2. Provision of Service and Documentation.

2.1.            License Grant. During the Subscription Term and subject to the Terms (including any usage limitations identified during Onboarding), XP will provide Customer access to and use of: (a) the Service solely for Customer’s internal use up to the number of employees or contractors of Customer identified during Onboarding who Customer permits to use the Service (“Authorized Users”) and (b) the product documentation provided by XP in connection with the Service (the “Documentation”) solely for Customer’s internal use in connection with Customer’s use of the Service.

2.2.            Restrictions. Customer will not use the Service or Documentation for any purposes beyond the scope of the rights granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer will not at any time, directly or indirectly: (a) use or copy the Service or Documentation, in whole or in part, except as permitted hereunder; (b) use the Service or Documentation as a service bureau or otherwise for the benefit of a third party; (c) rent, lease, loan or otherwise in any manner provide or distribute the Service or any copy thereof to any third party; (d) misappropriate any data or information from the Service or Documentation; (e) disrupt the functioning of the Service; (f) otherwise act in a manner that interferes with XP’s operation of the Service or with the use of the Service by others; (g) gain any unauthorized access to the Service or Documentation for any other purpose or access or use the Service to circumvent or exceed usage limitations; (h) modify, decompile, reverse engineer, disassemble, remove, alter, circumvent, or otherwise tamper with the Service, Documentation, or any security technology, software, or rights management information contained within the Service or in any software used to enable the Service; (i) modify or remove any copyright, trademark or other proprietary rights notice on any software or other materials contained within the Service or Documentation; (j) use the Service or Documentation for purposes of developing, using, or providing a product or service that competes with, or provides similar functionality to, the Service; (k) access or use the Service to submit or transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature or to send any commercial solicitation or spam (whether commercial in nature or not); (l) exploit the Service in any unauthorized way whatsoever, including without limitation by trespass or burdening server or network capacity or Service infrastructure (including transmitting files containing viruses, corrupted files, spyware, adware, or any other software or programs, or deploying “spiders,” “web-bots,” “screen-scrapers,” or “web crawlers” that may damage or adversely affect server or network capacity or Service infrastructure); or (m) attempt, or encourage or assist any third party to do, any of the foregoing.

2.3.            Usage Data. XP may collect, maintain, process and use, or Customer may provide to XP, diagnostic, technical, usage and related information, including information about Customer’s computers, systems and software (“Usage Data”). Customer agrees that all Usage Data is owned solely and exclusively by XP, and XP accordingly may use such Usage Data for any lawful purpose, including to: (a) provide and maintain the Service for Customer; (b) develop and improve the Service; (c) monitor Customer’s usage of the Service; (d) for research and analytics and for XP’s other business purposes; and (e) share analytics and other derived Usage Data with third parties solely in deidentified or aggregated form. The Service may contain technological measures designed to prevent unauthorized or illegal use of the Service. Customer acknowledges and agrees that XP may use these and other lawful measures to verify Customer’s compliance with the terms of this Agreement and enforce XP’s rights, including all intellectual property rights, in and to the Service.

2.4.            Reservation of Rights. XP reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights 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 Service or Documentation.

2.5.            Customer Responsibilities. Customer is responsible and liable for all uses of the Service and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement, including without limitation any Customer Inputs. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer will take reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Service and Documentation and will cause Authorized Users to comply with such provisions.

3. Ownership; Data Rights; and Release.

3.1.            Ownership.

3.1.1.         As between XP and Customer, Customer owns all right, title and interest in and to any and all of its Customer Inputs. Solely in order to facilitate the Services and publish Publications with various third-party publishers, XP shall own all right, title and interest in and to the Publications developed by XP under this Agreement, including any copyrightable works, discoveries, inventions, or other intellectual property included therein. Customer acknowledges and agrees that XP retains sole ownership and control of all proprietary methods it has developed and uses regarding distribution, targeting and lead generation rendered as part of the Services to Customer, including but not limited to XP’s proprietary relationship and methods used to secure and maintain recurring columns and features. XP owns all right, title and interest in and to the Service, Documentation, and Usage Data, including but not limited to all intellectual property and other proprietary rights therein and thereto.

3.1.2.         In the event that (a) XP confirms in writing to Customer that it is unable to secure a third-party publisher to publish a certain Publication or (b) Customer elects not to publish a certain Publication with a third-party publisher, XP hereby grants to Customer all right, title and interest in such certain Publication for Customer to use and otherwise exploit such Publication as Customer deems fit.

3.2.            Customer Input License. Customer hereby grants to XP during the Subscription Term a fully paid-up, royalty-free, worldwide, nonexclusive right and license to use the Customer Inputs, and any Publicity Rights thereto, as necessary to perform its obligations under this Agreement (including providing the features and functionality of the Service to Customer) and for such other purposes identified in the XP privacy policy, available at https://www.xp.news/privacy-policy, as it may be updated by XP from time to time (“Privacy Policy”). As part of the Services, Customer acknowledges that XP will recommend or arrange for certain placement or distribution of Publications with third party media outlets and platforms, as approved by Customer. Customer agrees and acknowledges that such placement and distribution may require Customer to license the Publications to such third parties, typically on a promotional (non-paid basis) and non-exclusive basis and Customer hereby authorizes XP to issue any such licenses on its behalf subject to its approval. Accordingly, Customer acknowledges that it will be subject to any such license terms and conditions of such third parties and platforms as provided to Customer by XP, and Customer shall be responsible for any required compliance therewith.

3.3.            Release.

3.3.1.         For the intangible value Customer will gain by participating in the Services and other good and valuable consideration, the receipt and sufficiency of which Customer hereby acknowledges, Customer irrevocably gives XP its permission, and grants to XP the right, to interview and record Customer (the “Interview”) and incorporate the Interview into the Publications.

3.3.2.         Customer hereby irrevocably grants and licenses to XP and its affiliates, successors, licensees, agents, and assigns the rights to digitize, modify, alter, edit, adapt, create derivative works, display, publicly perform, exhibit, transmit, broadcast, reproduce, exploit, sell, rent, license, otherwise use, and permit others to use, the Interview and the Publications, including Customer’s Publicity Rights, in perpetuity throughout the universe and in any medium or format whatsoever now existing or hereafter created solely in furtherance of XP’s provision of the Services to Customer.

3.3.3.         Customer agrees that XP is and will be the sole and exclusive owner of all right, title, and interest in and to the Publications and the Interview (including all film, photographs, and other recordings, including outtakes and behind-the-scenes footage), including all copyrights and other intellectual property rights therein, in perpetuity throughout the universe. Customer shall and hereby does (a) assign, transfer, and otherwise convey to XP, irrevocably and in perpetuity, throughout the universe, all of Customer’s right, title, and interest in and to, if any, the Interview and the Publications, including all copyright and other intellectual property rights, including all registration, renewal, and reversion rights, and the right to register and sue to enforce such copyrights against infringers; and (b) irrevocably waive any and all claims Customer may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral in the Interview. If as a matter of applicable law, Customer is not permitted to grant XP such a waiver, Customer hereby grants to XP without further consideration, an exclusive, perpetual, transferable, irrevocable, fully-paid license, throughout the world, with the right to sublicense through multiple levels of sub-licensees, under any and all such rights to (i) reproduce, create improvements of, distribute, publicly perform, publicly display, transmit, and otherwise use the Interview in any medium or format, whether now known or hereafter discovered, (ii) use, make, have made, sell, have sold, offer to sell, market, promote, import, and otherwise exploit any product or service, in whole or in part, based on, embodying, incorporating, or derived from the Interview, and (iii) exercise any and all similar present or future rights in the Interview solely in furtherance of XP’s provision of the Services to Customer.

3.3.4.         To the maximum extent permitted by applicable law, Customer hereby waives any and all rights or benefits it may have, had or may in the future have against the XP in connection with this Agreement, the Interview, the Publications, its Publicity Rights and/or the production, creation, advertising, promotion or exploitation thereof under §1542 of the California Civil Code, and every like provision in any other domestic and foreign jurisdiction, which provides as follows:

“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

4. Service Guidelines.

During the Subscription Term, XP will provide the Service in accordance with, and Customer hereby agrees to, the Guidelines set forth in Exhibit A (the “Service Guidelines”).

5. Fees; Payment.

5.1.            Fees. Customer shall pay the monthly Fees during Onboarding. Fees are non-refundable unless otherwise set forth in this Agreement or as required by Applicable Laws. All amounts payable to XP under this Agreement shall be paid by Customer to XP in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by Applicable Laws). XP accepts various payment methods through a payment processor, such as Stripe, and Customer hereby agrees to be bound by Stripe’s Services Agreement available at https://stripe.com/us/legal.

5.2.            Late Payments. Overdue payments will be subject to interest at the rate of one and one-half percent (1.5%) per month, or the maximum allowable under Applicable Laws, whichever is less, and Customer will indemnify and hold XP harmless from and against any costs incurred in connection with its collection of any Fees or interest properly due hereunder. If such failure to pay continues for ten (10) days following written notice thereof, XP may: (a) withhold, suspend or revoke its grants of rights hereunder; and/or (b) terminate this Agreement under Section 6.3.

5.3.            Taxes. Customer will be responsible for the payment of any and all local, state, federal, or foreign taxes, levies, and duties of any nature, including value-added, sales, use, and withholding taxes (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on XP’s net income. If XP has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 5.3, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides XP with a valid tax exemption certificate authorized by the appropriate taxing authority.

5.4.            Fee Increases. XP may, in its sole discretion, increase or otherwise modify the Fees at each renewal period during the Subscription Term by providing Customer notice of changes to the Fees at least seven (7) days prior to the end of the then-current Subscription Term. If Customer does not agree to the new or changed Fees, Customer may exercise its right not to renew the Agreement.

6. Subscription Term and Termination.

6.1.            Effective Date and Subscription Term. Unless earlier terminated in accordance with this Section 6, this Agreement and the rights granted hereunder shall be effective as of the Effective Date and shall continue on a month-to-month basis. The Agreement will automatically renew for additional periods equal to additional successive one (1)-month periods unless a party terminates this Agreement pursuant to Section 6.2 or 6.3.

6.2.            Termination for Convenience. Either party may cancel this agreement at any time via email. In the event of a termination for convenience, Customer may access the Services for the remainder of the then-current monthly term.

6.2.            Termination for Convenience. Either party may cancel this agreement at any time via email. In the event of a termination for convenience, Customer may access the Services for the remainder of the then-current monthly term.

6.3.            Termination for Cause. Either party shall have the right to terminate this Agreement immediately upon written notice to the other party: (a) if the other party breaches or fails to perform or observe any material term or condition of this Agreement and such default has not been cured within ten (10) days after written notice of such default to the other party; or (b) if the other party (i) terminates or suspends its business, (ii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (iv) has wound up or liquidated, voluntarily or otherwise.

6.4.            Effect of Termination. On the expiration or earlier termination of this Agreement: (a) all rights, licenses and authorizations granted to Customer will immediately terminate, and Customer will: (i) immediately cease all use of and other activities with respect to the affected Service and Documentation; (ii) within five (5) days, return to XP or, upon XP’s request, destroy, and permanently erase from all devices and systems Customer directly or indirectly controls, XP’s Confidential Information and materials containing any Confidential Information of XP; and (iii) deliver to XP a certification, in writing signed by a duly authorized representative of Customer, that the Confidential Information and all copies thereof have been returned or destroyed, and their use discontinued; provided, however, that neither Customer nor any of its representatives shall be obligated to return or destroy Confidential Information to the extent it has been electronically archived by any such party in accordance with its automated security and/or disaster recovery procedures as in effect from time to time. Nothing contained herein shall limit any other remedies that either party may have for the default of the other party under this Agreement nor relieve either party of any of its obligations incurred prior to such termination; and (b) all amounts payable by Customer to XP of any kind are immediately payable and due no later than thirty (30) days after the effective date of the expiration or termination of this Agreement. If XP terminates this Agreement pursuant to Section 6.3(a), XP will not refund to Customer any Fees prepaid by Customer for time remaining during the Subscription Term. If Customer terminates this Agreement pursuant to Section 6.2(a), XP will provide to Customer a refund of Fees prepaid by Customer for time remaining during the Subscription Term.

6.5.            Survival. Sections 1, 2.2, 2.3, 2.4, 2.5, 3, 5, 6.4, 6.5, 7 (for three (3) years after termination or expiration of this Agreement or, with respect to trade secrets, until such trade secrets are no longer protected as such under Applicable Laws), 8, 9, 10, 11.1 (solely with respect to claims arising during the Subscription Term), 11.2, 11.3, 11.4, 11.5, 11.6, 12, and 13 shall survive termination of this Agreement.

7. Confidentiality.

7.1.            Confidential Information; Nonuse and Nondisclosure. Each party, as a receiving party, agrees to retain in confidence the non-public information and know-how disclosed to it pursuant to this Agreement which is either designated in writing as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within thirty (30) days of the oral disclosure or should reasonably be understood to be confidential by the recipient (the “Confidential Information”). Notwithstanding any failure to so designate them, the Service, the Documentation, the Usage Data, and the Terms shall be XP’s Confidential Information. Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information, using at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care; (b) refrain from using the other party’s Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to employees, officers, affiliates, controlling stockholders, agents, advisors, subcontractors and other representatives as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein). Each party agrees to promptly notify the other party of any unauthorized disclosure or use of any Confidential Information and to assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested. Notwithstanding the foregoing, Confidential Information shall not include information which is: (i) already publicly known without breach of this Agreement; (ii) discovered, created or independently developed by the receiving party without use of, reliance upon, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law or court order; provided that the receiving party shall provide prompt notice thereof and commercially reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, either party hereto may disclose any Confidential Information hereunder to such party’s agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties hereto.

7.2.            Remedy. Each party agrees and acknowledges that any breach or threatened breach of this Section 7 may cause irreparable injury to the disclosing party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the receiving party, without the necessity of proving actual damages or posting any bond, in addition to any other rights or remedies provided by law.

8. Privacy and Security.

Customer understands that by using XP’s products and services, Customer agrees to XP’s collection, use and disclosure of certain Customer personal information and other Customer Inputs as set forth in the Privacy Policy. Customer understands that XP cannot guarantee that unauthorized third parties will never be able to defeat XP’s security measures or use Customer personal information or other Customer Inputs for improper purposes. Customer acknowledges that it provides personal information and other Customer Inputs at its own risk. For the purposes of these Terms, “personal information” is defined in the Privacy Policy.

9. Suggestions and Improvements.

Customer may choose to or XP may invite Customer to submit comments or ideas about XP’s products and services, including without limitation the Service and Documentation (“Feedback”). By submitting any Feedback, Customer agrees that its disclosure is gratuitous, unsolicited and without restriction and will not place XP under any fiduciary or other obligation, and that XP is free to use the Feedback without any additional compensation to Customer or anyone else, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. Customer further acknowledges that, by acceptance of Customer’s submission, XP does not waive any rights to use similar or related ideas previously known to XP, or developed by its employees, or obtained from sources other than Customer.

10. Representations and Warranties.

10.1.          Performance Warranty; Sole and Exclusive Remedy. Subject to the limitations and conditions set forth In Section 10.2, XP hereby represents and warrants to Customer that, during the Subscription Term:

10.1.1.       the functionality of the Service will not be materially decreased from the functionality of the Service available as of the Effective Date, when operated and used as recommended in the Documentation applicable to the particular Service and in accordance with this Agreement (the “Performance Warranty”);

10.1.2.       XP will use reasonable efforts consistent with industry standards designed to ensure that no viruses, spyware, malware, or similar items will be coded or introduced into the Service. Customer’s sole and exclusive remedy for XP’s breach of its Performance Warranty will be for Customer to submit a support request and for XP to respond to and resolve such request in accordance with the Service Levels; and

10.1.3.       Any materials developed or contributed by XP to the Publications shall be delivered to third-party publishers free of encumbrances, including, without limitation, liens, security interests moral rights or attribution obligations so that Customer may exercise its rights hereunder without any payments or obligations to any third party; provided however, Customer acknowledges and agrees that Customer will be solely responsible for obtaining all rights and permissions from experts, Customer employees and for any Customer or third party materials supplied by Customer for incorporation by XP in the Publications.

10.1.4.       The limited warranty set forth in this Section 10.1 will apply only if Customer, as of the date of notification, is in compliance with all terms and conditions of this Agreement (including the payment of all Fees then due and owing).

10.2.          Exceptions. Notwithstanding any provisions to the contrary in this Agreement, the limited warranty set forth in Section 10.1 does not apply to problems arising out of or relating to: (a) Service that is modified or damaged by Customer or its representatives; (b) any operation or use of, or other activity relating to, the Service other than as specified in the Documentation applicable to the particular Service, including any incorporation in the Service of, or combination, operation or use of the Service in or with, any technology (including any software, hardware, firmware, system or network) or service not specified for Customer’s use in the Documentation applicable to the particular Service; (c) the operation of, or access to, Customer’s or a third-party’s system or network; (d) any beta software, software that XP makes available for testing or demonstration purposes, temporary software modules, or software for which XP does not receive a fee; (e) Customer’s breach of any provision of this Agreement; or (f) a Force Majeure Event.

10.3.          Customer Representations and Warranties. Customer hereby represents and warrants that: (a) its use of the Service and Documentation will comply with all Applicable Laws; (b) it has all necessary rights, licenses and consents, and has provided all necessary notices required by Applicable Laws to submit, transmit, provide, receive, access and/or use its Customer Inputs, including any personal information therein, and any other content it provides, receives, accesses and/or uses through or in connection with the Service or Documentation; (c) it is solely responsible for clearing all rights and paying all fees and other costs and expenses arising in connection with the Customer Inputs; and (d) the Customer Inputs and XP’s use or distribution thereof as contemplated by this Agreement will not result in (i) any violation of Applicable Laws or infringement or misappropriation of any rights of any third party, including without limitation any intellectual property right or privacy right, (ii) any liability from XP to any third party, or (iii) the payment by XP of any fees to any third party.

10.4.          Warranty Disclaimer.

10.4.1.       General Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT: (A) XP, ON BEHALF OF ITSELF AND ITS LICENSORS EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT; AND (B) THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND XP AND ITS LICENSORS MAKE NO OTHER WARRANTY AS TO THE SERVICE.

10.4.2.       Results of Use of the Service. THE PARTIES ACKNOWLEDGE AND AGREE THAT THERE ARE CERTAIN RISKS INHERENT TO THEIR ENGAGEMENT HEREUNDER, AND THAT CUSTOMER’S USE OF, AND XP’S PROVISION OF, THE SERVICE MAY NOT RESULT IN ANY SPECIFIED RESULT. THE PARTIES ACKNOWLEDGE AND AGREE THAT INFORMATION PROVIDED VIA THE SERVICE IS INTENDED TO BE INFORMATIVE AND SHOULD NOT BE CONSTRUED AS ADVICE. ACCORDINGLY, XP HEREBY DISCLAIMS, AND CUSTOMER HEREBY EXPRESSLY RELIEVES XP FROM, ANY CLAIMS, DAMAGES, COSTS, OR LIABILITIES THAT MAY ARISE FROM OR RELATE TO ANY ACTS OR OMISSIONS MADE BY CUSTOMER BASED IN WHOLE OR IN PART BASED ON ANY INFORMATION PROVIDED VIA THE SERVICE.

11. Indemnification.

11.1.          XP Indemnity. XP shall defend or settle, at its own option and expense, any suit, claim, action, or proceeding brought against Customer by a third-party to the extent based upon a claim that the Service or Publications infringes any U.S. copyright or trademark or misappropriates any U.S. trade secret of such third-party, and will pay such damages or costs as are finally awarded against Customer by a court (or mediator or arbitrator, if applicable) of competent jurisdiction or are agreed to in a settlement that are attributable to such claim (provided that XP may not enter into any settlement or dispose of any claim in a manner that requires Customer to admit any liability or that places any material obligation on Customer without its prior written consent, not to be unreasonably withheld, conditioned, or delayed).

11.2.          XP Options. Should the Service or Publication become, or in the opinion of XP be likely to become, the subject of such an infringement claim, XP may, at its option: (a) procure for Customer the right to use the Service at no cost to Customer; (b) replace or modify, in whole or in part, the Service to make it non-infringing; or (c) if neither (a) nor (b) are, in XP’s sole and absolute discretion, commercially practicable, accept return of the Service, or remove the allegedly offending module thereof, and, refund the Fees paid for such Service or module by Customer, less an amount determined by multiplying the Fees paid for such Service or such module during the then-current Subscription Term by a fraction, the numerator of which is the number of days during the then-current Subscription Term during which Customer had use of the Service and the denominator of which is the total number of days during the then-current Subscription Term.

11.3.          Exclusions from XP Indemnity. XP assumes no liability under this Section 11 for: (a) any Customer method or process in which the Service may be used; (b) any compliance with Customer’s specifications; (c) modification of the Service other than: (i) by XP in connection with this Agreement or (ii) with XP’s express written authorization and in strict accordance with XP’s written specifications; (d) the combination, operation or use of the Service with non-XP technology, service or data; (e) use of the Service after XP’s notice to Customer of such activity’s alleged or actual infringement, misappropriation or other violation of a third-party’s rights and provision of a non-infringing alternative; (f) negligence, abuse, misapplication, or misuse of the Service or Documentation by or on behalf of Customer, Customer’s representatives, or a third-party; (g) use of the Service or Documentation by or on behalf of Customer that is outside the purpose, scope, or manner of use authorized by this Agreement; or (h) claims for which Customer is obligated to indemnify XP pursuant to Section 11.4, and Customer shall indemnify and hold harmless XP and its officers, directors, employees, agents, successors and assigns against any damages, losses, and expenses (including reasonable attorneys’ fees) arising from any third-party action to the extent based upon a claim of any kind based on any of the foregoing factors in (a) through (h) (inclusive) above.

11.4.          Customer Indemnification. Customer shall defend, indemnify, and hold harmless XP and its officers, directors, employees, agents, successors and assigns from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from or relating to: (a) Customer Inputs; or (b) Customer’s or its Authorized Users’: (i) use of and access to the Service in a manner inconsistent with this Agreement and Documentation; (ii) breach of Section 2 or 10.3; or (iii) Customer’s negligence or willful misconduct.

11.5.          Indemnity Procedures. The party seeking indemnification (the “Indemnified Party”) must provide the party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt written notice of the claim for which indemnification is sought (provided that a failure to provide such notice will not relieve the Indemnifying Party of its obligations hereunder except to the extent material prejudice results from such failure); (b) sole control over the defense and settlement of the claim (provided that the Indemnifying Party may not enter into any settlement or dispose of any claim in a manner that requires the Indemnified Party to admit any liability or that places any material obligation on the Indemnified Party without the Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed); and (c) all reasonable cooperation, at the Indemnifying Party’s request and expense, in the defense and settlement of the claim.

11.6.          Sole Remedy for Infringement. THIS SECTION 11 SETS FORTH XP’S ENTIRE LIABILITY AND CUSTOMER’S SOLE REMEDY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THE SERVICE AND PUBLICATIONS AND THIS AGREEMENT.

12. Limitation of Liability.

12.1.          Liability Caps. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS, IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO XP HEREUNDER DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.

12.2.          Damages Waiver. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS, NEITHER PARTY NOR ITS LICENSORS WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR, EXCEPT AS PROVIDED IN SECTION 8, FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12.3.          Excluded Claims. As used in this Agreement, “Excluded Claims” means: (a) Customer’s breach of Section 2 or 10.3; (b) either party’s breach of its confidentiality obligations under Section 7; (c) either party’s indemnification obligations under Section 11 (provided that in no event shall XP’s liability in connection with such obligations exceed three times (3X) the amount paid or payable by Customer to XP during the one (1)-year period immediately prior to the event giving rise to the liability); and (d) the gross negligence or willful misconduct of either party or its agents.

12.4.          Customer Acknowledgment. Customer acknowledges that the amounts payable hereunder are based in part on these limitations, and further agrees that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.

11. Miscellaneous.

13.1.          Assignment. Neither party shall assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, to any third party without the other party’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. Notwithstanding the foregoing, each party shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to this Section 13.1, this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.

13.2.          Force Majeure. If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure Event”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lockouts, work stoppages or communication outages. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.

13.3.          Governing Law; Dispute Resolution. This Agreement shall be construed in accordance with the laws of the State of Colorado. The parties hereby (a) agree that any action arising out of this Agreement will be brought in the state or federal courts located in the County of Denver, Colorado; and (b) irrevocably submit to the exclusive jurisdiction of such courts. For any dispute in connection with this Agreement, the parties agree to first attempt to mutually resolve the dispute informally via negotiation. If the dispute has not been resolved after thirty (30) days, the parties agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach, by binding arbitration by the American Arbitration Association (“AAA”), under the Expedited Procedures then in effect for AAA, except as provided herein. The arbitration will be conducted in San Francisco, California, unless otherwise agreed. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules, and the award rendered by the arbitrator may include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section 13.3 shall be deemed as preventing either party from seeking injunctive, equitable or other relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its data security, intellectual property rights or other proprietary rights.

13.4.          Notification Procedures and Changes to this Agreement. XP may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on XP’s website, as determined by XP in its sole discretion. XP reserves the right to determine the form and means of providing notifications to Customer. XP may, in its sole discretion, modify or update this Agreement from time to time, and so Customer should review this page periodically. When XP changes this Agreement in a material manner, XP will update the ‘last modified’ date at the top of this page and notify Customer that material changes have been made to this Agreement. Customer’s continued use of the Services after any such change constitutes Customer’s acceptance of the new Agreement. If Customer do not agree to any of the terms of this Agreement or any future Agreement, Customer may terminate this Agreement pursuant to Section 6.2.

13.5.          Compliance with Laws. Each party will comply with all Applicable Laws.

13.6.          Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.

13.7.          Publicity. Customer hereby grants to XP during the Subscription Term and for six (6) months following the expiration or termination of the Subscription Term, a non-exclusive, royalty-free, non-sublicensable license to use Customer’s Marks in XP’s advertising, literature and websites for the purpose of identifying Customer as a current or former XP client or affiliate. This license shall include the right to use quotes from Customer’s Authorized Users regarding their satisfaction with XP and/or the Service. Customer shall have no right to use XP’s Marks.

13.8.          Notices. Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered by email or overnight mail, to the addresses set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing. All email notices, and an email copy of any paper notice, to XP must be sent to notifications@xp.news.

13.9.          U.S. Government Restricted Rights. If the Service is being used by the U.S. Government, the software underlying the Service is commercial computer software developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.

13.10.        Export Law Assurances. Customer understands that the Service is or may be subject to export control laws and regulations. CUSTOMER MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE SERVICE OR ANY TECHNICAL OR OTHER DATA PROVIDED IN CONNECTION THEREWITH OR ANY UNDERLYING INFORMATION OR TECHNOLOGY EXCEPT IN FULL COMPLIANCE WITH APPLICABLE LAWS, IN PARTICULAR, BUT WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS. NONE OF THE SERVICE OR ANY UNDERLYING INFORMATION OR TECHNOLOGY MAY BE DOWNLOADED OR OTHERWISE EXPORTED OR RE- EXPORTED: (A) INTO (OR TO A NATIONAL OR RESIDENT OF) ANY COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS; OR (B) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S LIST OF PROHIBITED COUNTRIES OR DEBARRED OR DENIED PERSONS OR ENTITIES. CUSTOMER HEREBY AGREES TO THE FOREGOING AND REPRESENTS AND WARRANTS THAT CUSTOMER IS NOT LOCATED IN, UNDER CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.

13.11.        Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

13.12.        Advice of Legal Counsel. Each party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the Terms. This Agreement shall not be construed against any party by reason of the drafting or preparation thereof.

13.13.        Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the Terms, the prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.

13.14.        Entire Agreement; Modification; Waiver; Severability. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement, and is not intended to confer upon any third party any rights or remedies hereunder. Customer acknowledges that it has not entered in this Agreement based on any representations other than those contained herein. XP may, in its sole discretion and from time to time, modify these Terms to reflect changes to Applicable Laws or to the Service. Accordingly, Customer should review this page periodically. Customer’s continued use of the Service after any such change constitutes Customer’s acceptance of the new Terms. If Customer does not agree to any of these Terms or any future Terms, Customer will not use (or continue to use) the Service. Changes will not apply retroactively and will become effective no sooner than fourteen (14) days after they are posted. However, changes addressing new functions or changes made for legal reasons will be effective immediately. If Customer does not agree to the modified Terms, Customer should discontinue use of the Service. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default. If any provision of this Agreement is held invalid or unenforceable under Applicable Laws by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the Agreement will remain in full force and effect.