THESE TERMS OF SERVICE (“Terms of Service”) constitute the binding agreement between every person or entity that utilizes the Podium X^TM Application, as defined below. In consideration for utilizing the Podium X Application, each User, the Account Holder, and Xtra Point Group^®, LLC (“Xtra Point”) agree to the following:

Defined Terms. 

The following terms have the meaning as defined below:

• “Account” means the account in the Podium X Application for the Account Holder’s organization.
• “Account Holder” means the person or entity that has a Subscription with Xtra Point for use of the Podium X Application.
• “Account Holder Administrator” means those persons who have been designated by the Account Holder to have the ability to enter into legally binding decisions and to enter into any agreements or modifications of existing agreements between Xtra Point and the Account Holder.
• “Account Holder Data” means any data or information that is input by Account Holder and a User into the Podium X Application, but excluding Xtra Point Data.
• “Annual Subscription” means a Subscription for an unlimited number of the Account Holder’s Users to access and use the Podium X Application for a period of time which commences on the Subscription Start Date, and ends 365 days thereafter (except for leap years, in which case the Annual Subscription would terminate 366 days after the Subscription Start Date (or anniversary thereof for a renewal)).
• “Documentation” means documents, webpages, videos, and other information provided by Xtra Point with respect to the use of the Podium X Application.
• “Initial Subscription Commencement Date” means the date that starts the first Subscription Period for any Account Holder.
• “Intellectual Property” means any: (i) copyrights and copyrightable works, whether registered or unregistered; (ii) trademarks, service marks, trade dress, logos, registered designs, trade and business names (including Internet domain names, corporate names, and e-mail address names), whether registered or unregistered; (iii) patents, patent applications, patent disclosures, mask works and inventions (whether patentable or not); (iv) trade secrets, know-how, data privacy rights, database rights, know-how, and rights in designs; and, (v) all other forms of intellectual property or proprietary rights, and derivative works thereof, in each case in every jurisdiction worldwide.
• “Podium X Application” means the web-based application, and all components thereof, including such portions of the web-based application that are downloaded and run locally on a User’s computer, which is made available to a User by Xtra Point, including any software and related product Documentation or data related to such application as well as any updates, revisions, replacements or modifications thereof that Xtra Point may make available to a User and/or Account Holder from time to time.
• “Privacy Policy” means Xtra Point’s privacy policy, which is posted at PodiumX.com, and which is incorporated by reference into these Terms of Service.
• “Renewal Date” means the day immediately following the last day of a Subscription Period.
• “Subscription” means the business terms which allow authorized Users of the Account Holder to access the Podium X Application.
• “Subscription Agreement” means the written agreement between an Account Holder and Xtra Point that provides the business terms upon which an Account Holder’s Users may access and utilize the Podium X Application.
• “Subscription Fees” mean the fees that are due from an Account Holder to Xtra Point for a Subscription to the Podium X Application.
• “Subscription Period” means the time period beginning on the first day and ending on the last day of a Subscription Term.
• “Subscription Term” means the time period starting on the Initial Subscription Commencement Date and ending on the Subscription Termination Date.
• “Subscription Termination Date” is the final date of a Subscription for the Account Holder to have access to the Podium X Application.
• “System Outage” means that the Podium X Application is unavailable for a reason other than Force Majeure.
• “Third Party Partner” means any third-party application provider or any other person or entity that Account Holder has permitted to access and modify the Account Holder Data in their Account.
• “User” means any person or entity utilizing or accessing the Podium X Application, including without limitation, any User that is authorized by the Account Holder to access the Podium X Application.
• “Xtra Point Data” means the data and information regarding how a User utilizes the Podium X Application, including without limitation, any interactions that any User may have with the Podium X Application, but excluding information that directly reports or displays Account Holder Data.

Use and Access. 

• Grant of Rights. During the Subscription Term, and for so long as the Subscription Fees are paid and there is no breach of the Subscription Agreement, the Account Holder and its Users are granted a nonexclusive, nontransferable, limited right to access and use the Podium X Application for their Account.  The Account Holder is responsible for obtaining access to the Internet and the equipment necessary to use the Podium X Application.  All rights not expressly granted to the Account Holder herein are reserved to Xtra Point. 
• User Access. Users can access and use the Podium X Application only by means of login credentials, such as a username and password, and only in accordance with the terms and other restrictions in these Terms of Service.  Each User’s login credentials shall only be used by that User and shall not be shared with, or used by any other person, including other Users.  The Account Holder shall be responsible for issuing User login credentials to such persons as the Account Holder determines in its sole discretion, in accordance with these Terms of Service.  Xtra Point is entitled to send emails to the User’s email address that was provided to Xtra Point, including emails and correspondence from Xtra Point that may be confidential in nature, such as password reset instructions.  If a User’s email address is compromised, then the User as well as the Account Holder agree to notify Xtra Point as soon as reasonably practicable. Xtra Point reserves the right, in its sole discretion, to modify, add, or remove portions and/or functionality of the Podium X Application on a temporary or permanent basis, without liability to Account Holder or User. 
• Service Levels.  Xtra Point shall use commercially reasonable efforts to make the Podium X Application available on a twenty-four hours per day, seven days per week basis during the Subscription Term, except for: (a) scheduled system back-up or other on-going maintenance as required and scheduled in advance by Xtra Point; (b) any interruption, unavailability or outage of the Account Holder’s infrastructure or computing environment; or (c) for any unforeseen cause beyond Xtra Point’s reasonable control, including Internet service provider or communications network failures, denial of service attacks or similar attacks, or any Force Majeure event (defined below).  Xtra Point will monitor performance indicators on the systems and network infrastructure in order to gauge the overall performance of Xtra Point and will use commercially reasonable efforts to maintain uptime performance on a monthly basis of ninety-nine and one-half percent (99.5%).  If Xtra Point suffers a System Outage which makes it unavailable for less than 99.5% of a particular month, then the Account Holder will be entitled to a credit (applied against future Subscription Fees) equal to the percentage of time for a particular month that there is a System Outage for the Podium X Application up to a maximum amount of a credit of 100% for a particular month (which would occur if there was a System Outage of 10% or more of the time of a particular month). If the System Outage is caused by the Account Holder or its Users, then such Account Holder and/or its Users will not be entitled to any SLA Credit as a result of such System Outage.
• Third Party Partners.  Each Account Holder and each User is responsible for any Third Party Partners that they allow to have access to the Podium X Application.  Each Account Holder and each User acknowledges that Xtra Point will not be responsible for the use, modification, or potential disclosure by a Third Party Partner of any Account Holder Data that may be accessed, modified or otherwise used by such Third Party Partner.

Account Holder’s Rights, Responsibilities and Restrictions. 

• Authorized Access.  Each Account Holder acknowledges that: (a) Xtra Point shall rely on the validity of any User’s login credentials, instruction, or information that meets Xtra Point’s automated criteria or which is believed by Xtra Point to be genuine; (b) Xtra Point may assume a person entering a User’s login credentials is, in fact, that person; and (c) Xtra Point may assume the latest email addresses and registration information for Users on file with the Podium X Application are accurate and current.  The Account Holder shall take reasonable steps to prevent unauthorized access to the Podium X Application, including without limitation, by protecting its passwords and other login information.  In addition, the Account Holder agrees to assume full responsibility for ensuring that its Users comply with these Terms of Service, and with all applicable laws, rules, and regulations. The Account Holder shall notify Xtra Point immediately of any known or suspected unauthorized use of the Podium X Application or breach of its security and shall use best efforts to stop said breach.
• Limited License. By uploading or otherwise providing any Account Holder Data on or through the Podium X Application, Account Holder and Users grant to Xtra Point a perpetual, worldwide, non-exclusive, royalty-free license to use, reproduce, process, modify, publish, communicate, and display all or any portion of such Account Holder Data as needed to operate the Podium X Application, including the right to host, index, cache, or otherwise format Account Holder Data.
• Acceptable Use.  The Account Holder and all Users shall not: (a) use the Podium X Application for service bureau or time-sharing purposes or in any other way commercially exploit the Podium X Application, or allow third parties to commercially exploit the Podium X Application; (b) provide passwords or other login information to any third party, or attempt to gain unauthorized access to the Podium X Application; (c) modify, translate, adapt, alter, or make derivative works of the Podium X Application; (d) modify, reverse engineer, adapt or otherwise tamper with the Podium X Application or modify another website so as to falsely imply that it is associated with either the Podium X Application or Xtra Point; (e) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (f) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (g) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (h) interfere with or disrupt the integrity or performance of the Podium X Application or the data contained therein; (i) share non-public Podium X Application features or content with any third party; (j) access the Podium X Application in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Podium X Application, or to copy any ideas, features, functions or graphics of the Podium X Application; (k) engage in web scraping or data scraping on or related to the Podium X Application, including without limitation collection of information through any software that simulates human activity or any bot or web crawler; or (l) provide any untrue, inaccurate, or deceptive information. In the event that Xtra Point suspects any breach of the requirements of this section, Xtra Point may suspend the Account Holder’s access to the Podium X Application without advanced notice, in addition to such other remedies as Xtra Point may have.  The Podium X Application is not required to take any action against the Account Holder or any User or other third party for violating this section or these Terms of Service, but the Podium X Application is free to take any such action it sees fit.  Each Account Holder, as well as each User, agrees to indemnify and hold Xtra Point harmless from any violation of the aforementioned provisions of these Terms of Service.
• Compliance with Laws.  In its use of the Podium X Application, each Account Holder and any Users shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Account Holder Data.

Account Holder Data. 

• Ownership.  The Account Holder shall exclusively own all right, title, and interest in and to Account Holder Data in the Podium X Application. Each User that stores any Account Holder Data in the Podium X Application expressly acknowledges that Xtra Point is entitled to rely upon this provision should there be a dispute between any User and the Account Holder that provided access to the Podium X Application for such User with respect to the ownership of any Account Holder Data; provided, however, that each Account Holder and any User that is given access to the Podium X Application are free to enter into an agreement between such Account Holder and such User as relates to the Intellectual Property pertaining to any Account Holder Data between themselves, with the caveat that Xtra Point may assume that any and all Account Holder Data is owned by the Account Holder and not any particular User.
• Use of Account Holder Data. Unless it receives the Account Holder’s prior consent, Xtra Point shall not access, process, or otherwise use Account Holder Data other than as necessary to ensure that the Podium X Application is working properly.  Notwithstanding the foregoing, Xtra Point may disclose Account Holder Data as required by applicable law or by proper legal or governmental authority. Xtra Point shall give an Account Holder prompt notice of any such legal or governmental demand and reasonably cooperate with the Account Holder in any effort to seek a protective order or otherwise to contest such required disclosure, at the Account Holder’s expense, prior to the disclosure of any Account Holder Data (except to the extent that applicable law would otherwise prohibit prior disclosure to such Account Holder).
• Privacy Policy. The Privacy Policy applies only to Xtra Point and does not apply to any third-party website or service linked to Xtra Point or recommended or referred to through Xtra Point or by Xtra Point’s staff.
• FERPA Compliance. If any Account Holder is an “educational agency or institution” as that term is defined by the Family Educational Rights and Privacy Act of 1974 (“FERPA”), such Account Holder will ensure that the dissemination and disposition of educational records complies at all times with FERPA and any subsequent amendments thereto, and all such Account Holders represent and warrant that they have obtained the appropriate consents of applicable students as required under FERPA to disclose any “personally identifiable information” as defined by FERPA.  As required for FERPA compliance, Xtra Point is acting under the direct control of the educational agency or institution with respect to the use and maintenance of education records pertaining to that educational agency or institution. Such control includes the ability of the educational agency or institution to dictate the level of data collection performed by the Podium X Application.
• Risk of Exposure. Xtra Point shall maintain and enforce commercially reasonable technical and organizational safeguards against accidental or unlawful destruction, loss, alteration or unauthorized disclosure or access of the Account Holder Data.  The Account Holder recognizes and agrees, however, that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using Xtra Point, the Account Holder assumes such risks. 
• Data Configuration.  The Account Holder will ensure that both the Account Holder and its Users are familiar with the use and operation of Xtra Point.  Following any initial implementation assistance by Xtra Point, the Account Holder and its Users shall load the Account Holder Data and configure Xtra Point, as needed, to operate the Podium X Application in the Account Holder’s computing environment.  The Account Holder, not Xtra Point, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and right to use all Account Holder Data, and Xtra Point shall not be responsible or liable for any deletion, correction, destruction, damage, loss, or failure to store any Account Holder Data that is caused by the Account Holder or its Users, or the use or misuse of User login credentials by a third party. 
• Data Accuracy. Xtra Point will have no responsibility or liability for the accuracy of data uploaded to the Podium X Application by the Account Holder or its Users, including without limitation, Account Holder Data and any other data that is input or uploaded by Users.
• Data Deletion. Xtra Point may permanently erase Account Holder Data if the Account Holder’s account is delinquent, suspended, or terminated for 30 days or more, or 30 days after the Subscription Termination Date.

Intellectual Property and Feedback.

• Intellectual Property to Xtra Point. Xtra Point retains all right, title, and interest in and to the Podium X Application, including without limitation, all software used to provide Xtra Point and all Documentation, graphics, user interfaces, logos, and trademarks reproduced through the Podium X Application.  These Terms of Service do not grant any Account Holder or User any Intellectual Property license or rights in or to the Podium X Application or any of its components.  The Account Holder recognizes that Xtra Point and its components are protected by copyright and other laws.
• Feedback. Xtra Point has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that the Account Holder or Users provide to Xtra Point, and nothing in these Terms of Service or in the parties’ dealings arising out of or related to these Terms of Service will restrict Xtra Point’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting the Account Holder or its Users.  Notwithstanding the provisions dealing with Confidentiality, below, Feedback will not be considered Confidential Information. “Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Xtra Point’s products or services.

Payment.

• Subscription Fees. The Account Holder shall pay Xtra Point in advance for the Subscription Fees quoted to the Account Holder by Xtra Point for the right to access and use the Podium X Application.  Any future Subscription Fees shall be at Xtra Point’s then-published rates or as otherwise agreed by the parties.  All payment obligations for Subscription Fees are non-cancelable and all amounts paid are nonrefundable.
• Taxes. Prices quoted do not include, and the Account Holder shall pay, any and all applicable taxes, including without limitation, sales, use, gross receipts, value-added, GST, personal property, or other tax (including interest and penalties imposed thereon) on the transactions contemplated herein, other than taxes based on the net income or profits of Xtra Point.
• Late Payment, Suspension. The Account Holder may not withhold or “setoff” any amounts due hereunder.  In addition to any other legal remedies, Xtra Point reserves the right to suspend or terminate the Account Holder’s access to Xtra Point until all amounts due are paid in full.
• Pricing Terms. All prices are stated and payable in U.S. Dollars. All pricing terms are confidential, and the Account Holder agrees not to disclose them to any third party.

 

Confidentiality. 

For purposes of this section, a party receiving Confidential Information (as defined below) shall be the “Recipient” and the Party disclosing such information shall be the “Disclosing Party.”

• Confidential Information. “Confidential Information” means all financial, technical, strategic, marketing, and other information relating to the Disclosing Party or its actual or prospective business, products, or technology that may be, or has been, furnished or disclosed to Recipient by, or acquired by Recipient directly or indirectly from the Disclosing Party, whether disclosed orally or in writing or electronically or some other form, and shall include without limitation the terms and conditions and pricing information of these Terms of Service, as well as Xtra Point’s Documentation, source code, translations, compilations, implementation methodologies, partial copies, and derivative works.  Notwithstanding the foregoing, Confidential Information does not include information that: (1) is or subsequently becomes publicly available (through no fault of the Recipient); (2) the Recipient lawfully possesses before its disclosure; (3) is independently developed without reliance on the Disclosing Party’s Confidential Information, as evidenced by written documentation by the Recipient; or (4) is received from a third party that is not obligated to keep it confidential.
• Non-Disclosure. Upon receipt of Confidential Information, the Recipient shall do the following:

• • Use at least the same degree of care that it uses with respect to its own confidential information, but in no event less than a reasonable degree of care to avoid disclosure, publication, or dissemination of the other party’s Confidential Information;
  • Disclose Confidential Information only to its personnel who have a need to know;
  • Disclose Confidential Information only to third parties who have entered into an appropriate confidential disclosure agreement with the Recipient, prior to any disclosure of Confidential Information, and to whom such disclosure has been previously authorized in writing by the Disclosing Party; and
  • Promptly report any loss of any Confidential Information to the Disclosing Party.

• Return of Confidential Information. Upon the written request of the Disclosing Party or termination or expiration of these Terms of Service, and regardless of whether a dispute may exist, Recipient shall return or destroy (as instructed by Disclosing Party) all Confidential Information of Disclosing Party in its possession, custody, or control and cease all further use thereof.

• Injunctive Relief. Recipient acknowledges that violation of the provisions of this section would cause irreparable harm to Disclosing Party not adequately compensable by monetary damages.  In addition to other relief, it is agreed that injunctive relief shall be available without the necessity of posting bond to prevent any actual or threatened violation of such provisions.
• Survival. The provisions of this Section shall survive termination of these Terms of Service.

Warranty Disclaimers.

• As Is.  EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS OF SERVICE, THE PODIUM X APPLICATION IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND XTRA POINT EXPRESSLY DISCLAIMS, AND THE ACCOUNT HOLDER EXPRESSLY WAIVES, ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, OR ARISING BY CUSTOM OR TRADE USAGE, AND WHETHER RELATING TO COMPATIBILITY, SECURITY, AND/OR FREEDOM FROM VIRUSES, OR ANY OTHER WARRANTY, AND SPECIFICALLY, XTRA POINT MAKES NO WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY.
• Discontinuation of Use Exclusive Remedy.  IF THE ACCOUNT HOLDER IS DISSATISFIED WITH ANY ASPECT OF THE PODIUM X APPLICATION OR WITH THESE TERMS OF SERVICE, THE ACCOUNT HOLDER’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE PODIUM X APPLICATION.

Limitation of Liability.

• Excluded Damages.  TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL XTRA POINT AND ITS AFFILIATES, RESELLERS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE, OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, BUSINESS INTERRUPTION, LOSS OF OPPORTUNITY, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF XTRA POINT HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. 
• Dollar Cap. TO THE EXTENT NOT PROHIBITED BY LAW, AT NO TIME SHALL THE CUMULATIVE LIABILITY OF XTRA POINT FOR ALL CLAIMS ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT IN ANY WAY, UNDER ANY THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT OF ALL SUBSCRIPTION FEES PAID TO XTRA POINT UNDER THESE TERMS OF SERVICE DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF THE MOST RECENT CLAIM.
• Acknowledgment.  THE FOREGOING LIMITATIONS OF LIABILITY AND EXCLUSIONS OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF ANY REMEDIES PROVIDED. THESE LIMITATIONS AND EXCLUSIONS ARE REFLECTED IN THE PRICING OF THE PODIUM X APPLICATION AND THEY REPRESENT A NEGOTIATED AND AGREED ALLOCATION OF RISK BETWEEN THE PARTIES AND ARE AN ESSENTIAL PART OF THESE TERMS OF SERVICE.

Indemnity.  The Account Holder shall defend, indemnify, and hold harmless Xtra Point and the Xtra Point’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns, against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to the Account Holder’s alleged or actual use of, misuse of, or failure to use Xtra Point, including without limitation: (a) claims by Users or by the Account Holder’s employees, as well as by the Account Holder’s own student athletes; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Account Holder Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to Xtra Point through the Account Holder’s account, including without limitation by Account Holder Data; and (d) claims that use of Xtra Point through the Account Holder’s Account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising.  Indemnified Claims include, without limitation, claims arising out of or related to Xtra Point’s negligence. The Account Holder’s obligations set forth in this section include retention and payment of attorney’s fees and payment of court costs, as well as settlement at the Account Holder’s expense and payment of judgments. Xtra Point will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations.

 

Force Majeure.  Xtra Point shall not be in default of these Terms of Service if prevented from performing any obligation for any reason beyond its reasonable control, including without limitation, governmental laws and regulations, terrorist acts, acts of God, calamities, floods, and storms, act of public authority, injunction, war, embargo, strike, lock out, failure or delay of a supplier or carrier, failure of the Internet, telecommunications service or public utility, casualty, or natural disaster, or any other cause, circumstance or condition, whether pre-existing or supervening, that is beyond Xtra Point’s reasonable control.  To the extent failure or delay in performance is caused by such a cause, Xtra Point shall be excused from performance under these Terms of Service for so long as such circumstance continue to prevent performance.

 

Publicity. Unless otherwise agreed by Account Holder and Xtra Point, during the Subscription Term, Xtra Point may disclose Account Holder’s name as a subscriber of the Podium X Application, and Account Holder hereby grants Xtra Point the right to display Account Holder’s name and logo in Xtra Point’s marketing materials and on Xtra Point’s public website, in each case in accordance with any branding guidelines Account Holder may provide to Xtra Point.

 

Term and Termination.

• Subscription Term. The Account Holder agrees to a Subscription Term as specified in the Subscription Agreement. After the initial Subscription Period, the Subscription will renew for the same length of Subscription Period and on the same terms and conditions as the prior Subscription Period unless either party provides written notice of nonrenewal to the other party prior to the Renewal Date. 
• Effects of Termination. Upon termination of these Terms of Service, the Account Holder shall cease all use of the Podium X Application and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of these Terms of Service: (a) any obligation of Account Holder to pay Subscription Fees incurred before termination; (b) the sections captioned “Intellectual Property and Feedback,” “Confidentiality,” “Warranty Disclaimers,” “Indemnification,” and “Limitation of Liability;” and (c) any other provision of these Terms of Service that must survive to fulfill its essential purpose.
• Delivery and Destruction of Account Holder Data. In the event these Terms of Service are terminated, Xtra Point will make available to the Account Holder the Account Holder Data within 30 days of termination if the Account Holder so requests in writing at the time of termination.  The Account Holder agrees and acknowledges that Xtra Point has no obligation to retain the Account Holder Data beyond 30 days after the Subscription Termination Date.  Xtra Point may delete such Account Holder Data after the thirty-day period following Subscription Termination Date if the Account Holder does not request a copy of the Account Holder Data.  In the event of termination due to the Account Holder’s breach of these Terms of Service, Xtra Point may apply a reasonable time and materials fee to make available to the Account Holder a copy of the Account Holder Data.

 

Miscellaneous.

• Entire Agreement.  These Terms of Service constitute a complete and exclusive final written expression of the terms of agreement between the parties regarding the subject matter hereof.  It supersedes all earlier and contemporaneous agreements, understandings, and negotiations concerning the subject matter.  In the event of any conflict between these Terms of Service and any other agreement(s), these Terms of Service shall control.
• Modification of Terms of Service.  Xtra Point may modify or update these Terms of Service at any time. In the event Xtra Point determines it is necessary to make a material modification to these Terms of Service, Account Holder will be notified of such change and asked to affirmatively agree to such modified version of these Terms of Service. Note, however, that Account Holder’s use of the Podium X Application after modifications to these Terms of Service become effective constitutes Account Holder’s binding acceptance of such changes. 
• Assignment or Change in Control.  These Terms of Service may not be assigned by either party without the prior written approval of the other party, but may be assigned without consent in the event of a merger or reorganization in which the surviving entity owns or controls more than 50% of the acquired party and agrees in writing to assume the obligations under these Terms of Service. Any purported assignment in violation of this section shall be void.  Any actual or proposed change in control of the Account Holder that results, or would result, in a direct competitor of Xtra Point directly or indirectly owning or controlling 50% or more of the Account Holder shall entitle Xtra Point to terminate these Terms of Service for cause immediately upon written notice.
• Security, No Conflicts.  Each party agrees to inform the other of any information made available to the other party that is classified or restricted data, agrees to comply with the security requirements imposed by any state or local government, or by the United States Government, and shall return all such material upon request.  Each party represents and warrants that its participation in these Terms of Service does not conflict with any contractual or other obligation of the party or create any conflict of interest and shall promptly notify the other party if any such conflict arises.
• Governing Law.  The construction and performance of these Terms of Service shall be governed by the substantive laws of the United Stated and the laws of the State of Florida, without regard to its conflicts of laws provisions.  Any action under or concerning these Terms of Service shall be brought exclusively in the state or federal courts of Duval County, Florida USA.  The Parties irrevocably agree and consent that said forum is convenient and has jurisdiction to hear and decide any such action.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms of Service. Any claim by one party against the other party must be brought within three years after it arose, or be barred.
• Severability.  If any provision of these Terms of Service is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
• No Waiver.  The failure of either party to enforce any right or provision in these Terms of Service shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.

• No Third-Party Beneficiaries. Nothing in these Terms of Service, express or implied, is intended to or shall confer upon any person or entity other than the parties hereto, any legal or equitable right, benefit or remedy of any nature under or by reason of these Terms of Service.