Terms of Service
Effective: December 2, 2019
Welcome to DraftSpark. These Terms of Service (these “Terms”) constitute the agreement between Xerox Corporation (“Xerox”, “we” or “us”) and the individual or legal entity acquiring access to and use of the DraftSpark Product (the “Customer” or “You”).
If you are accepting these Terms on behalf of a legal entity you represent and warrant that you are acting as an agent of such legal entity with the authority to accept these Terms on behalf of and to bind such legal entity to these Terms.
These Terms are effective as of the date you first click “I agree” (or similar button or checkbox) or use or access DraftSpark, whichever is earlier (the “Effective Date”). These Terms do not have to be signed to be binding. You indicate your assent to these Terms by clicking “I agree” (or similar button or checkbox) at the time you register for DraftSpark, create a DraftSpark account, or place an Order. For No-Charge Products, you also indicate your assent to these Terms by accessing or using the applicable No-Charge Product.
2. Product Usage and Administration.
2.1. Account Creation. To access and use the Product, Customer will create a primary Customer account (the “Customer Account”) and identify a primary Administrator (the “Customer Representative”) for the Customer Account. Customer agrees to provide and maintain accurate, current and complete contact information, including email address, for the Customer Representative. Xerox may communicate with Customer respecting its use of the Product and send service announcements and administrative messages to Customer through the Customer Representative. Customer Representative may create Authorized User Accounts for and invite its employees, consultants, contractors and agents to use the Product as Customer’s Authorized Users. Customer can name certain Authorized Users as Administrators who will have important rights and controls over the use of the Customer Account. Administrators will have the right to: create, provision, deprovision and manage account permissions and settings for Authorized Users; control and manage Customer Data submitted to the Product; and make purchasing decisions on behalf of the Customer. Customer acknowledges and agrees that it is responsible for understanding the settings and controls for each Authorized User Account created under the Customer Account as well as for controlling whom it invites or allows to become an Authorized User Without limiting Section 2.2 (Authorized User Accounts), which applies to all User Accounts, including Administrators, Customer is responsible for its Administrators and any actions they take, including as described above.
2.2. Authorized User Accounts. Customer shall provision each Authorized User via email invitation. Upon receipt if this invitation, Users will specify their own user name and password according to the secure password requirements specified by the Product. User IDs are granted to individual, named persons and may not be shared. Customer will provide all required disclosures to and will obtain sufficient consent and authorization from Authorized Users to allow creation of Authorized User accounts, including without limitation provision of user name, password, email address, and other contact information provided by the Authorized User (“User Account Information”). Customer shall cause Authorized Users to be bound by, and is responsible and liable for its Authorized Users’ compliance or noncompliance with, the terms and conditions of these Terms. Customer acknowledges and agrees that (i) User Account Information will always be accurate and up to date, (ii) Customer is responsible for confidentiality of user passwords and user names, and (iii) Customer will be solely liable to Xerox for all access and use via User Account Information. Customer shall promptly notify Xerox if Customer becomes aware of any unauthorized use of User Account Information. Customer further acknowledges and agrees that Xerox may disclose User Account Information: (i) to its Affiliates in the course of developing, providing, managing, administering and improving the Product; (ii) when Xerox believes, in good faith, that disclosure is necessary to protect Xerox’s rights under these Terms, protect the safety of others, investigate fraud or other illegal activity, or respond to a government request; (iii) as required by law; and/or (iv) in the event of a merger, acquisition or reorganization of Xerox or a relevant portion of its assets, to the acquiring or surviving entity.
2.3. Age Requirement for Authorized Users. The Product is not intended for, and should not be used by, anyone under the age of 16. You are responsible for ensuring that all Authorized Users are at least 16 years old.
3. What’s included in your subscription; what are the restrictions.
3.1. Access to the Product. Subject to these Terms and during the applicable Subscription Term, Xerox grants Customer a limited, revocable, non-exclusive, worldwide, non-sublicensable and non-transferrable license to access and use the Product for Customer’s own internal business operations, all in accordance with these Terms, the applicable Order and the Documentation.
3.2. Support. During the Subscription Term, we will provide Support for the Product in accordance levels specified in the applicable Order.
3.3. Restrictions. Customer shall not and shall not authorize any third party to: (a) make the Product or any portion thereof available to, or use the Product for the benefit of, anyone other than Customer; (b) upload, post, transmit, or otherwise make available to the Product any content that (i) Customer knows or reasonably should know is unlawful or tortious or (ii) that Customer does not have a right to make available under any applicable law or under contractual or fiduciary relationships, or that infringes or misappropriates any patent, trademark, trade secret, copyright or other proprietary rights; (c) rent, lease, sublicense, resell, time share or similarly exploit the Product; (d) upload, post, transmit, or otherwise make available any content or information designed to interrupt, interfere with, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) reverse engineer, modify, adapt, hack into, or otherwise attempt to gain unauthorized access to the Product or related systems or networks or (f) remove or obscure any proprietary or other notices contained in the Product; (h) access or use the Product or the Documentation for competitive analysis or to build competitive products; or (i) publicly disseminate the results of any benchmark testing or other information regarding the performance of the Product.
4. Security and Data Privacy.
4.1. Security and Data Protection. We implement and maintain physical, technical and administrative security measures designed to protect Customer Data from unauthorized access, destruction, use, modification, or disclosure. We will maintain administrative, physical, and technical safeguards for the security, confidentiality and integrity of Customer Data at a level not materially less protective than as described in our Security Policy as of the Effective Date, as updated from time-to-time.
5. Customer Data.
5.1. Ownership of Customer Data; Limited License to provide the Product. Customer retains all right, title and interest in and to Customer Data and shall be solely responsible for any and all Customer Data submitted to the Product using the Customer Account information. Customer acknowledges and agrees that Customer will be the controller of Customer Data for purposes of all applicable privacy laws. Customer grants Xerox and its Affiliates (including its third party hosting providers acting on its behalf) a worldwide, non-exclusive, limited term license to access, use, copy, distribute, perform and display Customer Data solely (a) to provide, maintain, update, and improve the Product provided, that use for updating or improving the Product will not identify Customer to any third party (excluding Xerox’s Affiliates and subprocessors) as the source of any Customer Data contributing to the update or improvement, and that Xerox shall aggregate and dissociate Customer Data from Customer before sharing it with a third party (other than its Affiliates and subprocessors for use as permitted herein); (b) to prevent or address service or technical problems or any other support matters at Customer’s request; (c) as compelled by law in accordance with Section 11.3 “Confidentiality: Compelled Access or Disclosure” below or as expressly permitted in writing by Customer. Without limiting the foregoing, Customer authorizes Xerox to host, process and transmit Customer Data in the manner contemplated by the Documentation. Subject to the limited licenses granted herein, Xerox acquires no right, title or interest under these Terms in or to Customer Data.
5.2. Data Compliance Obligations. Customer’s use of the Product (including use by Authorized Users) must comply at all times with these Terms and all applicable laws. You represent and warrant that: (i) Customer owns or has the necessary licenses, rights, consents, and permissions under all patent, trademark, copyright or other proprietary rights (including rights respecting the name, likeness or personally identifiable information of each and every identifiable individual person) in any and all Customer Data to authorize the use, display, processing and transmission of Customer Data in the manner contemplated by these and (ii) Customer Data and its submission and use with the Product will not violate (1) any Laws, (2) any third-party intellectual property, privacy, publicity or other rights, or (3) any of your or third-party policies or terms governing Customer Data. Other than our express obligations under Section 4 (Security and Data Privacy), we assume no responsibility or liability for Customer Data, and you are solely responsible for Customer Data and the consequences of submitting and using it with the Product.
5.3. Removals and Suspension. We have no obligation to monitor any content uploaded to the Product. Nonetheless, if Xerox believes, in its reasonable discretion, that it is required to remove any Customer Data, or receives information that Customer Data may violate applicable law or third-party rights, Xerox shall provide written notice to the Customer Representative that identifies the Customer Data and the reason(s) such that the Customer Data needs to be removed. Customer will promptly remove such Customer Data or reply to Xerox upon receipt of such written notice from Xerox with the reason(s) that such customer Data should not be removed. Unless more immediate action is required to comply with applicable law or prevent harm to Xerox or its customers, if Customer does not take the required action in accordance with the above, Xerox may remove the applicable Customer Data.
6. Fees, billing, renewals, and payment.
6.1. Monthly and Annual Plans. Except for No-Charge Products, the Product is offered either on a monthly subscription basis or an annual subscription basis and subject to the then-current subscription fees.
6.2. Renewals. Except as otherwise specified in your Order, your subscription shall automatically extend for successive Subscription Terms of a period equal to your initial Subscription Term or one-year, whichever is shorter, unless Xerox receives written notice of nonrenewal not less than thirty (30) days prior to expiration of the then-current Subscription Term. Such written notice of nonrenewal shall be in made accordance with Section 17 (Notices) or such other method as Xerox may make available. Cancelling your subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the applicable Product subscription continuing to be offered and will be charged at the then-current rates.
6.3. Adding Users. You may add users, increase storage limits, or otherwise increase your use of the Product by placing a new Order or modifying an existing Order. Unless otherwise specified in the applicable Order, we will charge you for any increased use at our then-current rates, prorated for the remainder of the then-current Subscription Term.
6.4. Payment. Customer will pay all fees specified in all Orders hereunder. Payment obligations are non-cancelable and, except as expressly set forth herein, fees paid are non-refundable. Fees will be invoiced in advance and otherwise in accordance with the relevant Order. Customer acknowledges that Xerox may suspend or terminate access to the Product immediately without notice upon nonpayment of fees due and payable to Xerox. For Orders processed on the DraftSpark site, payment terms presented to you in the process of completing your order are deemed part of these Terms. Valid payment information must be maintained at all times during the Subscription Term for your Customer Account to remain active. Customer authorizes Xerox to charge Customer all fees stated at checkout. We may use a third-party payment processor (the “Payment Processor”) to bill for use of the Product and/or Additional Services. The processing of payments will be subject to the terms, conditions, and privacy policies of the Payment Processor in addition to the terms of this Agreement. We are not responsible for any errors by the Payment Processor.
6.5. Delivery. We will deliver the login instructions for the Product to your account or through other reasonable means no later than when we have received payment of the applicable fees. You are responsible for accessing your account to determine that we have received payment and that your Order has been processed. All deliveries under these Terms will be electronic.
7. Taxes not included.
Your fees under these Terms are exclusive of any applicable Transaction Taxes. Xerox shall be responsible for assessing any applicable Transaction Taxes for the Product and any Additional Services provided to the Customer under these terms and any Order hereunder. The Customer shall pay, reimburse and indemnify Xerox for any and all Transaction Taxes. Xerox and the Customer agree to cooperate with each other to minimize Transaction Taxes to the extent legally permissible. If Customer is required to withhold or deduct Withholding Taxes from any portion of the payments due to Xerox, Customer will increase the sum payable to Xerox by the amount necessary so that Xerox receives an amount equal to the sum it would have received had Customer made no withholdings or deductions of Withholding Taxes.
8. No contingencies on other products of future functionality.
Customer agrees that its purchases hereunder are not contingent on the delivery of any future functionality or features (including future availability of the Product beyond the current Subscription Term), or dependent on any oral or written public comments Xerox or its Affiliates may make regarding future functionality or features.
9. Evaluations, trials, and betas.
Xerox may offer certain versions of the Product available at no charge, including free trial use and Beta Versions as defined below (collectively, “No-Charge Products”). Access to and use of No-Charge Products are subject to these Terms and any additional terms that may be specified in your Order. For the No-Charge Product. Xerox may modify or terminate your right to use No-Charge Products at any time and for any reason in its sole discretion, without liability to you. You understand that any pre-release and beta versions of the Product, and any pre-release and beta features within the Product, that we make available (collectively, “Beta Versions”) have not been made commercially available and that some features or functionality may be disabled or otherwise fail to function in accordance with the documentation. We make no promises that any Beta Versions will be made generally available. In some circumstances, Xerox may charge a fee for access to and use of Beta Versions, but the Beta Versions will still remain subject to this Section 9. All information regarding the characteristics, features or performance of any No-Charge Products (including Beta Versions) constitutes our Confidential Information. To the maximum extent permitted by applicable law, Xerox disclaims all obligations or liabilities with respect to No-Charge Products, including any warranty and indemnity obligations set forth in these Terms. NO-CHARGE PRODUCTS ARE SUPPLIED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY OF PERFORMANCE IN AN ERROR-FREE OR UNINTERRUPTED MANNER NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS, XEROX SHALL HAVE NO LIABILITY TO YOU FOR ANY DIRECT DAMAGES IN EXCESS OF USD $50.00 (FIFTY U.S. DOLLARS), NOR FOR ANY SPECIAL, INDIRECT, INCIDENTIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO PERFORMANCE HEREUNDER, INCLUDING WITHOUT LIMITATION COSTS ASSOCIATED WITH LOST PROFITS, LOST OPPORTUNITY, RECREATING, RELOADING, OR REPLACING LOST OR DAMAGED DATA, WHETHER THE CLAIM SOUNDS IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR ANY OTHER LEGAL THEORY AND REGARDLESS WHETHER ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
10. Proprietary Rights in the Product; Feedback.
Customer acknowledges and agrees that Xerox and its licensors own all right, title and interest in and to all intellectual property rights in the Product. Except for the limited right to access and use the Product provided in these Terms, Customer has no right to use any intellectual property of Xerox. Any rights not expressly granted herein are reserved by Xerox. If Customer (including any Authorized User) provides Xerox any comments, ideas, suggestions or other feedback (“Feedback”) regarding the Product, Customer grants Xerox an unlimited, irrevocable, perpetual, sublicensable, royalty-free license to use any such Feedback or suggestions for any purpose without any obligation or compensation to Customer or any Authorized User.
11.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer shall include Customer Data; and Confidential Information of Xerox shall include performance information relating to the Product and results of any benchmark activities. However, Confidential Information shall not include any information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
11.2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). The Receiving Party shall (a) not to use any Confidential Information of the Disclosing Party for any purpose other than fulfilling its obligations and exercising its rights under these Terms; and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement.
11.3. Compelled Access or Disclosure. The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the access or disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
12. Changes to these Terms.
Xerox reserves the right, at its discretion, to modify these Terms from time to time by posting revised Terms online. If Xerox makes a material change to the Terms, Xerox will also provide Customer, through the Customer Representative, with reasonable notice of such material change (materiality to be determined solely by Xerox in its reasonable discretion). It is Customer’s responsibility to review the revised Terms, and the continued access or use of the Product following the effective date of the revised Terms, shall constitute Customer acceptance of the revised Terms.
12.1. No-Charge Products. You must accept the revised Terms to continue using the No-Charge Products. If you object to any portion of the revised Terms, your exclusive remedy is to cease using the No-Charge Products.
12.2. Paid Subscriptions. Except as otherwise indicated below, modifications to these Terms will take effect at the next renewal of your Subscription Term and will automatically apply as of the renewal date. Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Subscription Term. If the effective date of such modifications is during your then-current Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund you any fees you have pre-paid for use of the affected version of the Product for the terminated portion of the applicable Subscription Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of these Terms in effect at the time of the Order.
12.3. Our Policies. We may modify Our Policies to take effect during your then-current Subscription Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to Our Policies that, considered as a whole, would substantially diminish our obligations during your then-current Subscription Term. Modifications to Our Policies will take effect automatically as of the effective date specified for the updated policies.
13. Term and Termination.
13.1. Term. These Terms are effective as of the Effective Date and continue until the expiration or termination of all Customer subscriptions (the “Term”).
13.2. Termination for Cause. Either party may terminate these Terms (including all related Orders) if the other party (a) fails to cure any material breach of these Terms within thirty (30) days after written notice thereof; (b) ceases operation without a successor; or (c) files for bankruptcy protection or has an involuntary petition for bankruptcy filed against it, becomes unable to pay its bills, sells or transfers property to creditors, has a liquidator or receiver appointed by a court, or is part of any other similar legal proceeding, to the extent termination is permitted under applicable law.
13.3. Refund or Payment upon Termination for Cause. Upon any termination for cause by Customer, Xerox will refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Xerox, Customer will pay any unpaid fees covering the remainder of the term of all subscriptions after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to Xerox for the period prior to the effective date of termination.
13.4. Termination for Convenience. You may choose to stop using the Product and terminate these Terms (including all then current subscriptions) at any time for any reason upon written notice to us. You acknowledge that your termination for convenience pursuant to this Section 13.4 does not entitle you to any refund of pre-paid fees and that you will pay any unpaid fees covering the remainder of the term of all subscriptions after the effective date of termination and you will not be relieved of any obligation to pay any unpaid fees for the then-current subscriptions and any such fees that are outstanding will become immediately due and payable. Xerox may terminate your right to access and use a No-Charge product at any time for any reason in its complete discretion upon fifteen (15) days’ prior written notice.
13.5. Effects of Termination. Upon any expiration or termination of these Terms, you must cease using the Product. Xerox will grant you temporary limited access to the Product for a period not to exceed thirty calendar (30) days for the sole purpose of permitting you to retrieve lawful Customer Data, provided that all undisputed amounts owed to Xerox have been paid in full. Notwithstanding the foregoing, if you terminate your subscription for convenience pursuant to Section 13.4, Xerox shall not be obligated to provide access to Customer Data and you should make sure to export Customer Data using the functionality of the Product during the applicable Subscription Term. Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise.
13.6. Survival. The following provisions will survive any termination or expiration of these Terms: Sections 4, 5, 6, 10, 13, 15, 16, 17, and 19.
14. Warranties and Disclaimer.
14.1. Mutual Warranties. Each party represents and warrants that it has validly entered into these Terms and has the legal power to do so.
14.2. Our Warranties. Xerox warrants that (a) the Product shall materially comply with the functionality, performance and other specifications stated in the Documentation and (b) it will use commercially reasonable efforts to prevent introduction of viruses, Trojan horses or similar harmful materials into the Product (but we are not responsible for harmful materials submitted by you or Authorized Users).
14.3. Warranty Remedy. We will use commercially reasonable efforts, at no charge to you, to correct reported non-conformities with the warranties in this Section 14. If we determine corrections to be impracticable, either party may terminate the applicable Subscription Term. In this case, you will receive a refund of any fees you have pre-paid for use of the Product for the terminated portion of the applicable Subscription Term. The Performance Warranty will not apply: (i) unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity, (ii) if the non-conformity was caused by misuse, unauthorized modifications or third-party products, software, services or equipment or (iii) to No-Charge Products. Our sole liability, and your sole and exclusive remedy, for any breach of the Performance Warranty are set forth in this Section 14.
14.4. WARRANTY DISCLAIMER. EXCEPT AS STATED ABOVE: (A) CUSTOMER’S USE OF OR RELIANCE ON THE PRODUCT IS VOLUNTARY, AT CUSTOMER’S SOLE RISK, AND SHOULD ONLY BE UNDERTAKEN FOLLOWING CUSTOMER’S INDEPENDENT ASSESSMENT OF SAME FOR CUSTOMER PURPOSES; AND (B) THE PRODUCT IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, AND XEROX EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT XEROX DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT WE WILL PRESERVE OR MAINTAIN CUSTOMER DATA WITHOUT LOSS. THE WARRANTY DISCLAIMERS SET FORTH HEREIN MAY NOT APPLY IN CERTAIN JURISDICTIONS, IN WHICH CASE THE WARRANTIES HEREUNDER SHALL BE THE MINIMUM REQUIRED BY APPLICABLE LAW. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS OR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
15. Limitation of Liability.
15.1. Limitation of Liability. EXCEPT FOR (A) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 16 (MUTUAL INDEMNIFICATION), OR (B) DAMAGES ARISING OUT OF EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES, BILLING, RENEWAL, PAYMENT) ABOVE.
15.2. Exclusion of Consequential and Related Damages. EXCEPT FOR (I) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 16 (MUTUAL INDEMNIFICATION), OR (II) DAMAGES ARISING OUT OF EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST BUSINESS OPPORTUNITY, LOS PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
15.3. Nature of Claims and Failure of Essential Purpose. The limitations hereunder apply with respect to all legal theories, whether in contract, tort or otherwise. The provisions of this Section 15 (Limitation of Liability) allocate the risks under this Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into this Agreement.
16. Mutual Indemnification.
16.1. Customer Indemnification. Customer shall defend Xerox and its Affiliates, and its and their respective officers, directors, employees and contractors, from and against any and all third party claims, actions and demands alleging (i) Customer Data or Customer’s use the Product with products not provided by Xerox infringes or misappropriates the intellectual property rights of a third party or (ii) Customer’s use of the Product violates applicable law (in either case, a “Claim Against Xerox”), and shall indemnify Xerox for any damages, attorney fees and costs finally awarded against Xerox as a result of, or for any amounts paid by Xerox under a court-approved settlement of, a Claim Against Xerox.
16.2. Xerox Indemnification. Xerox shall defend Customer and its Affiliates, and its and their respective officers, directors, employees and contractors, from and against any and all third party claims, actions and demands alleging that the use of the Services as permitted hereunder infringes or misappropriates a third party’s intellectual property right (a “Claim Against Customer”), and shall indemnify Customer for any damages, attorney fees and costs finally awarded against Customer as a result of, and for amounts paid by Customer under a court-approved settlement of, a Claim Against Customer; provided, however, that Xerox shall have no liability under this Section 16.2 to the extent a Claim Against Customer arises from (a) Customer Data; (b) the use of the Product in combination with any non-Xerox product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (c) Customer’s negligence, misconduct, or breach of this Agreement; or (c) any modification of the Product that is not performed by, on behalf of, or at the direction of Xerox. If the Product is, or in Xerox’s opinion use of the Product is likely to be, enjoined due to the infringement or misappropriation of a third party’s intellectual property right, Xerox may, in its sole discretion either substitute for the Software substantially functionally similar programs or procure for Customer the right to continue using the Product; or if the foregoing is commercially impracticable, terminate the applicable subscription(s) and refund Customer any prepaid fees covering the remainder of the term of the applicable subscription(s) after the effective date of termination.
16.3. Indemnification Procedure. The indemnified party will provide the indemnifying party with prompt written notice of any claim, suit or demand, the right to assume the exclusive defense and control of any matter that is subject to indemnification, and cooperation with any reasonable requests assisting the indemnifying party’s defense and settlement of such matter.
16.4. Exclusive Remedy. This Section 16 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.
All notices under these Terms shall be in writing. Customer authorizes Xerox to direct all notices to the Customer Representative. Notices will be deemed given by Xerox two (2) business days after being sent to the Customer Representative at the email address or mailing address provided during Customer Account creation sign-up process. You consent to receive notices by email and agree that any such notices that Xerox sends You electronically will satisfy any legal communication requirements. Notices to Xerox shall be deemed given (a) two (2) business days after being sent from the email address associated with the Customer Representative to the following email address: email@example.com or (b) given two (2) business days after having been sent by commercial overnight carrier with written proof of delivery or five (5) business days after having been sent certified mail, certified mail, return receipt requested to Xerox DraftSpark (Attn: Terms of Service Notices), 3333 Coyote Hill Road, Palo Alto, CA 94304. A party may change its email or mailing address by giving the other written notice as described above.
18. Changes to the Product.
You acknowledge that the Product is an on-line, subscription-based product, and that in order to provide improved customer experience we may make changes to the Product, and we may update the applicable Documentation accordingly. Subject to our obligation to provide the Product and Additional Services under existing Orders, we can discontinue any the Product, any Additional Services, or any portion or feature of any the Product version for any reason at any time without liability to you.
19. General Provisions.
19.1. Publicity. Customer grants Xerox the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on Xerox ’s website and in other public or private communications with existing or potential Xerox customers, subject to Customer’s standard trademark usage guidelines as provided to Xerox from time-to-time. Xerox will promptly stop use of Customer’s company name and logo under this section upon your written request.
19.2. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
19.3. Waiver. Failure or delay of any party to exercise any right or remedy under the Terms or to require strict performance by another party of any provision of these Terms shall not be construed to be a waiver of any such right or remedy or any other right or remedy hereunder.
19.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect consistent with the intent of the parties.
19.5. Assignment. The rights and obligations of the parties under these Terms are personal and may not be assigned or transferred by Customer without the prior written consent of Xerox which consent shall not be unreasonably withheld, except that Customer may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Customer’s assets or voting securities. Any attempt by Customer to assign or transfer its rights or delegate its obligations hereunder without such prior written consent shall be null and void.
19.6. Governing Law; Jurisdiction. These Terms will be governed and interpreted in accordance with the laws of the State of New York, USA, without regard to its conflict of laws principles. Any dispute arising from or relating in any way to the Product or these Terms will be brought exclusively in the Federal or State courts located in the State of New York and Customer irrevocably agree to submit to the jurisdiction of such courts.
19.7. Export Control. The Product is subject to export restrictions by the United States government and may be subject to import restrictions by certain foreign governments. You agree to use the Product only for purposes that are permitted by these Terms and in accordance with all applicable laws, regulations, and other legal requirements in the relevant jurisdictions. You agree to comply with all applicable export controls, including, but not limited to, the United States Department of Commerce’s Export Administration Regulations and sanctions programs administered by the United States Treasury Department’s Office of Foreign Assets Control. You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Product or any content or results generated by use of the Product (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list (collectively, “Prohibited Persons”); (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that (i) you are not located in, under the control of, or a national or resident of any such prohibited country and (ii) no Customer Data is controlled under the U.S. International Traffic in Arms Regulations or similar Laws in other jurisdictions. You also certify that you are not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person. You agree not to use or provide the Product for any prohibited end use, including to support any nuclear, chemical, or biological weapons proliferation, or missile technology, without the prior permission of the United States government.
19.9. Conflicts. In event of any conflict between the main body of these Terms and Our Policies, Our Policies will control with respect to their subject matter.
19.10. Interpretation. As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of these Terms is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.
19.11. Independent Contractors. The parties are independent contractors. These Terms will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.
“Additional Services” means any additional support, training, configuration or other services related to the Product that we may make available and provide to you, as identified in an Order. For the avoidance of doubt, Additional Services do not include the standard level of support included in your subscription.
“Administrators” mean the personnel designated by Customer to administer Customer’s account and to added additional Authorized Users on your behalf.
“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.
“Documentation” means our standard published documentation for the Product.
“Authorized User” means an individual Customer invites or authorizes to use the Product under Customer’s account, and who has been supplied a user identification and password. Authorized Users may include, for example, Customer’s employees, consultants, contractors and agents acting on behalf of Customer.
“Customer Data” means any data, content, code, video, images or other materials of any type that you (including any of your Authorized Users) submit to the Product. In this context, “submit” (and any similar term) includes submitting, uploading, transmitting or otherwise making available Customer Data to or through the Product.
“End User Account” means an account established under Customer’s primary account to enable an Authorized User to use or access the Product.
“HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented.
“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.
“Order” means the applicable online order page(s), flows and processing or a written ordering document executed by Customer and Xerox, describing the products and services you are ordering from us and, as applicable, their permitted scope of use. As applicable, the Order will identify: (i) the Product(s), (ii) the number of Authorized Users, Subscription Term, storage capacity or limits, or other scope of use parameters and (iii) (for paid Orders) the amount or rate you will be charged, the billing and renewal terms, applicable currency, and form of payment. Orders may also include Additional Services and No-Charge Products.
“Subscription Term” means your permitted subscription period for the Product, as set forth in the applicable Order.
“Support” means support for the Product. Your Support level will be specified in the applicable Order.
“Transaction Taxes” means any and all taxes that are required to be paid in respect of any transaction and resulting amounts payable under these Terms and any Order, including but not limited to sales, use, value added taxes, services, rental, excise, transactionally-based gross receipts, and privilege taxes, plus any interest and/or penalty thereon. Transaction Taxes do not include taxes on Xerox’s income, capital, or employment, or taxes for the privilege of doing business.
“Withholding Taxes” means any and all taxes or amounts that the Customer is required by applicable law to withhold or deduct from any amounts payable pursuant to these Terms and any Order.