Terms Of Use

1. Services

1.1. Provision of Services. McorpCX will make XOS Pulse (“Services”) available to Customer pursuant to these Terms of Use upon Customer’s registration of an account through https://app.xospulse.com (the “Website”). Customer agrees that its access to Services under these Terms of Use are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by McorpCX regarding future functionality or features. Customer’s use of the Services includes the right to access all functionality available as specified in the subscription level purchased as of the date of subscription. Subsequent Services, enhancement, updates or new offerings added to the Services may be made by McorpCX in its sole discretion. McorpCX will determine at its sole discretion whether access to any other such new Service enhancements will require an additional fee or be offered at no additional charge. Terms of Use will apply to any purchased subscription level, updates, upgrades and new modules or offerings subsequently provided by McorpCX to Customer as part of the Services.

1.2. Account. To access and utilize the Services, you must register an account. Customer affirms that Customer is not prohibited from using the Services under the laws of the United States or any other relevant jurisdiction. During registration, you must provide accurate, current, and comprehensive information and ensure the account information remains up to date. The registration of more than one account or the transfer of an existing Customer account to another person or entity requires McorpCX’s prior written approval. Customer acknowledges and agrees that it must maintain the confidentiality of the account credentials and must not disclose them to any third party, except its Users. Customer is solely responsible for all activities that transpire through Customer’s Account.

1.3. Free-Tier. Customer acknowledges that McorpCX may offer certain Services on a free-tier basis with limited functionality, as determined by McorpCX at its sole discretion. McorpCX reserves the right, at any time and without condition, to introduce fees for any such free-tier Services. In the event that McorpCX decides to charge fees for free-tier Services, Customer will be provided with thirty (30) days' advance written notice (which may include email or in-application notifications). Customer will then have the option to agree to the applicable fees in accordance with McorpCX’s published payment terms or discontinue use of the affected Service.

1.4. Payment. All Fees are due and payable as set forth on the Subscription page on the Website. Fees shall be paid in full by Customer within thirty (30) days of the invoice date unless otherwise specified on the Subscription page. In the event of non-payment, McorpCX reserves the right to suspend or terminate access to the Services after providing Customer with ten (10) days' written notice of non-payment. Any overdue amounts shall accrue interest at the rate of 1.5% per month (or the maximum rate permitted by law, if less) from the due date until the date of payment. Customer shall be responsible for all reasonable costs incurred by McorpCX in collecting overdue Fees, including attorney’s fees and legal expenses.

2. Terms Of Use Of Services

2.1. Provision of Services. McorpCX will: (i) host and provide Customer access to Services through the Website (or other mobile or desktop application made available by McorpCX); (ii) provide email tech support; (iii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, with minimal downtime, except for: (a) planned downtime (of which McorpCX will endeavor to provide at least 48 hours’ notice in advance of the maintenance time), or (b) any unavailability caused by circumstances beyond McorpCX’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving McorpCX’ employees), Internet service provider failures or delays, or the unavailability or modification by third parties of Third Party Offerings; (iv) maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data (the same as McorpCX uses to protect its data); (v) provide the Services in accordance with applicable laws and government regulations.

2.2. Content License. Subject to the terms and conditions of these Terms of Use, including McorpCX’s confidentiality obligations, Customer hereby grants McorpCX a limited, non-exclusive, royalty-free, worldwide license to use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for McorpCX to provide the Services to Customer. To the extent that receipt of the Customer Data requires that McorpCX utilize any account information from a third-party service provider (such as Salesforce.com), Customer shall be responsible for obtaining and providing such passwords, and McorpCX hereby agrees to access and use the Customer Data solely for Customer’s benefit and as set forth in this Section and these Terms of Use. As between McorpCX and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Note that because the Service is a hosted, online application, McorpCX, or its third-party partners, occasionally may need to notify all Users of important announcements regarding the operation of the Service.

2.3. Customer’s Responsibilities. Customer is responsible for its Users’ compliance with these Terms of Use, for its Users’ use of the Services, and for ensuring that Users maintain the confidentiality of their passwords and usernames. Customer agrees that it will not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than to Users or as otherwise contemplated by these Terms of Use; (ii) use the Services to collect, transmit or process (a) infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (b) any data regarding an individual’s financial or economic identity, sexual orientation, religious beliefs, medical or physical identity, including any information comprised of either “Protected Health Information” subject to and defined by the Health Insurance Portability and Accountability Act, or an individual’s first name and last name, or first initial and last name, in combination with any one or more of the following data elements that relate to such individual: Social Security number, driver's license number or state-issued identification card number, financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to a resident’s financial account; (c) send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; (iii) interfere with or disrupt the integrity or performance of the Services; or (iv) attempt to gain unauthorized access to the Services or its related systems or networks; (v) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Services; (vi) access the Services for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Services; (vii) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Services or any part thereof or otherwise attempt to discover any source code or modify the Services.

2.4. Temporary Suspension. McorpCX monitors all use of the Services for security and operational purposes. McorpCX may temporarily suspend Customer’s or its Users’ access to the Services if either Customer or its User is engaged in, or McorpCX in good faith suspects is engaged in, any unauthorized conduct including any violation of the terms of these Terms of Use, any applicable law. McorpCX will attempt to contact Customer prior to or contemporaneously to such suspension, provided, however, that McorpCX’s exercise of the suspension rights herein shall not be conditioned upon Customer’s receipt of any notification. Customer agrees to (i) notify McorpCX immediately of any unauthorized use of any password or account or any other known or suspected breach of security impacting the Services; (ii) report to McorpCX immediately and use reasonable efforts to stop immediately any copying or distribution of Customer Data that is known or suspected by Customer or its User as being unlawful or unauthorized; and (iii) not impersonate another User or provide false identity information to gain access to or use the Services. A suspension may take effect for Customer’s entire account and Customer understands that such suspension would therefore include all User accounts. Customer agrees that McorpCX will not be liable to Customer or to any User if McorpCX exercises its suspension rights as permitted by this Section.

2.5. Third Party Offerings. The Services may rely on or require that Customer access Third Party Offerings. Third Party Offerings include, but are not limited to, Bubble, a software development platform. Customer understands and agrees that the availability of the Services, or certain features and functions of the Services, is dependent on the corresponding availability of Third-Party Offerings or specific features and functions of Third-Party Offerings. McorpCX will not be liable to Customer if changes in Third Party Offerings cause the unavailability the Services or any feature or function of the Services. To the extent that McorpCX requires that Customer grant McorpCX authorizations, passwords or other user credentials to a Third Party Offering (“McorpCX Access Codes”) to retrieve Customer Data or interoperate with the Service, Customer shall promptly provide such McorpCX Access Codes. McorpCX shall not share, reassign, divulge or disclose any McorpCX Access Codes, nor permit or allow any third party to share, reassign, divulge, disclose or use any McorpCX Access Codes, except to McorpCX employees or authorized contractors specifically engaged in the performance of the Services and solely for that purpose. McorpCX Access Codes shall constitute Customer’s Confidential Information under these Terms of Use.

2.6. Accuracy of Customer’s Contact Information; Email Notices from McorpCX. Customer agrees to provide accurate, current and complete information as necessary for McorpCX to communicate with Customer from time to time regarding the Services, issue invoices, accept payment, or other account-related purposes. Therefore, Customer agrees to keep any online account information current and inform us of any other changes in Customer’s legal business name, address, email address and phone number. Customer agrees to accept emails from McorpCX at the email address specified by its Users for login purposes. McorpCX may provide any and all notices, statements, and other communications to Customer through either email, posting on the Services (or other electronic transmission) or by mail or express delivery service. In addition, Customer agrees that McorpCX may rely and act on all information and instructions provided to McorpCX by Users from the above-specified email address.

3. Proprietary Rights

3.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, McorpCX reserves all rights, title and interest in and to the Services and Third-Party Offerings, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. Neither Customer nor any Users will delete or in any manner alter the copyright, trademark, and other proprietary notices of McorpCX, if any, appearing on any Documentation.

3.2. Customer Data. As between McorpCX and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data.

3.3. Suggestions. McorpCX shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer and its Users relating to the Services. Customer acknowledges and agrees that any Services incorporating such suggestions, enhancement requests, recommendations or other feedback shall be the sole and exclusive property of McorpCX, and all such recommendations shall be free from any confidentiality restrictions that might otherwise be imposed upon McorpCX pursuant to Section 4 Confidentiality below.

3.4. Deliverables. As between McorpCX and Customer, Customer exclusively owns all rights, title and interest in and to any deliverables that constitute Customer Data or a modification, translation, abridgment, adaptation or other derivative work of the Customer Data, or any other deliverable expressly identified as being owned by Customer in writing confirmed by McorpCX (“Customer Deliverables”), and McorpCX hereby assigns and transfers to Customer any rights, title or interest that McorpCX may acquire in or to any Customer Deliverables upon receipt of payment in full from Customer. Nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, source code samples, templates, libraries, know-how, techniques and expertise (“Tools”) used by McorpCX or third-party providers to develop the deliverables, and to the extent such Tools are delivered with or as part of the Customer Deliverables, they are licensed to Customer on a limited, non-exclusive, royalty-free basis solely for the duration of Customer's authorized use of the Services. This license is non-transferable and terminable upon the expiration or termination of these Terms of Use or Customer’s access to the Services.

3.5. Statistical Information. Notwithstanding anything else in these Terms of Use, McorpCX and its product partners may monitor Customer’s use of the Services and use data related to Customer’s use in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services. Customer agrees that McorpCX may make such information publicly available, provided that such information does not incorporate any Customer Data and/or identify Customer or its Confidential Information. McorpCX retains all intellectual property rights in such information.

3.6. Aggregated Customer Information. Notwithstanding anything else in these Terms of Use, McorpCX may use Customer Data for use in an aggregate and anonymous manner. Customer agrees that McorpCX may use its aggregated Customer Data and make such information publicly available, provided that such information does not identify Customer or its Confidential Information. McorpCX retains all intellectual property rights in such information.

4. Confidentiality

4.1. Definition of Confidential Information: “Confidential Information” means all confidential or proprietary information of a party (“Disclosing Party”) disclosed 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, including the terms and conditions of these Terms of Use, business information, specifications, research, software (including but not limited to, the Services, flow of screens, and product documentation), trade secrets, designs, drawings, flow charts, data, computer programs, marketing plans, budget figures, and other financial and business information, or any such information of clients, parents, affiliates, subsidiaries or agents of a party.

4.2. Treatment of Confidential Information. The Receiving Party shall not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms of Use, except with the Disclosing Party’s permission.

4.3. Permitted Disclosure. The obligation of nondisclosure set forth herein shall not apply to any Confidential Information that: (i) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party; (ii) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of any obligation owed to the Disclosing Party; (iii) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to the Disclosing Party; or (iv) is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information (except for patentable subject matter, which shall not be subject to this exception); or (v) the Receiving Party is required to disclose by any applicable law, by any rule or regulation of any court or government agency of competent jurisdiction, or pursuant to legal process; provided that the Receiving Party provides the Disclosing Party with prompt written notice of the requirement to disclose, reasonable assistance in the opposing or limiting of such disclosure and limits such disclosure to that strictly required by such court, government agency or legal process.

4.4. Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Disclosing Party will be entitled, in addition to any other available remedies, to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.

5. Warranties; Disclaimers

5.1. Warranties. Each party warrants that it has the power to enter into these Terms of Use. McorpCX warrants to Customer that the Services will be performed in all material respects with the product documentation.

5.2. General Disclaimers. THE WARRANTIES EXPRESSLY SET FORTH IN SECTION 5 ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY MCORPCX. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, MCORPCX, ITS LICENSORS AND PRODUCT PARTNERS MAKE NO OTHER REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CUSTOMER DATA. MCORPCX, ITS LICENSORS AND PRODUCT PARTNERS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CUSTOMER DATA IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY MCORPCX, ITS LICENSORS AND PRODUCT PARTNERS. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. MCORPCX IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. Service Disclaimers. EXCEPT AS EXPRESSLY SET FORTH HEREIN, MCORPCX DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S OR ITS USERS’ SPECIFIC NEEDS, ACHIEVE A PARTICULAR MARKETING OR OTHER BUSINESS RESULT, THAT IS ERROR FREE, THAT CUSTOMER OR ITS USERS OR CONSUMERS WILL BE ABLE TO ACCESS OR USE THE SERVICES WITHOUT PROBLEMS OR INTERRUPTIONS, OR THAT THE WEBSITE AND SERVICES ARE NOT SUSCEPTIBLE TO INTRUSION, ATTACK OR COMPUTER VIRUS INFECTION.

6. Indemnification

6.1. Indemnification by McorpCX. McorpCX, at its expense, will defend and pay any settlement amounts and damages, costs and expenses (including reasonable attorneys’ fees) awarded by a court of final jurisdiction arising out of any third party claim, suit or proceeding alleging that Customer’s use of the Services in accordance with the terms and conditions of these Terms of Use infringes a third party’s United States copyright or patent issued as of the Effective Date. The foregoing obligation shall not apply with respect to a claim of infringement if such claim arises out of (i) Customer Data; (ii) use of the Services in combination with any software, hardware, network or system not supplied by McorpCX where the alleged infringement relates to such combination; (iii) any modification or alteration of the Services; (iv) Customer’s continuance of the allegedly infringing activity after being informed of modifications that would have avoided the alleged infringement; or (v) Customer’s violation of applicable law. If any claim which McorpCX is obligated to defend has occurred, or in McorpCX’ determination is likely to occur, McorpCX may, in its sole discretion and at its option and expense (a) obtain for Customer the right to use the allegedly infringing item, (b) substitute a functionality equivalent, non-infringing replacement for such item, (c) modify such item to make it non-infringing and functionally equivalent, or (d) terminate the subscription to the Services and refund to Customer fees received by McorpCX for the infringing items in an amount pro-rated to reflect the period of time between the date Customer was unable to use the Services due to such claim and the remaining days in the Term.

6.2. Indemnification by Customer. Customer, at Customer’s expense, will defend and pay any settlement amounts or damages awarded by a court of final jurisdiction arising out of any third party claim, suit or proceeding (i) alleging that the Customer Data infringes any trade secret, trademark, copyright, or patent issued as of the Effective Date of any third party; or (ii) Customer’s breach of these Terms of Use.

6.3. Conditions. The parties’ obligations under this Section are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim under this Section; (ii) giving the indemnifying party sole control of the defense or settlement of the claim; and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party. The rights and remedies set forth in this Section are subject to the limitations and exclusions set forth in Section 7 below and are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable third-party claim.

7. Limitation Of Liability

7.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OF USE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS OF FEES OWED TO MCORPCX FOR ITS PROVISION OF SERVICES.

7.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL MCORPCX AND/OR ITS LICENSORS AND/OR ITS PRODUCT PARTNERS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THESE TERMS OF USE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CUSTOMER DATA OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CUSTOMER DATA, EVEN IF MCORPCX AND/OR ITS LICENSORS AND/OR ITS PRODUCT PARTNERS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE REASONABLY FORESEEN THEM.

8. General

8.1. Relationship. The relationship between the parties created by these Terms of Use is that of independent contractors and not partners, joint ventures or agents. This is a non-exclusive arrangement.

8.2. Entire Understanding. These Terms of Use (and any subscription terms set forth on the Website) constitute the entire understanding between the parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between McorpCX and the Customer with respect to the subject matter of these Terms of Use. To the extent of any conflict or inconsistency between the provisions in the body of these Terms of Use and information set forth on the Website, these Terms shall prevail unless expressly stated otherwise. Notwithstanding any language to the contrary therein, no terms or conditions stated in these Terms of Use or in any other ordering documentation shall be incorporated into or form any part of these Terms of Use, and all such terms or conditions shall be null and void.

8.3. Modification and Waiver. Except for McorpCX’s modification or update of the product documentation, the Services, or any pricing or other policies referenced by a URL herein, or as necessary to comply with applicable law, rules, regulations, no modification of these Terms of Use, and no waiver of any breach of these Terms of Use, shall be effective unless in writing and signed by both parties. No waiver of any breach of these Terms of Use, and no course of dealing between the parties, shall be construed as a waiver of any subsequent breach of these Terms of Use. A determination that any provision of these Terms of Use is invalid or unenforceable shall not affect the other provisions of these Terms of Use.

8.4. Publicity. McorpCX may reference Customer’s name as an XOS Pulse subscriber in McorpCX’s business development and marketing efforts, including without limitation on its web site.

8.5. Assignment. Either party may assign these Terms of Use in its entirety, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of these Terms of Use upon written notice to the assigning party. In the event of such a termination, McorpCX shall refund to Customer any prepaid fees covering the remainder of the Services Terms after the effective date of termination. Subject to the foregoing, these Terms of Use shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. There are no third-party beneficiaries to these Terms of Use.

8.6. Export. The Services utilize software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the Service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Services may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. McorpCX, its licensors and Product Partners make no representation that the Service is appropriate or available for use in other locations. Each party shall be solely responsible for its required compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Customer Data contrary to law is prohibited. None of the Customer Data, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.

8.7. Staffing. McorpCX shall be responsible for staffing decisions with respect to its personnel and the provision of any services under these Terms of Use and shall have the right to remove or replace any of its personnel assigned to perform any Services under these Terms of Use.

8.8. Force Majeure. Except for performance of a payment obligation, neither party shall be liable under these Terms of Use for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control. If the force majeure continues for more than thirty (30) calendar days, then either party may terminate the subscription to the Services for convenience upon written notice to the other party.

9. Definitions

9.1. Services. Services mean the online, web-based XOS Pulse product accessed via the Website and/or other designated websites or application as made available by McorpCX from time to time.

9.2. Third-Party Offerings. McorpCX relies upon the offerings (i.e., the services, applications and products) of product partners to deliver Services to its Customers. Third Party Offerings include, but are not limited to, Bubble, a software development platform.

9.3. Customer Data. Customer Data means all data provided by Customer submitted, stored, posted, displayed, transmitted or otherwise used together with the Services.

9.4. User. User means individuals who are authorized by McorpCX and the Customer to access and use the Services, and who have been supplied user identifications and passwords for the purpose of accessing the Services. Users may include Customer’s employees, consultants, contractors and agents.

9.5. Fees. Fees means the agreed upon fees in exchange for Services as set forth on the Subscription page on the Website.

9.6. Services Term. Services Term means the agreed upon period of time the Services take place as set forth in the subscription page on the Website.

9.7. Term. Term means the period starting when the Customer registers for an account or subscribes to the Services through the Website and continues until the subscription expires pursuant to the terms on the Website or is terminated by either party in accordance with these Terms of Use.