOMER SHALL HAVE ANY LIABILITY UNDER THIS AGREEMENT, ORDER FORM, OR OTHERWISE IN CONNECTION WITH THE PROVISION OR USE OF THE SERVICES, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, DAMAGES FOR LOSS OF BUSINESS, REVENUES, OR BUSINESS INFORMATION, OR DAMAGES FOR BUSINESS INTERRUPTION, COST OF COVER OR COST OF CAPITAL, EVEN IF GUESTXM OR CUSTOMER HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
Limitation of Liability. Except for (a) a Party’s indemnification obligations for claims related to breach of Section 4 herein (Confidentiality); and (b) Customer’s breach of Sections 5.3 or 10.2 (collectively, the “Excluded Claims”), the maximum aggregate liability of either Party arising out of or relating to this Agreement or any Order Form, whether in contract, tort (including negligence) or any other form or cause of action, shall be limited to the total fees paid or payable by Customer for the affected portion of the Services under the applicable Order Form during the twelve-month period immediately prior to the date the cause of action has accrued.
- GuestXM Indemnification.
GuestXM shall defend, indemnify, and hold harmless Customer and its Affiliates (“Customer Indemnified Party”), against any damages awarded by a court or amounts paid in settlement arising directly from lawsuits, threats of lawsuits, and other written allegations made or brought by a third party against the Customer Indemnified Party asserting that that the Services as provided by GuestXM infringes any copyright, patent, trademark, or trade secret of the third party (“Claim”). Notwithstanding the foregoing, GuestXM shall have no liability for any Claim arising from (a) any Customer Indemnified Party, third party or public content, data, software, equipment, components, or services or any other content, data, software, equipment or component not generated by GuestXM, (b) any combination of the Services with content, data, software, equipment, components, services, tools or intellectual property not provided by GuestXM, if the cause of action would not exist but for such combination, (c) any modification of the Services where such cause of action would not exist but for such modification, (d) any unauthorized use of the Services, (e) willful infringement of the Customer Indemnified Party, or (f) the Customer Indemnified Party’s continued use of the Services in any form previously provided to the Indemnified Party after GuestXM has provided a replacement or modified form to the Indemnified Party.
GuestXM shall defend, indemnify and hold harmless Customer Indemnified Parties, against any damages awarded by a court or amounts paid in settlement arising directly from lawsuits, threats of lawsuits, and other written allegations made or brought by a third party against the Customer Indemnified Party (1) alleging that any Services as provided by GuestXM violate applicable laws, rules or regulations; or (2) resulting from GuestXM’s use or disclosure of Customer’s Confidential Information in violation of this Agreement; in each case B (1) and (2) except to the extent such violation is the result of action or inaction by Customer, User(s), or a third party under Customer’s control or who has been provided access to the Services by or on behalf of Customer.
Customer Indemnification. Customer shall indemnify, defend, and hold GuestXM and its Affiliates harmless from and against any damages awarded by a court or amounts paid in settlement arising directly from lawsuits, threats of lawsuits, and other written allegations made or brought by any third party against GuestXM or any of its Affiliates to the extent arising out of or resulting from: (i) Customer’s breach of the Excluded Claims; (ii) Customer’s permitted disclosure of the Services pursuant to this Agreement; or (iii) Customer’s breach or violation of any applicable law, rule, or regulation applicable to Customer in connection with the Agreement.
Indemnification Procedure. The indemnified Party shall (i) promptly notify the indemnifying Party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying Party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying Party shall not settle any claim without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld). The indemnified Party shall also provide the indemnifying Party with reasonable cooperation and assistance in defending such claim (at the indemnifying Party’s cost).
- GuestXM Indemnification.
Term. This Agreement will commence on the Effective Date and will continue in effect so long as an Order Form is in effect. The initial subscription term of the Services procured by Customer shall be as set forth in the applicable Order Form (“Subscription Term”). Except as otherwise specified in an Order Form, the Subscription Term shall automatically renew for successive one (1) year terms (or for the period of time defined in the Order Form) unless either Party gives the other notice of non-renewal at last 30 days prior to the end of the relevant Subscription Term.
For Breach. Notwithstanding the foregoing, either Party may terminate this Agreement or any Order Form: (A) immediately in the event of a material breach of this Agreement or any such Order Form by the other Party that is not cured within thirty (30) days of written notice thereof from the other Party, or (ii) immediately (A) if the other Party is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing, or (B) Customer breaches or otherwise violates an Excluded Claim.
For Convenience. Provided Customer is in compliance with this Agreement, Customer may terminate this Agreement or any Order Form within thirty (30) days of written notice to GuestXM subject to Customer having paid GuestXM all outstanding Fees covering the remainder of the Subscription Term of all Order Forms.
Other. This Agreement and an Order Form hereunder may also be terminated immediately by GuestXM if GuestXM is terminating such Service to all Customers then subscribing to such Service (in which case Customer shall be entitled to a refund of any prepaid, unused Fees paid hereunder). Termination of an Order Form shall not be deemed a termination of this Agreement. Termination of this Agreement shall, however, terminate all outstanding Order Forms.
Effect of Termination. Upon any termination or expiration of this Agreement or any applicable Order Form, GuestXM shall no longer provide the applicable Services to Customer, Customer shall cease and cause its Users to cease using the Services and, to the extent that any Fees hereunder had accrued prior to the termination date, Customer shall pay such Fees to GuestXM immediately upon termination. Customer agrees that following termination of Customer’s account and/or use of the Services, GuestXM may immediately deactivate and delete Customer’s account. All rights and obligations of the Parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order Form.
Return of Confidential Information. GuestXM shall return or destroy all Confidential Information in GuestXM’s possession or control. Notwithstanding anything to the contrary in this Agreement, (i) GuestXM may retain one (1) copy of the Confidential Information as required under law, rule, regulation or GuestXM’s established internal compliance policy or procedure, provided that any materials so retained will remain subject to the obligations of confidentiality, non-disclosure and non-use provisions herein, and (ii) GuestXM will not be required to destroy any electronic files containing Confidential Information that have been created pursuant to its established automatic archiving or backup procedures.
- SECURITY AND PRIVACY
Security of Customer Data. GuestXM shall use commercially reasonable efforts to maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of the Customer Data and shall promptly notify Customer upon GuestXM becoming aware of an unauthorized exposure of Customer Data. The Parties shall co-operate to take such reasonable commercial steps to assist with regard to the mitigation and remediation of any such unauthorized exposure, if necessary.
Privacy. Unless otherwise stated herein or in an Order Form, the Parties agree as follows: (a) the Services performed under this Agreement will not require GuestXM’s access or use of any personally identifiable information (“PII“) of Customer including, without limitation (i) financial information such as credit or debit card numbers, and government identification information such as passport or Social Security numbers, and/or (ii) any biometric or protected health information (PHI) as defined by the Health Information Technology for Economic and Clinical Health Act, and (b) Customer will not provide any PII to GuestXM (or upload any PII into the Services) in connection with the Services except to the extent such PII is necessary for Customer to use or access the Services. To the extent that the Customer or any of its Users provide any PII to GuestXM (or upload any PII into the Services), except for PII necessary for Customer to use or access the Services, then Customer (and not GuestXM) shall be solely responsible for all liability or obligations with respect to such PII under any and all circumstances including but not limited to any data breach.
- GENERAL PROVISIONS
Entire Agreement and Controlling Documents. This Agreement, including all Order Forms, contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating thereto and is binding upon the Parties and their permitted successors and assigns. Only a written instrument that refers to this Agreement or the applicable Order Form and that are duly signed by the authorized representatives of both Parties may amend this Agreement or such Order Form.
Assignment. This Agreement is for the benefit of and binding on the Parties and their permitted successors and assigns. Neither Party may, voluntarily or involuntarily, assign any of its rights under this Agreement to any Party without the other Party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, GuestXM may assign or transfer this Agreement without such consent to an Affiliate or to the surviving or successor entity in the event of a merger, stock sale, or sale of substantially all assets. Any purported assignment in violation of this paragraph shall be null and void. GuestXM may use independent contractors or subcontractors to assist in the delivery of Services; provided, however, that GuestXM shall remain liable for the actions or omissions of such independent contractors or subcontractors and for the payment of their compensation.
Governing Law. This Agreement shall be governed by the laws of the State of Texas, United States of America, without regard to its choice of law provisions. The Parties agree to the exclusive personal jurisdiction of the State and Federal courts located in Collin County, Texas for purposes of determining all disputes arising in connection with this Agreement and hereby waive all objections to venue in those courts.
Relationship of the Parties. The Parties to this Agreement are independent contractors and neither shall have authority to bind or obligate the other.
Force Majeure. In the event either Party is delayed in or prevented from performing any act required hereunder (except for Customer’s obligation to make any payment hereunder) due to failure of any external communication system or on- or off-line computing equipment, labor troubles, inability to procure materials, governmental or judicial orders, acts of God, acts of terrorism, weather conditions, pandemics, third party interference or other similar reason (in each case to the extent beyond its reasonable control), then performance of such act shall be excused for the period of such delay.
Notices. Any notice or request given hereunder shall be in writing and deemed given on the date received when delivered personally or by nationally recognized delivery service (i) if to GuestXM, 14785 Preston Road, Suite 290, Dallas, Texas, 75254, Attention: CEO; and (ii) if to Customer, at the contact address set forth on an Order Form or such other address as may be provided in writing.
Counterpart and Facsimile Execution. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original as against any Party whose signature appears thereon, but all of which together shall constitute but one and the same instrument. Signatures to this Agreement transmitted by facsimile, by electronic mail and such signatures shall be deemed to bind each Party as if they were original signatures.
Waiver and Severability. No modification or waiver of this Agreement will be binding, unless in writing and signed by the authorized representatives of the Parties. The failure of either Party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.
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“Affiliates” means any corporation, partnership or other entity that directly or indirectly controls, is controlled by or under common control with a Party. For purposes of this definition “control” means the ability to vote greater than fifty (50%) percent or more of the voting securities of an entity, or otherwise having the power to directly manage such entity with respect to matters which are the subject of this Agreement.
“Agreement” means these Terms, dated as of the Effective Date, by and between GuestXM and the Customer, and any Order Form entered into pursuant to this Agreement.
“GuestXM Analysis” means GuestXM’s proprietary benchmarking, normative analysis, testing/validation of GuestXM’s analyses of data, in any form.
“GuestXM Platform” means GuestXM’s proprietary software application systems and related databases.
“GuestXM Reports” means certain reports and information provided to Customer as part of a GuestXM product or offering, as set forth in an Order Form.
“GuestXM Information” means the data and information that is provided to, used, or processed by GuestXM using GuestXM Analysis as part of the Services. GuestXM Information excludes any Customer Data.
“Consulting Services” means certain professional services to be provided by GuestXM, if and as specified in an Order Form and/or a SOW.
“Customer” means the purchasing entity identified in the Order Form.
“Customer Data” means information submitted by Customer to GuestXM for use or in connection with the Services. Customer Data excludes any GuestXM Information or information available to the public or available on public websites.
“Documentation” means the documentation for the Services that may be supplied by GuestXM, if applicable, to assist its customers in the on-boarding and/or use of the Services.
The “Effective Date” of this Agreement is the date that is the earlier of (a) the Effective Date of the initial Order Form referencing this Agreement and (b) Customer’s initial access to the Services through any GuestXM online registration, provisioning, or order process.
“Intellectual Property Rights” means patents, copyrights, trade secrets, trademarks, service marks, trade names, design rights, internet domain names, and other similar protected or proprietary rights of GuestXM or its licensors in any country throughout the world, and applications and registrations with respect to any of the foregoing.
“Representative” has the meaning ascribed to it in Section 4.1.
“Order Form” means an Order Form referencing this Agreement entered into by both Parties that (i) identifies the Services ordered by Customer from GuestXM or its Affiliate, (ii) sets forth the prices for the Services to be paid by Customer, and (iii) other restrictions or terms applicable to such Services or as otherwise required by GuestXM. An Order Form may also identify Consulting Services to be provided by GuestXM to Customer.
“Services” means each product and service offering of GuestXM or its Affiliates, as updated from time to time, including, without limitation, GuestXM Information, and GuestXM Reports, Consulting Services, and other related services provided by GuestXM or its Affiliates to Customer pursuant to this Agreement and as specified on an Order Form.
“SOW” means a statement of work referencing this Agreement entered into by both Parties that identifies Consulting Services to be provided by GuestXM, sets forth the price for the Consulting Services and other applicable terms and conditions.
“Third Party Applications” means applications, integrations, implementation, and services, provided by a party other than GuestXM that may interoperate or integrate with the Services.
“Usage Limits” means the maximum number of Users, as applicable, that may access the Services, as set forth in an Order Form.
“Users” mean employees of Customer (or employees in “Customer Pods” as specified in an Order Form) who are authorized by Customer, are permitted by GuestXM or its Affiliates, to use or access the Services. Users do not include employees of third parties (for example, affiliated companies of Customer or restaurant brands affiliated with Customer) unless such third parties are expressly specified as permitted Users of the Services in the applicable Order Form.