PLEASE READ CAREFULLY: THIS CUSTOMER AGREEMENT (“Customer Agreement”) is between the customer who orders Services (“Customer”) and the applicable EXPRESSION Inc. service (“XPR”) identified below:

For Customers whose principal place of business is located in Canada, “XPR” is defined as EXPRESSION Incorporated.

 

For Customers whose principal place of business is located outside of the Canada, “XPR” is defined as EXPRESSION Incorporated.

 

Customer’s use of and access to XPR’s services are governed by this Customer Agreement, XPR’s Acceptable Use Policy, and the terms of Customer’s Order (collectively referred to as the “Agreement”).

 

This Agreement is the complete and exclusive agreement between Customer and XPR regarding its subject matter and supersedes and replaces any agreement, understanding, or communication, whether written or oral, prior or contemporaneous regarding such subject matter.

 

BY CHOOSING TO SIGNUP TO XPR YOU AGREE TO THE TERMS OF THIS AGREEMENT.

 

DEFINED TERMS.

 

The following words used in this Customer Agreement have the following meanings:

 

“Acceptable Use Policy” or “AUP” means XPR’s Acceptable Use Policy, as XPR may amend from time to time.

 

“Beta Period” means the period of time before XPR makes available the general release version of any services offered to Customer by XPR, wherein access to such services is via an XPR web site associated with or part of the Services.

 

"Business Day” means 8:00 a.m. – 5:00 p.m. Monday through Friday, Canada Pacific time, excluding federal public holidays in Canada.

 

“Confidential Information” means information, technology or services disclosed or made available by XPR to Customer that Customer should reasonably understand to be confidential, including: (i) unpublished or otherwise not publicly available or accessible prices and other terms of service, audit and security reports, product development plans, data center designs, XPR service configuration designs, services, and other proprietary information or technology; and (ii) information that is marked or otherwise designated as confidential.

 

“Content” means any software, online service, feature or technology, data or other content that Customer, Customer’s employees, Customer’s contractors, and Customer’s end users (collectively, “Service Users”) may provide to XPR through its user interface pursuant to this Agreement. Content includes, but is not limited to, any of the foregoing that Service Users (i) upload to XPR’s Services, and/or (ii) create and/or modify using the Services.

 

“Documentation” means any documentation which XPR makes available to Customer and is associated with the Services, including URLs for websites, technical information, policies or terms contained in or linked to by webpages or applications associated with the Services.

 

“Feedback” means any and all suggestions, comments, improvements, or other feedback about the Services that anyone provides to XPR either directly or indirectly.

 

“Order” means either: (i) Customer’s request for or configuration of Services, where such request for or configuration of Services is made via a web site associated with or part of the Services, or (ii) any other written order (either in electronic or paper form) that XPR provides to Customer that describes the Services Customer is purchasing, and that is signed by Customer, either manually or electronically. For the avoidance of doubt, “Order” does not include, during the Beta period, Customer’s request for access to the Services prior to receiving an invitation from XPR to create an account associated with the Services during any Beta Period.

 

“Personally Identifiable Information” or “PII” means any data, either alone or in combination with other information, by which a natural person can be identified or located, or that can be used to identify or locate a natural person.

 

“Programmatic Interface” means any code, method, or process used to interface with XPR Services, including an application programming interface (“API”), XPR customer dashboard, command line interface (“CLI”), language binding or wrapper.

 

“Services” means any services, websites, platforms, portals, Documentation, and software associated with the XPR service and any associated services, websites, platform, and portals (including Programmatic Interfaces, Cloud Management Platforms and any other code or capability provided by XPR) described in or provided to Customer as a result of the Order.

 

ELIGIBILITY

 

2.1 Age. Customer must be at least 18 years of age or otherwise have the legal capacity to enter into this Agreement. If Customer is entering into this Agreement on behalf of an employer, company, or other legal entity, Customer must have the legal right and authority to enter into this Agreement and bind that entity to this Agreement.

 

2.2 Account Creation. Customer must create an account associated with the Services in order to be eligible to receive the Services.

 

EXPRESSIONS'S OBLIGATIONS.

 

3.1 Provision of Services. Contingent on XPR’s acceptance of Customer’s Order and subject to this Agreement, XPR agrees to provide the Services. XPR may change, discontinue, add, modify, re-price or remove features or functionality from the Services from time to time.

 

3.2 Security. Without limiting Sections 6 and 10, XPR will use commercially reasonable efforts to implement reasonable and appropriate security measures to assist Customer to secure Customer’s Content.

 

3.3 Support. Support will be provided as detailed here.

 

3.4 Future Availability. With regard to Services made available during any Beta Period, while XPR intends to commercially release the Services, XPR reserves the right at any time to not release the Services or, even if released, to alter prices, features, specifications, capabilities, functions, release dates, general availability, or other characteristics of the Services.

 

3.5 Service Levels. The Service Level Agreement(s) (“SLAs”) listed here are part of this Agreement for those Services Customer is buying.

 

PRIVACY

 

4.1 Collection of PII. Customer’s access to the Services is via an XPR-controlled website. As such, Customer’s interaction with the website, and any PII that may be collected by the website, is governed by the XPR Terms of Use and Privacy Statement.

 

4.2 XPR Access to Content. The parties acknowledge that the structure of the XPR systems used in connection with the Services makes it technically possible for XPR to access Content; however, the nature of the Services is such that direct access to Content by XPR is not intended. In the event XPR is required to access Content, XPR will not use or disclose Content to non-XPR third parties except: (i) with consent or as otherwise directed or instructed by Customer; (ii) in furtherance of or in connection with performing Services pursuant to this Agreement; (iii) to respond to duly authorized information requests of police, law enforcement, or other governmental authorities; (iv) to comply with any applicable law, regulation, subpoena, discovery request or court order; (v) to investigate and help prevent security threats, fraud, or other illegal, malicious, or inappropriate activity; (vi) to enforce/protect the rights and properties of XPR or its affiliates or subsidiaries; or (vii) with the prior informed consent of the data subject about whom the PII pertains.

 

4.3 Data Controller. Customer is and shall remain the data controller of the Content it uploads or provides as part of the Services. XPR is a service provider to Customer and has the role of data processor. XPR does not own or otherwise act as data controller of the Content. It is Customer’s responsibility to verify that the security and privacy protections offered by the Services are adequate and in compliance with all applicable laws governing the type of data included in the Content which is uploaded in or provided to the Services.

 

4.4 Cross Border Data Transfers. For Customers that are required to comply with Canadian (or country specific) data protection laws and regulations governing cross-border data transfer, be advised that the data centers in which the primary infrastructure for the Services and Content are housed in Canada, but may leverage data center facilities outside Canada based on customer requirements and any obligations of XPR pursuant to this Agreement may be performed by any XPR company, subsidiary, affiliate or authorized third party worldwide.

 

USE OF AND ACCESS TO THE SERVICES

 

5.1 Use and Access. Subject to the terms and conditions of this Agreement, for the duration of the term of this Agreement, XPR hereby grants Customer a non-exclusive, non-transferable, non-sublicensable (except to the extent required to exercise rights under Section 5.1(ii)), revocable license in the Services solely to: (i) use and access the Services for internal purposes; and (ii) use the Services to create, offer and provide services created by Customer for access and use by Customer’s customers and end users (“Customer Offering”). Customer may access the Services via the online control panel, or via a Programmatic Interface or online-based Management Panels that XPR provides to Customer. XPR may modify the Services, its control panel or Programmatic Interfaces at any time, or may transition to new Programmatic Interfaces. This Agreement shall supersede any license terms included with the code in the file named “COPYING” or “LICENSE” or like caption in the Programmatic Interfaces, except where such code is governed by an open source license.

 

5.2 Resale of Services. Customer may not resell the Services to Customer’s customers and end users except as provided in Section 14 of this Agreement.

 

CUSTOMER OBLIGATIONS AND REPRESENTATIONS AND WARRANTIES

 

6.1 Obligations. Customer agrees to do each of the following: (i) comply with all applicable laws, rules and regulations, including those regarding data privacy, copyright, and export control, and the terms of this Agreement; (ii) pay the fees for the Services when due; (iii) use reasonable security precautions for providing access to the Services by its employees or other individuals to whom Customer provides access including private keys and other security options; (iv) cooperate with XPR’s reasonable investigation of outages, security problems, and any suspected breach of this Agreement; (v) comply with all license terms or terms of use for any software, content, service or website (including Content) (whether made available to Customer through the Services by XPR or a third party) Customer uses or accesses when using the Services; (vi) give XPR true, accurate, current, and complete information (“Account Information”) when establishing Customer’s account associated with the Services; (vii) keep Customer’s billing contact and other Account Information up to date; (viii) be responsible for the use of the Services or Customer Offering by Customer, Service Users, any person to whom Customer has given access to the Content or Services, and any person who gains access to Customer’s Content or the Services; (ix) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and immediately notify XPR of any known or suspected unauthorized use of Customer’s account, the Services, or any other breach of security; (x) where Customer resells Services as permitted under this Agreement, Customer must enter into an agreement with Customer’s customers and end users which shall include the relevant terms of this Agreement and release XPR from any and all liability for damages or losses Customer’s customers or end users may incur as a result of using the Services; (xi) unless expressly authorized by XPR, use the most current version of the Services or any portion thereof; and (xii) where Customer provides a Customer Offering, Customer must enter into an agreement with Customer’s customers or end users which shall include the relevant terms of this Agreement and release XPR from any and all liability for damages or losses Service Users may incur as a result of using the Services or Customer Offering. Customer may not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, Customer may not use, or permit any other person to use, the Services in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or Class III medical devices. In the event of a dispute between XPR and Customer regarding the interpretation of applicable law or this Agreement, XPR’s reasonable determination shall control.

 

6.2 Representations and Warranties. Customer represents and warrants it has the full power and authority to enter into this Agreement and to grant XPR the rights granted herein. Customer represents and warrants that the Content does not and shall not violate or infringe any intellectual property right of any third party.

 

6.3 Confidentiality. Customer agrees not to use XPR’s Confidential Information except in connection with Customer’s authorized use of the Services. Customer agrees not to disclose XPR’s Confidential Information to any third person or party for a period of five (5) years following the termination or expiration of this Agreement except where the Confidential Information: (i) was in Customer's possession prior to receipt from XPR; (ii) is publicly known or readily ascertainable by proper means; (iii) is rightfully received by Customer from a third party without a duty of confidentiality; (iv) is disclosed by XPR to a third party without a duty of confidentiality on the third party; (v) is independently developed or learned by Customer; or (vi) is disclosed by Customer with XPR’s prior written approval. Customer will provide reasonable prior notice to XPR and will request a protective order if Customer is required to reveal the Confidential Information under a subpoena, court order or other operation of law.

 

FEES AND TAXES

 

7.1 Fees. Customer agrees to pay the fees charged by XPR and comply with the payment procedures and terms found here.

 

7.2 Taxes. Unless otherwise stated, XPR’s fees do not include any direct or indirect local, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its use of Services, excluding taxes based solely on XPR’s net income or property. If XPR has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 7.2, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides XPR with a valid tax exemption certificate authorized by the appropriate taxing authority or complies with the additional terms as outlined here.

 

INTELLECTUAL PROPERTY

 

8.1 Content. Customer hereby grants and agrees to grant to XPR, under all intellectual property rights embodied in the Content, a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid-up license to use, import, distribute, modify and distribute modifications of, perform, create and distribute derivative works of, copy, and display Content, solely in connection with XPR’s provision of Services (including support of Services) to Customer. The license granted in this Section 8.1 includes the right of XPR to sublicense its subsidiaries and affiliates and any third parties providing all or part of the Services on behalf of XPR to achieve the foregoing. For purposes of this Section 8.1 only, Content does not include Feedback.

 

8.2 Trademarks. Customer hereby grants and agrees to grant to XPR a non-exclusive, irrevocable, worldwide, royalty-free, fully paid-up license to use Customer’s trademarks, marks, logos or trade names as provided in the Content, solely in connection with XPR’s provision of Services (including support of Services) to Customer. The license granted in this Section 8.2 includes the right of XPR to sublicense its subsidiaries and affiliates and any third parties providing all or part of the Services on behalf of XPR to achieve the foregoing.

 

8.3 Feedback. XPR shall own all right, title and interest in and to the Feedback. Customer hereby irrevocably assigns to XPR all right, title, and interest in and to the Feedback and agrees to provide XPR with any assistance XPR may request to document, perfect, and maintain XPR’s rights in the Feedback.

 

TERM, SUSPENSION AND TERMINATION.

 

9.1 Term. The term of this Agreement shall commence on the date that XPR first accepts Customer’s Order and shall continue until terminated as provided in this Section 9.

 

9.2 Suspension. XPR may suspend provision of Services to Customer without liability if: (i) XPR reasonably believes that the Services are being used (or have been or will be used) by Customer in violation of this Agreement; (ii) Customer does not cooperate with XPR’s investigation of any suspected violation of this Agreement; (iii) XPR believes that Services provided to Customer have been accessed or manipulated by a third party without Customer’s consent or in violation of this Agreement; (iv) XPR reasonably believes that suspension of the Services is necessary to protect XPR’s network, XPR’s other customers, or others in general; (v) a payment for the Services is overdue by more than thirty (30) days; (vi) the continued use of the Services by the Customer may adversely impact the Services or the systems or content of XPR or any other XPR customer; (vii) XPR reasonably believes that the use of the Services by Customer may expose XPR, its affiliates, or any third party to liability; or (viii) suspension is required by law. XPR will give Customer reasonable advance notice of a suspension under this Section 9.2 and a chance to cure the grounds on which the suspension are based, unless XPR determines, in XPR’s reasonable commercial judgment, that either suspension on shorter or contemporaneous notice or immediate suspension without notice is necessary to protect XPR, its other customers, or any third party from operational, security, or other risk or the suspension is ordered by a court or other judicial body. If the suspension was based on Customer’s breach of Customer’s obligations under this Agreement, then XPR may continue to charge Customer the fees for the Services during the suspension, and may charge Customer a reasonable reinstatement fee upon reinstatement of the Services, which shall be at XPR’s sole discretion.

 

9.3 Termination for Convenience. Customer may terminate this Agreement for convenience at any time. If Customer terminates this Agreement for convenience, Customer shall pay XPR all amounts that would be due within forty-five (45) days after such termination. After a Beta Period, XPR may terminate this Agreement for convenience at any time upon thirty (30) days advance written notice.

 

9.4 Beta Period. During any Beta Period, XPR may terminate this Agreement immediately without notice at XPR’s sole discretion.

 

9.5 Termination for Breach. XPR may terminate this Agreement if: (i) XPR discovers that the information Customer provided to XPR about Customer’s proposed use of the Services was materially inaccurate or incomplete; (ii) if Customer is an individual and was not at least 18 years old or otherwise did not have the legal capacity to enter into this Agreement at the time Customer submitted the Order for Services, or if Customer is an entity or fiduciary, the individual submitting the Order for Services for Customer or the end user did not have the legal right or authority to enter into this Agreement on behalf of the person represented to be the customer; (iii) Customer payment of any invoiced amount is overdue, and Customer does not pay the undisputed overdue amount within thirty (30) days of XPR’s written notice; (iv) Customer uses the Services in violation of this Agreement and fails to remedy the violation within thirty (30) days of XPR’s written notice; (v) Customer uses the Services in violation of this Agreement and, in XPR’s reasonable commercial judgment, termination is necessary to protect XPR, its other customers, or any third party from operational, security, or other risk; (vi) Customer’s account has been suspended for thirty (30) days or more; or (vii) Customer fails to comply with any other provision of this Agreement and does not remedy the failure within thirty (30) days of XPR’s notice to Customer describing the failure. XPR will give Customer written notice of termination under this Section 9.5 unless XPR determines, in XPR’s reasonable commercial judgment, that immediate termination without notice is necessary to protect XPR, its other customers, or any third party from operational, security, or other risk. Customer may terminate this Agreement for breach upon written notice to XPR if XPR materially fails to meet any other obligation stated in this Agreement and does not remedy that failure within thirty (30) days of Customer’s written notice describing the failure.

 

9.6 Access to Data. At XPR’s sole discretion, Customer may not have access to Content stored in the Services during a suspension, and XPR shall not be liable to Customer for any damages or losses Customer may incur as a result of such suspension. Unless XPR determines otherwise, or Customer requests deletion of Content, Customer will have access to Content following termination or expiration of this Agreement for at least fourteen (14) days after the effective date of termination or expiration, and XPR shall not be liable to Customer for any damages or losses Customer may incur as a result of not having access to Content.

 

9.7 Effect of Termination. Upon expiration or termination of this Agreement, Customer must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to Customer by XPR and any other materials provided to Customer by XPR in connection with the Services, including pointing the DNS for Customer domain name(s) away from the Services. Customer must also return or, at XPR’s request, destroy any portion of the Services in Customer’s possession. XPR will have no obligation to provide any transition services or access to data except as expressly stated in Section 9.6 above.

 

9.8 Survival. All provisions that by their nature are intended to survive expiration or termination of this Agreement shall survive expiration or termination of this Agreement.

 

UNAUTHORIZED ACCESS TO CONTENT OR USE OF THE SERVICES OR CUSTOMER OFFERING. Expression is not responsible to Service Users or any third party for unauthorized access to Service User’s Content or the unauthorized use of the Services or Customer Offering by a third party.

 

DISCLAIMERS 

 

Expression does not promise that the Services will be uninterrupted, error-free, or completely secure. Customer acknowledges that there are risks inherent in Internet connectivity that could result in the loss of SERVICE USER’S privacy, confidential information, Content, and/or property. XPR has no obligation to provide security other than as stated in this Agreement. To the extent permitted by law, XPR disclaims any and all warranties, statutory or otherwise, not expressly stated in this Agreement, including the implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, and noninfringement. Customer is solely responsible for the suitability of the services chosen. The Services are provided “AS IS”. Any voluntary ACTIVITIES XPR may perform for Customer at Customer’s request and without any additional charge are provided “AS IS”.

 

INDEMNIFICATION. If XPR, XPR employees, agents, affiliates, subsidiaries, or suppliers (the “XPR Indemnitees”) are faced with a legal claim by a third party arising out of Service User’s actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by this Agreement, misappropriation or infringement of a third party’s intellectual property right, or violation of this Agreement (“Third Party Claim”), then Customer will pay the cost of defending the claim (including reasonable attorney fees) and any damages, award, fine, settlement, or other amount (“Losses”) that is imposed on the XPR Indemnitees as a result of the claim. Customer will hold XPR harmless from and against any and all Losses arising out of or in connection with any Third Party Claim. Customer’s obligations under this Section 12 include claims arising out of the acts or omissions of Customer employees, any other person to whom Customer has given access to the Services, Customer Offering and/or Content, and any person who gains access to the Services, Customer Offering and/or Content as a result of Customer’s failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by Customer. If Customer resells the Services as permitted under this Agreement or provides a Customer Offering, Customer’s obligations under this Section 12 stated above also include any claim brought by Customer’s customers and end users arising out or related to: (i) Customer’s sale or license of the Customer Offering, Services or Content; (ii) Customer’s customers or end user’s use of the Customer Offering, Services or Content; and/or (iii) loss of or damage to Customer’s customers’ or end users’ Content. If any portion of the Content is, or is in Customer’s opinion is likely to be, held to constitute an infringing item, Customer shall at its election and expense either: (i) procure the necessary rights to that portion of Content alleged to be infringing; (ii) replace the alleged infringing portion with a non-infringing equivalent; (iii) modify the alleged infringing portion to make it non-infringing; or (iv) immediately terminate the use of the allegedly infringing portion of the Content.

 

In connection with any Third Party Claims pursuant to this Section 12, XPR will (i) give Customer prompt written notice of such claim; and (ii) cooperate reasonably with Customer (at Customer’s expense) in providing information in connection with Customer’s payment of the defense of such claim and Losses arising out of such claim.

 

LIMITATION ON DAMAGES. IN NO EVENT WILL XPR’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNT CUSTOMER PAID TO XPR UNDER THIS AGREEMENT FOR THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. TO THE FULLEST EXTENT PERMITTED UNDER LAW, XPR WILL HAVE NO OBLIGATION OR LIABILITY (WHETHER ARISING IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE) FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LIABILITIES (INCLUDING LOST PROFITS, LOSS OF INCOME, REVENUE, GOODWILL, REPUTATION OR SAVINGS, LOSS OR UNAVAILABILITY OF OR DAMAGE TO DATA OR SOFTWARE RESTORATION), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES, ARISING WITH RESPECT TO: (i) USE OR INABILITY TO USE THE SERVICES OR CUSTOMER OFFERING; (ii) COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (iii) UNAUTHORIZED ACCESS TO, ALTERATION OF, OR DELETION, DAMAGE, DESTRUCTION OR LOSS OF SERVICE USERS’ CONTENT, DATA, OR TRANSMISSIONS BY THIRD PARTIES; AND/OR (iv) ANY OTHER MATTER RELATING TO THE SERVICE, THE CUSTOMER OFFERING, OR ARISING UNDER THIS AGREEMENT.

 

THIRD PARTIES. Unless otherwise agreed, XPR will provide support only to Customer and not to any other person Customer authorizes to use the Services. There are no third party beneficiaries to this Agreement, meaning that third parties do not have any rights against either XPR or Customer under this Agreement.

 

MISCELLANEOUS

 

15.1 Changes to this Agreement. XPR may modify this Agreement at XPR’s sole discretion. Any such modified Agreement shall be posted or linked to here or as provided in Section 15.3. Any such changes made during the term of this Agreement will become effective thirty (30) days after the date XPR posts, links to, or provides notice of such modified Agreement. Customer’s continued use of the Services after such thirty-day period shall constitute acceptance of such modified Agreement. Notwithstanding the foregoing in this Section 15.1, if XPR lowers any fees, such change in fees shall be effective immediately upon such change being posted here or as provided in Section 15.3.

 

15.2 Acquired Rights Directive. If Customer employees or third parties which have been contracted by Customer for rendering contractually agreed services that are in all material respects equivalent to the Services prior to the beginning of this Agreement assert the transfer of their employment relationship or claims thereto against XPR under EU Directive 2001/23/EC or similar national legislation, Customer shall use its best efforts to lawfully either prevent the transfer of the employment relationship or to hold off such claims. Customer shall hold harmless and indemnify XPR from all prosecution costs incurred in connection with the transfer prevention as well as from any compensation payments to the employee and fees for any external legal counsel, as well as any and all incurred costs and financial claims of the employee or third party that arise from or are due to a claim of further employment or re-employment. These expenses include costs or salary, health insurance, social security contributions, voluntary and legal pension contributions, company pension scheme, pension funds and any severance costs in line with XPR’s standard generally-applicable policy.

 

15.3 Notices. Customer routine communications regarding the Services should be sent to Customer’s XPR support using Customer XPR’s support page. If Customer wants to give XPR a notice regarding termination of this Agreement for breach, indemnification, or other non-routine legal matter, Customer should send it by electronic mail to support@XPR.io.

 

Expression's routine communications regarding the Services and legal notices will be sent to the individual(s) Customer designates as Customer contact(s) on Customer’s account either by electronic mail, postal mail, or overnight courier, except that XPR may give notice of an amendment to or new version of this Agreement by posting the notice on Customer’s XPR customer control panel. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time delivered. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.

 

15.3.a. Maintenance Windows. Customer acknowledges and agrees to a weekly scheduled maintenance windows, Saturday between 3am – 6am EST. XPR shall notify Customer of any regularly scheduled maintenance windows at least seven (7) days in advance of scheduled maintenance and in the event of unscheduled maintenance at a time that is mutually agreed to by the parties. Customer understands and agrees that the Company has the right to conduct an emergency maintenance window at any time, during which any or all Company Services may be unavailable.

 

15.4 Export laws. Expression reserves the right to locate infrastructure for providing the Services in any country or location permitted under applicable laws and regulations. Data Customer, or any third party authorized by Customer, sends to or through the Services may be subject to Canadian and other national export and import laws and regulations. If Customer, or any third party authorized by Customer, chooses to use these Services, Customer and any third party authorized by Customer do so on their own initiative and are responsible for compliance with all applicable laws and regulations, including selection of appropriate location of services during signup, and for obtaining required export and import authorizations, where applicable. In addition, Customer, and any third party authorized by Customer, may not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of Canada Export Administration Regulations. Customer is responsible, and will reimburse XPR, for all costs, expenses or damages incurred by XPR in connection with Customer, and any third party authorized by Customer, transfer of Controlled Data. If Customer has questions concerning these requirements or requires special solutions to comply with applicable export/import laws and regulations, Customer should contact support@XPR.io or your designated XPR account manager.

 

15.5 Assignment/Subcontractors. Customer may not assign Customer rights and/or delegate Customer obligations under this Agreement without XPR’s prior written consent. This Agreement will be binding on and inure to the benefit of Customer’s and XPR’s respective permitted successors and permitted assigns. However, XPR may use third party service providers or any affiliate or subsidiary to perform all or any part of the Services.

 

15.6 Force Majeure. Neither XPR nor Customer will be in violation of this Agreement if the failure to perform the obligation is due to an event beyond either party’s control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.

 

15.6 Governing Law, Lawsuits. This Agreement is governed by the laws of the Province of British Columbia, and the laws of Canada, as applicable. This Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of this Agreement shall be in the courts in Vancouver, British Columbia Canada, and the parties each agree not to bring an action in any other venue. Customer waives all objections to this venue and agrees not to dispute personal jurisdiction or venue in these courts. Each party agrees that it will not bring a claim under this Agreement more than two years after the time that the claim accrued.

 

15.7 Some Agreement Mechanics. This Customer Agreement may have been incorporated into Customer Order by reference to a page on the XPR website. XPR may reject any Order in XPR’s sole discretion. XPR’s provisioning of the Services shall be deemed XPR’s acceptance of the Order.

 

If there is a conflict between the terms of the Customer Agreement, the AUP, or the Order, the documents will govern in the following order: Customer Agreement, the Acceptable Use Policy, and the Order. If any part of this Agreement is found unenforceable by a court or other tribunal, the rest of this Agreement will nonetheless continue in effect, and the parties agree that any court or other tribunal may reform the unenforceable part if it is possible to do so consistent with the material economic incentives of the parties resulting in this Agreement. The captions in this Customer Agreement are for convenience only and are not part of this Customer Agreement. The use of the word “including” in this Customer Agreement shall beread to mean “including without limitation.”

 

15.8 Relationship of the Parties. The parties’ relationship is that of independent contractors and not business partners. Neither of the parties is the agent for the other, and neither party has the right to bind the other on any agreement with a third party.

 

15.9 No Waiver. XPR’s failure to exercise or delay in exercising any of its rights under this Agreement will not constitute a waiver, forfeiture, or modification of such rights. XPR’s waiver of any right under this Agreement will not constitute a waiver of any other right under this Agreement or of the same right on another occasion. XPR’s waiver of any right under this Agreement must be in writing.

 

15.10 Severability. If any provision in this Agreement is held invalid or unenforceable by a body of competent jurisdiction, such provision will be construed, limited or, if necessary, severed to the extent necessary to eliminate such invalidity or unenforceability. The remaining provisions of this Agreement will remain in full force and effect.