Xvoucher Terms and Conditions

Xvoucher Terms and Conditions

Trial Subscription 

These terms and conditions (“Terms”) shall apply to the use of the Xvoucher online learning exchange system, which facilitates the purchasing, obtaining and tracking of learning resource assets for an enterprise (the “Xvoucher Services”) provided by Genuine Genius Technologies, LLC d/b/a Xvoucher, a Minnesota limited liability company (“Xvoucher”) with offices at 431 Clifton Pl, Suite 100, Minneapolis, MN 55403, and Customer named in the applicable Order (defined below). When Customer submits an order to Xvoucher (including purchase orders, credit card orders, online subscriptions, prepayments via check or wire, ACH or other transfer) (each, an “Order”) for Xvoucher Services, the provision of the Xvoucher Services will be governed by these Terms.

Controlling Provisions: These Terms shall take precedence over any terms and conditions which appear in any Order or in any documents incorporated by reference therein. Xvoucher’s acceptance of an Order is conditioned upon Customer’s acceptance of these Terms. No term or condition of an Order additional to or different from these Terms shall become part of the contract unless explicitly agreed to in writing by Xvoucher. Other deviations from and/or additions to these Terms shall only be valid if they have been expressly agreed to in writing by both parties. Customer’s acceptance of these Terms may also be demonstrated through any other conduct that evidences the existence of an agreement with respect to the Xvoucher Services. Xvoucher’s failure to object to any provision contained in any communication from Customer shall not be construed as waiver of these Terms nor as an acceptance of any such provision.

Changes to these Terms:  Any changes to these Terms must be mutually agreed by Customer and Xvoucher (together, the “Parties”). The Parties agree that such request for changes or modifications will be reviewed in good faith and to the benefit of both Parties in a commercially reasonable manner.

Payment Terms. Customer agrees to pay all amounts due to Xvoucher in a timely manner. Customer shall be responsible for any communication lines and Internet service provider fees associated with accessing the Xvoucher Service. Customer shall be invoiced on a monthly basis in advance for the Monthly Subscription Fees for the Xvoucher Services.  Payment shall be due thirty (30) days after the date of the invoice. Any payment not received within thirty (30) days of the invoice date will accrue interest at a rate of one and one-half percent (1 1/2%) per month, or the highest rate allowed by applicable law, whichever is lower. If Customer is delinquent in its payments, Xvoucher may, upon prior written notice to Customer, and at Xvoucher’s sole discretion (i) terminate this Agreement, (ii) suspend Xvoucher Services provided to Customer in whole or in part until payment in full has been made to Xvoucher, and/or (iii) require other assurances to secure Customer’s payment obligations hereunder. 

Remedies of Xvoucher:  Customer agrees that any of the following shall constitute a default which shall enable Xvoucher, at its option, to cancel or suspend all or any portion of the Xvoucher Services or to exercise any right or remedy which it may have by law: (a) the failure of Customer to perform any material term or condition contained within these Terms; (b) any failure of Customer to give notice required herein within a reasonable timeframe; (c) the insolvency of Customer or its failure to pay debts as they mature, an assignment by Customer for benefit of its creditors, the appointment of a receiver for Customer, or the filing of any petition to adjudicate Customer as bankrupt; or (d) the dissolution, or the termination of the existence of Customer. All rights and remedies of Xvoucher herein are in addition to, and shall not exclude, any rights or remedies that either may have by law.

Xvoucher’s Rejection of Order. Xvoucher reserves the right to reject any Order placed by Customer with or without cause with notice to Customer. Should Xvoucher reject an Order, Customer will be notified electronically of such action and Xvoucher will neither invoice nor charge Customer for such rejected Order. Alternatively, Xvoucher may elect to suspend an Order and contact Customer for clarification; should Customer and Xvoucher resolve any issues causing the suspension and agree to either complete the Order as is or in a revised form as mutually agreed, such Order will then be accepted and fulfilled by Xvoucher. 

Term; Auto-renewal. The term for provision of the Xvoucher Services (the “Term”) will commence on the date set forth in the Order and, subject to earlier termination as set forth in these Terms, will continue for the period specified; thereafter, unless expressly specified in the Order ; the Term for the Xvoucher Services shall automatically renew unless either party notifies the other in writing at least ninety (90) days prior to the end of the then current Term.  Each renewal will be at Xvoucher’s then current rates, as set forth in a Fee Schedule provided by Xvoucher to Customer at least sixty (60) days prior to the end of the then current Term.

Software License. The term “Xvoucher Software” means the Xvoucher Software licensed, owned and used by Xvoucher to provide the Xvoucher Services.

Grant of License.  Subject to the terms and conditions herein, during the Term, Xvoucher grants to Customer a limited, personal, non-exclusive, non-transferable, revocable license (“License”) to access and use the Xvoucher Software to the extent required to use the Xvoucher Services. The License granted may not be sublicensed or shared with any third party without the prior written consent of Xvoucher.  Xvoucher reserves all rights not expressly granted in this Agreement.

License Restrictions.  Customer shall (i) not copy, distribute, reproduce, rent, lend, sell, lease, sublicense, or otherwise transfer the Xvoucher Services or any portion of the Xvoucher Software; (ii) not translate, adapt, modify, alter, combine with other software, or prepare derivative works based in whole or in part on the Xvoucher Software or make any other changes or alterations to the Xvoucher Software; (iii) not use the Xvoucher Software in a computer-based services business; (iv) transmit the Xvoucher Software over a network, by telephone, or electronically using any means; (v) not reverse engineer, decompile, disassemble or otherwise reduce the Xvoucher Software to a human-perceivable form or use any data mining, robots, or similar data gathering and extraction tools; (vi) only use the Xvoucher Services and Xvoucher Software in connection with its normal course of business and internal business operations; (vii) not transmit any material that may infringe the intellectual property rights of any third party; and (viii) not upload, disseminate, store or transmit viruses, Trojan horses or any other malicious code, program Customer Data, or engage in any other activity deemed by Xvoucher to be in conflict with the spirit or intent of this Agreement.

Use of Customer Data. Any and all information provided by Customer to Xvoucher for use in conjunction with the Xvoucher Services, including processing, storage and transmission as part of the Xvoucher Services (“Customer Data”) are Customer’s sole responsibility. Customer agrees that (i) it is solely responsible for collecting, inputting and updating all Customer Data and for the accuracy thereof, and (ii) Customer Data shall not include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark, privacy, or other intellectual property right of any third party, or contain anything that is obscene, defamatory, harassing, offensive or malicious or which is used or stored in violation of applicable law. 

Passwords. Customer is responsible for all use of its account and maintaining the confidentiality of all passwords and information. Sharing of passwords and account numbers and information is at Customer’s own risk.  

Warranty; Disclaimer. Xvoucher warrants that, during the Term, it will use commercially reasonable efforts to provide the Xvoucher Services to Customer substantially in accordance with the applicable user manual for the Xvoucher Services made available to the Customer by Xvoucher (the “Documentation”) .

THE WARRANTY SET FORTH IN THIS SECTION IS THE SOLE AND EXCLUSIVE WARRANTY FOR THE XVOUCHER SERVICES AND THE XVOUCHER SOFTWARE.  EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, XVOUCHER AND ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND AFFILIATES PROVIDE THIS XVOUCHER SOFTWARE, DOCUMENTATION, AND INFORMATION “AS IS WITH ALL FAULTS.” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WHETHER WRITTEN OR ORAL. XVOUCHER EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND ALL IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. XVOUCHER DOES NOT PROVIDE ANY WARRANTIES WHATSOEVER THAT THE XVOUCHER SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER, THAT THE FUNCTIONS CONTAINED IN THE XVOUCHER SOFTWARE WILL FUNCTION WITH OTHER SOFTWARE OR HARDWARE, OR WITHIN A SYSTEM, OR THAT THE XVOUCHER SOFTWARE, DOCUMENTATION, INFORMATION, OR OTHER MATERIALS SUPPLIED PURSUANT TO THIS AGREEMENT FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS.

Confidential Information.  Each party (the “Receiving Party”) agrees to hold any Confidential Information (as defined below) it obtains from the other (the ‘Disclosing Party”) in confidence and, unless required by law, not to make the Confidential Information available to any third party or to use the Confidential Information for any purpose other than the transactions contemplated by an Order for which the Receiving Party is given access to the Confidential Information. Receiving Party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of these Terms. For purposes of these Terms, "Confidential Information" refers to all non-public verbal or written information, including electronically transmitted information, which refers to Disclosing Party’s business, technology, services, and products or that of one of its subsidiaries or affiliates and is disclosed to the Receiving Party. This includes, but is not limited to, product data, business plans, drawings, reports, inventions, notifications, designs, marketing strategies, price calculations, financial programs, product ideas, production processes, prototypes, suppliers list, business secrets, and other know-how and information. This Section shall not apply to information which is (i) in the public domain, (ii) already known to the Receiving Party, (iii) developed independently or (iv) received from a third party without similar restriction and without breach of these Terms or a similar agreement. Customer agrees that the terms of this Agreement shall be Confidential Information of Xvoucher and may not be disclosed by Customer.

Proprietary Rights. Xvoucher shall retain sole and exclusive rights, title, interest and ownership (including copyright and other intellectual property rights, or informational rights) in and to the Xvoucher Services, Xvoucher Confidential Information, and Xvoucher Software and all legally protectable elements or derivative works thereof.  Xvoucher Software contains proprietary and copyright protected material and, in its human-perceivable form, contains trade secrets and copyright protected materials and other intellectual property rights exclusively owned by Xvoucher. Customer acknowledges and agrees that it will not take any action inconsistent with such ownership.  This Agreement does not grant Customer any rights to any patents, copyrights, trade secrets, trademarks (whether registered or unregistered), or any other rights, functions or licenses with respect to the Xvoucher Software, except as expressly set forth herein. Xvoucher may place copyright and/or proprietary notices, including hypertext links, within the Xvoucher Services.  Customer shall not alter or remove such notices without Xvoucher’s written permission.  

Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL XVOUCHER OR ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, SUCCESSORS, ASSIGNS, OR AFFILIATES BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS, LOST TIME, LOST SAVINGS, LOST DATA, LOST CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, LOSS OF USE OF SERVICE OR EQUIPMENT ARISING FROM OR RELATING TO THIS AGREEMENT OR THE XVOUCHER SERVICES, SOFTWARE, INCLUDING, WITHOUT LIMITATION, YOUR USE, MISUSE OR INABILITY TO USE THE SOFTWARE OR ANY THIRD PARTY SOFTWARE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SOFTWARE INCLUDING ANY CHANGES TO OR INACCESSIBILITY OF THE SOFTWARE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL XVOUCHER’S LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR THE SALE OF PRODUCTS TO THE CUSTOMER EXCEED THE PURCHASE PRICE PAID BY CUSTOMER FOR THE SPECIFIC PRODUCTS WHICH GAVE RISE TO THE CLAIM. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS IN THIS SECTION SHALL NOT APPLY TO DAMAGES CAUSED BY A PARTY’S INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, BREACH OF CONFIDENTIALITY, INTELLECTUAL PROPERTY OR DATA PRIVACY OBLIGATIONS OR TO OBLIGATIONS TO INDEMNIFY FOR THIRD PARTY CLAIMS. XVOUCHER SHALL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS OF THE XVOUCHER SOFTWARE OR FOR THE UNAUTHORIZED ACCESS TO DOCUMENTS OR WEBPAGES OF A NETWORK OR WEBSITE, INCLUDING ANY TRESPASS THEREUPON.  XVOUCHER SHALL ALSO NOT BE LIABLE FOR THE INTERRUPTION OR THE SLOWDOWN OF THE SERVICES OF A NETWORK OR WEBSITE SERVER THAT MAY BE POTENTIALLY CAUSED BY CUSTOMER OR ANY THIRD PARTY USER OF THE SOFTWARE.

THE PARTIES ACKNOWLEDGE THAT XVOUCHER HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.  THE PARTIES AGREE THAT THE LIMITATION AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

Indemnification. Customer agrees to indemnify, defend, and hold Xvoucher harmless from and against any and all costs, liabilities, losses and expenses, (including, but not limited to, reasonable attorneys’ fees) (collectively “Losses”) resulting from any claim, suit, action or proceeding (each an “Action”) brought by any third party against Xvoucher alleging (i) the infringement or misappropriation of any intellectual property right, including but not limited to copyright, trade secret and trademark rights, relating to Customer’s Information or Data, (ii) Customer’s use of the Xvoucher Services or (iii) Customer’s breach of its obligations under these Terms.  Customer’s indemnification obligation hereunder shall be subject to (a) receiving prompt written notice of the existence of any Action; (b) being able to, at its option, control the defense of such Action; (c) permitting Xvoucher to participate in the defense of any Action; and (d) receiving full cooperation of Xvoucher in the defense thereof.

No Assignment.  Customer shall not assign any of its rights, duties, or obligations under this Agreement to any person or entity, in whole or in part, and any attempt to do so shall be deemed void and/or a material breach of this Agreement.

Waivers.  No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof.  No waiver shall be binding unless executed in writing by the party making the waiver.

Severability.  If any provision of this Agreement is determined to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable.

Notices:  Any notice or communication required or permitted to be given by either party under these Terms shall be in writing and sent by registered or certified mail, return receipt requested, or by confirmed facsimile transmission or by an overnight delivery service to Xvoucher at the address provided above or to the Customer at the address provided in the Order.

Governing Law:  These Terms and Xvoucher’s provision of the Xvoucher Services to Customer shall be governed in all respects by the laws of the State of Minnesota, United States, without giving effect to principles of conflicts of law, whose courts shall have sole jurisdiction to all matters arising from these Terms. The parties agree that the UN Convention on the International Sale of Goods shall not apply to these Terms or any of the transactions contemplated by either.  

Time Limits for Bringing Claims:  All claims or actions, regardless of form, arising out of or related to the Xvoucher Services must be filed within the applicable statutory period, but in no event more than six (6) months after the claim arises.  

Attorney’s Fees.  If any action in law or in equity is necessary to enforce the terms of this Agreement, the most prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such most prevailing party may be entitled.

Survival.  Sections 3, 7 through 13, 15 through 21, 24, and 25 will survive the expiration or termination of these Terms or theOrder.

Publicity. Xvoucher shall have the right to identify Customer is a customer of Xvoucher, including on its website or in other marketing materials.

Entire Agreement.  This Agreement together with any Order and any other Xvoucher documents referenced herein constitutes the complete and exclusive statement of the agreement between the parties with respect to the use of the Xvoucher Servcies and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the terms and conditions of sale.

Export Laws.  Each Party agrees to comply with all export and re-export control laws and regulations, as may be applicable to the Xvoucher Services hereunder, including without limitation the Export Administration Regulations and the International Traffic in Arms Regulations. Therefore, Customer shall not (a) permit any third party to access or use the Xvoucher Services or Data in violation of any U.S. law or regulation; or (b) export the Xvoucher Services, Xvoucher Software or Data or otherwise remove any of them from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Xvoucher Services or Xvoucher Software, or export them to, a country subject to a United States embargo. 

Taxes:  The amount of any sales, excise, or other taxes, if any, applicable to the Xvoucher Services shall be added to the purchase price and shall be paid by Customer, unless Customer provides Xvoucher with an exemption certificate or direct pay authority acceptable to the taxing authorities. Any taxes which Xvoucher may be required to pay or collect with respect to the sale, purchase, delivery, storage, processing, use, or consumption of any Xvoucher Services, including taxes upon or measured by the receipts from the sale thereof, shall be charged to the Customer’s account (other than taxes on Xvoucher’s net income) and reflected in the applicable invoice with reasonable detail and payable in accordance with the Order. 

Force Majeure.  XVOUCHER SHALL NOT BE LIABLE FOR AND WILL NOT BE RESPONSIBLE TO CUSTOMER FOR ANY DELAY OR FAILURE TO PERFORM UNDER THIS AGREEMENT IF SUCH DELAY OR FAILURE RESULTS FROM FIRE, EXPLOSION, LABOR DISPUTE, EARTHQUAKE, CASUALTY OR ACCIDENT, LACK OF FAILURE OF TRANSPORTATION FACILITIES AND/OR SERVICES, LACK OF FAILURE OF TELECOMMUNICATIONS FACILITIES AND/OR SERVICES INCLUDING INTERNET SERVICES, EPIDEMIC, FLOOD, DROUGHT, OR BY REASON OR WAR, REVOLUTION, CIVIL COMMOTION, BLOCKADE OR EMBARGO, ACT OF GOD, ANY INABILITY TO OBTAIN ANY REQUISITE LICENSE, PERMIT OR AUTHORIZATION, OR BY REASON OF ANY LAW, PROCLAMATION, REGULATION, ORDINANCE, DEMAND OR REQUIREMENT OF ANY GOVERNMENT OR BY REASON OF ANY OTHER CAUSE WHATSOEVER, WHETHER SIMILAR OR DISSIMILAR TO THOSE ENUMERATED, BEYOND THE REASONABLE CONTROL OF XVOUCHER.

External Service Providers.  The Xvoucher Services may enable access to Xvoucher’s and/or third-party services and websites (collectively and individually, “External Service Providers”).  Customer agrees to use the External Service Providers at its sole risk. Xvoucher is not responsible for examining or evaluating the content or accuracy of any third-party External Service Providers, and shall not be liable for any such third-party External Service Providers.  Data displayed by any product or External Service Provider, including but not limited to business, financial, medical, and location information, is for general information purposes only and is not guaranteed by Xvoucher or its agents. Customer will not use the External Service Providers in any manner that is inconsistent with the terms of this Agreement or that infringes the intellectual property rights of Xvoucher or any third-party.  Customer agrees not to use the External Service Providers to harass, abuse, stalk, threaten or defame any person or entity, interfere and/or interrupt the business process of any person or entity, and that Xvoucher is not responsible for any such use. External Service Providers may not be available in all languages or in Customer’s country of business, and may not be appropriate or available for use in any particular location. To the extent Customer chooses to use such External Service Providers, Customer is solely responsible for compliance with any applicable laws.  Xvoucher reserves the right to change, suspend, remove, disable or impose access restrictions or limits on any External Service Provider at any time without notice or liability to Customer.

Data Transfer. Xvoucher is strictly a data processor, not a data controller. Xvoucher Services are self-service (“do-it-yourself”) products in which Customer solely determines: (a) what data to collect; (b) from whom; (c) from where; (d) for what purpose; and (e) when to delete it. Xvoucher is responsible for the backup of Data for disaster recovery purposes only, and Customer is responsible for routine backup and deletion of Data. Customer will comply with all applicable data privacy laws in using the Xvoucher Services.

Updated 1 February 2020