These Terms of Service (“Terms”) cover all software provided by Xama Technologies delivered as a hosted solution and associated services including, but not limited to, the Services provided via the Xama Platform.
These Terms apply between (1) Xama Technologies Limited, a company incorporated and registered in England with registration number 11398708, whose registered office is at Haines Watts, Old Station House, Station Approach, Newport Street, Swindon, England, SN1 3DU (“Xama”, “We”, “Our”, “Us”) and (2) the legal person subscribing to the Service, as indicated during the sign-up process (“Subscriber”, “You”, “Your”).
Where the Subscriber is a corporation or other entity with separate legal personality, the individual subscribing to the Service and accepting these Terms represents to Us that he/she has the requisite authority to do so and to bind the Subscriber to these Terms.
These Terms govern our rights and obligations as provider of the Service and Your rights and obligations as Subscriber. Please read these Terms carefully. You may only subscribe to and access the Service if you have indicated Your acceptance of these Terms.
We reserve the right to change these Terms at any time, effective upon the posting of a modified version of the Terms on our Website and/or within the Service. We will make every effort to communicate these changes to You via email or notification via the Website or within the application itself. It is Your obligation to ensure that You have read, understood and agree to the most recent Terms available on the Website.
1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms, unless the context requires otherwise, the capitalized words and expressions set out below shall have the following meaning:
“Agreement” means the legal agreement between You and Us, incorporating the Order and these Terms.
“Beneficial Client” means the Subscriber, unless, in relation to a Systems Integration, the Subscriber has registered to use the Service on behalf of, or to provide services to, another person (“A”) (whether A is a body corporate or otherwise), in which case the Beneficial Client is A in relation to such Systems Integration.
“Confidential Information” includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, that is either clearly labelled or expressed as being confidential or which a reasonable business person would regard as being confidential, including the Service but does not include information which is, or becomes, publicly available other than through unauthorized disclosure by the other party, or other information that is anonymized and/or amalgamated.
“Credit” means each credit purchased by You (if any) in order to utilise certain functions within the Service.
“Data Protection Legislation” means all applicable laws and regulations from time to time in force relating to the protection of personal information, including the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the GDPR and any laws substituting, re-enacting or replacing any of the forgoing, as amended or updated from time to time.
“Effective Date” means the date on which Your Order is accepted and confirmed by us.
“Fair Usage Limits” means the fair usage limits applicable to the use of the Service, as shown at https://xamatech.com/pricing/.
“GDPR” means the General Data Protection Regulation (EU 2016/679) as retained in the UK by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (SI 2019/419).
“Intellectual Property Right” means any patent, trademark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
“Invited User” means any person or entity, other than the Subscriber, that uses the Service with the authorisation of the Subscriber from time to time including, for the avoidance of doubt, the Beneficial Client and any individuals invited to use the Service on its behalf.
“Order” means the order submitted by You to Us and setting out Your details, details of the Subscription Package selected by You, and any other commercial terms agreed between You and Us, whether created and submitted electronically via our Website or otherwise.
“Service” means the services provided to You by Xama via the Xama Platform and/or via a Systems Integration.
“Subscriber Data” means any data inputted by You or with Your authority into the Website or into the various software solutions that are integrated between by the Service at any time.
“Subscription Package(s)” means the subscription package selected by You when subscribing to the Service. Further details of the available packages can be viewed at https://xamatech.com/pricing/ and currently include “Free”, “Premium”, and “Premium+”.
“Subscription Fees” means the fees payable by You for access to and use of the Service, including the fees payable for Credits, and, where You subscribe to the Premium or Premium+ Subscription Package (or any similar package we offer from time to time), the recurring subscription fees payable in advance.
“Systems Integration” means any two or more systems whose data is synchronised through the use of the Service, such integration to be subject to separate agreement between the parties.
“Virus” refers to any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
“Website” means the Internet site at the domain www.xamatech.com or any other site operated by Xama and nominated by it for access to the Xama Platform from time to time.
“Xama Data” means all data held within Xama’s systems and databases, or those of its third party data providers, which is combined with Subscriber Data or otherwise made available to the Subscriber and its users via the Service.
“Xama Platform” means the online software application(s) provided and made accessible by Xama in order for You to access and use the Service.
1.2 In these Terms, the following rules of interpretation shall apply:
1.2.1 Words and defined terms importing the singular shall be treated as importing the plural and vice versa.
1.2.2 The clause and paragraph headings used in these Terms are inserted for ease of reference only.
1.2.3 A reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns.
1.2.4 Any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words or expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words.
1.2.5 A reference to ‘writing’ or ‘written’ shall include email.
1.2.6 A reference to any law or legislation is a reference to it as amended, react, replaced, extended, re-enacted or consolidated from time to time and includes any subordinate legislation made from time to time under that legislation.
2. LICENCE AND USE OF SOFTWARE AND SERVICE
2.1 Your Order constitutes an offer by You to purchase access to the Service from Xama, on and subject to these Terms. This offer shall not be deemed accepted by Us unless and until (i) We issue written confirmation to You; or (ii) We activate your access to the Service (whichever occurs earlier).
2.2 As from the Effective Date, Xama grants You the right to access and use the Service via the Xama Platform and/or Systems Integration (as applicable) with the particular user roles, size and access available to You according to Your selected Subscription Package. This is a non-exclusive right that is limited by and subject to this Agreement.
2.3 The licence to access and use the Service is personal to You and may only be used for Your own lawful business purposes, provided that this may include usage for and on behalf of a Beneficial Client or in order to provide services to a Beneficial Client, subject to your compliance with these Terms and any associated agreement entered into between You and Us in respect of a Systems Integration. You agree to ensure that You have the requisite authority to use the Service on behalf of a Beneficial Client and to input any Subscriber Data originating from a Beneficial Client for the purpose of using the Service.
2.4 Where You, as Subscriber, provide access to the Service to a third-party Beneficial Client or use the Service on their behalf, You agree that (i) You remain responsible to Us for the use of the Service and for compliance with these Terms; (ii) You will impose similar terms and restrictions on the Beneficial Client in relation to the use of the Service and Xama Data as those contained in these Terms; (iii) You will not give any warranty or commitment in relation to the Service other than as set out in these Terms; and (iv) Xama shall have no liability direct to the Beneficial Client.
2.5 Where the Service enables you to give access to an Invited User, You acknowledge and agree that (i) You are solely responsible for determining who is granted access to the Service on Your behalf as an Invited User and what level of user role access to the relevant organisation and Service that Invited User has; (ii) the Invited User will have access to Your Subscription Package, including visibility of the Subscriber Data stored therein; and (iii) You are solely responsible for Your Invited Users’ use of the Service, including but not limited to the use of Credits and the Subscriber Data submitted and processed via the Service.
2.6 You undertake that each individual with access to the Service on Your behalf shall:
2.6.1 keep a secure password for his/her use of the Service, which shall be changed at reasonable intervals and shall be kept confidential and not be shared with any other person;
2.6.2 not access, store, distribute or transmit any Viruses via the Service; and
2.6.3 not access, store, distribute or transmit any material via the Service that is (i) unlawful, harmless, defamatory, or offensive; (ii) illegal or facilitates illegal activity; (iii) sexually explicit; (iv) discriminatory; or (v) otherwise likely to cause damage or injury to any person or property.
2.7 You agree to exercise all reasonable efforts to prevent any unauthorised access to, or use of, the Service. In the event of any such unauthorised access or use, You agree to promptly notify Us and to cooperate with us in any consequent investigation, suspension or block on the Service. Except in the case of Our own fraud, You shall be responsible for all use of the Service via Your credentials (including those of Invited Users) and all Subscription Fees due as a result.
2.8 You warrant and represent to Us that neither You, any Beneficial Client or Invited User has, or has any beneficial owner(s) (as defined in Article 3(6) of The Fourth Money Laundering Directive ((EU) 2015/849)) who have been or may be, identified on a sections list in a decision made by any of the following bodies:
2.8.1 The UN Security Council and/or one of its sanctions sub-committees;
2.8.2 The Office of Foreign Assets Control of US Department of the Treasury;
2.8.3 The Council of the European Union; and/or
2.8.4 His Majesty’s government operating under any autonomous UK sanctions regime,
and if We discover that You are in breach of this clause, we may immediately terminate the Agreement for Your irremediable breach.
- SERVICE OBLIGATIONS
3.1 We agree that We shall exercise reasonable endeavours to make the Service available 24 hours a day, seven days a week, but We do not warrant or undertake that the provision and use of the Service will be uninterrupted or error-free.
3.2 The Service may be unavailable from time to time due to routine or emergency maintenance. Wherever possible, We shall conduct maintenance outside of normal business hours in the UK. We will endeavour to provide prior notice of any maintenance to be conducted during business hours.
3.3 If You experience any issues in relation to the Service or any functionality, You may contact us at email@example.com. We will endeavour to acknowledge Your request within one (1) business day and, if the issue arises from any defect in the Service or Xama Platform, We will endeavour to resolve it as promptly as reasonably practicable.
3.4 We shall provide the Service with reasonable skill and care and in accordance with the descriptions and specifications provided by Us in writing. The Service features and functionality may be subject to change from time to time and We will endeavour to notify You in advance of any material changes.
3.5 The provision of the Service and certain functionality may be subject to links with third party services and data facilities, which are beyond Xama’s control. Therefore, We cannot guarantee the availability of any checks or reports that are dependent on third-party data sources.
- YOUR OBLIGATIONS
4.1 In connection with the use of the Service, You agree that You shall:
4.1.1 provide Us with all necessary cooperation, information and materials necessary for the provision of the Service, including but not limited to all relevant Subscriber Data;
4.1.2 comply with all applicable laws and regulations applicable to Your activities under this Agreement;
4.1.3 ensure that Your users, including Invited Users, comply with these Terms, and You shall be fully responsible for the acts and omissions of Your users;
4.1.4 obtain and maintain any necessary licences, consents and permissions for the proper use of the Service;
4.1.5 be solely responsible for procuring and maintaining Your network connections and telecommunications links from Your systems to Our Service;
4.1.6 immediately notify Us of any unauthorised use of Your passwords or any other breach of security;
4.1.7 take all other actions that We reasonably deem necessary to maintain or enhance the security of Your access to the Services;
4.1.8 not attempt to undermine the security or integrity of Xama’s computing systems or networks or, where the Service is hosted by a third party, that third party’s computing systems and networks;
4.1.9 not use, or misuse, the Service in any way which may impair the functionality of the Service or Website, or other systems used to deliver the Service or impair the ability of any other user to use the Service or Website;
4.1.10 not attempt to gain unauthorised access to any materials, features or functionality other than those to which You have been given express permission to access or to the computer system on which the Service are hosted;
4.1.11 not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer, or discover the source code of, the Xama Platform and any associated software used to deliver the Service or to operate the Website except as is strictly necessary to use either of them for normal operation;
4.1.12 not license, sell, rent, lease, assign, distribute, display, disclose or otherwise commercially exploit or make available the Xama Platform, Service (or any part of it) to any third party, except as expressly permitted under these Terms; and
4.1.13 not access all or any part of the Service in order to build a product or service which competes with the Service.
4.2 You agree to defend, indemnify and hold Xama harmless from and against all claims, costs, damage and loss arising from Your breach of any of the obligations in clause 4.1 or any third-party claim arising out of or in relation to the Subscriber Data.
- SUBSCRIPTION FEES AND PAYMENT
5.1 In relation to Credits, the following terms apply:
5.1.1 Unless We agree to issue Credits on an invoice basis, payment for Credits is due upfront by debit/credit card at the point of purchase and may be subject to a minimum purchase amount. We use Stripe as payment processor and do not hold card data Ourselves;
5.1.2 The number of Credits required to use a particular Service feature may vary and will be shown within the Service at the point of use. If you have insufficient Credits, you will be required to purchase additional Credits before proceeding;
5.1.3 Credits are valid for a period of twelve (12) months, after which they automatically expire. No refund or reissue of expired Credits will be provided;
5.1.4 If we agree to provide You with free trial Credits, they will be valid for a period of ninety (90) days, after which they will automatically expire. Trial Credits are provided at our sole discretion and may be discontinued, suspended, revoked or subject to varied terms at any time;
5.1.5 Credits may be allocated to a particular check or report prior to completion of the request, meaning those Credits will not be available for any other use. The Credit will only be used once the request is completed and the allocation may be cancelled prior to that point;
5.1.6 You may opt to set up an auto top-up within the Service, which triggers an automatic purchase of Credits if the number of available Credits falls below a designated level (because of either the use or allocation of Credits). You are responsible for maintaining a valid payment method for the top-up of Credits;
5.1.7 Credits are used to perform and complete a request, whether or not a positive result is returned. It is Your responsibility to ensure the Subscriber Data used to make a request is complete and accurate; and
5.1.8 It is Your responsibility to deactivate any auto top-up if you no longer intend to access or use the Service, as otherwise the expiry of any existing Credits may trigger an auto top-up.
5.2 We reserve the right to vary the price(s) applicable to Credits and/or the number of Credits required to use elements of the Service at any time. We also reserve the right to vary the Terms applicable to the Free Subscription Package, including the features and functionality available via the Free Subscription Package.
5.3 The Subscription Fees applicable to the Premium, Premium+ and any other Subscription Package we make available from time to time shall be as per the Order. Unless We agree an alternative method of payment, the Subscription Fees shall be debited on a recurring basis from Your registered debit/credit card and You are responsible for ensuring your payment data is complete and up to date. We use Stripe as payment processor and do not hold card data Ourselves.
5.4 All amounts due under this Agreement shall be (i) payable in pounds sterling; (ii) non-cancellable and non-refundable; and (iii) exclusive of VAT or any other applicable sales tax, which shall be payable in addition.
5.5 If You fail to make any payment on the due date, We may (without prejudice to any other rights and remedies We may have) (i) suspend Your access to and use of the Service without liability to You unless and until payment is received in full and cleared funds; and/or (ii) charge interest on the overdue amount at the annual rate of 4% above the base rate of the Bank of England from time to time, unless and until paid in full and cleared funds, whether before or after judgement.
- SUBSCRIBER DATA
6.1 The Service enables You to upload and submit Subscriber Data for the purpose of conducting checks and/or generating reports. You hereby grant Us a non-exclusive, limited licence to access and use such Subscriber Data to the extent necessary for the performance of the Service and Our obligations under this Agreement.
6.2 You shall own all right, title and interest in and to all of the Subscriber Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Subscriber Data.
6.3 You are solely responsible for keeping and maintaining full copies (including back-ups) of Your Subscriber Data. In the event of any loss, destruction, alteration, corruption or unavailability of Subscriber Data within the Service, Our sole and obligation shall be to recover or restore such Subscriber Data from the last available back-up We maintain, and We shall have no other liability to You no matter how caused. You will ensure that, where you use the Service for any Beneficial Client, the Beneficial Client is aware of and accepts the limitations under this clause 6.3.
- XAMA DATA
7.1 Xama Data is made available only for Your use as part of the Service and for the internal use of You (and Your Beneficial Client(s) where applicable). You agree that such Xama Data shall not be made public unless required by law.
7.2 You agree to ensure that all Xama Data is kept secure and shall use appropriate security practices and systems applicable to the use of Xama Data to prevent, and take prompt and proper remedial action against, unauthorised access, copying, modification, storage, reproduction, display or distribution of Xama Data. Such security practices and systems shall not be of a standard lower than the steps that You take to protect Confidential Information of a similar nature.
7.3 Xama Data as provided within any report or finding should not be extracted, copied, or used to create any derivative works.
7.4 Your obligations regarding the use and protection of Xama Data shall survive termination of this Agreement for any reason.
7.5 You understand that Xama Data is generated from a variety of third-party sources and Xama cannot guarantee the completeness or accuracy of the same. In particular, You agree that:
7.5.1 We give no opinion and make no recommendation in relation to persons appearing in Xama Data; and
7.5.2 Results derived from use of the Service should not be used to draw any automatic conclusion, or relied upon in isolation to make a decision, relating to any person flagged or not flagged in the course of the use of the Service.
7.6 You agree that You shall not use Xama Data for pre-employment screening, credit referencing in relation to any private individual or any other purpose that may constitute a “Consumer Report” in the Fair Credit Reporting Act 15 U.S.C. § 1681 (as amended from time to time).
- DATA PROTECTION
8.1 For the purposes of this clause, the following defined terms shall apply - “Controller”, “Processor”, “Data Subject”, “Personal Data” and “Processing/process” each have the meaning given in the Data Protection Legislation.
8.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Subscriber is the Controller and Xama is the Processor of any Personal Data comprised in the Subscriber Data (“Subscriber Personal Data”).
8.3 Instructions. Xama shall process Subscriber Personal Data only to the extent, and in such a manner, as is necessary for the purposes of providing the Service and in accordance with the Subscriber’s written instructions from time to time and shall not process the Subscriber Personal Data for any other purpose. If Xama believes that any instruction received by it from the Subscriber is likely to infringe the Data Protection Legislation it shall promptly inform the Subscriber and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.
8.4 Security. Taking into account the state of technical development and the nature of processing, Xama shall ensure that it has in place appropriate technical and organisational measures to protect the Subscriber Personal Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure, access or processing to ensure a level of security appropriate to the risk and harm that might result from such accidental, unauthorised or unlawful destruction, loss, alteration, disclosure, access or processing of the Subscriber Personal Data.
8.5 Sub-processing. Xama shall:
8.5.1 have the right to appoint sub-processors for the Processing of the Subscriber Personal Data, provided that any sub-processor appointed pursuant to this clause shall be subject to a written contract containing materially the same obligations as under this clause 7;
8.5.2 provide to the Subscriber on request details of its sub-processors and any changes made to the appointment of sub-processors; and
8.5.3 remain fully liable to the Subscriber for all the acts and omissions of each sub-processor as if they were its own.
8.6 Personnel. Xama shall ensure that all employees, workers and agents who have access to and/or process Subscriber Personal Data:
8.6.1 are informed of the confidential nature of the Subscriber Personal Data and are subject to a binding written contractual obligation to keep the Subscriber Personal Data confidential;
8.6.2 have undertaken training relating to handling Personal Data;
8.6.3 are aware of Xama’s duties as well as their personal duties and obligations under the Data Protection Legislation; and
8.6.4 shall only have access to such part or parts of the Subscriber Personal Data as is strictly necessary for performance of that person’s duties.
8.7 International transfers. Xama may transfer the Subscriber Personal Data outside of the UK or the European Economic Area where necessary for the proper provision of the Service, including in order to match Subscriber Personal Data with records held in other territory/ies and/or where a third-party data provider is located outside of the UK or European Economic Area. Where We do so, We shall ensure that appropriate safeguards are in place in accordance with Data Protection Legislation.
8.8 Breach. Xama shall promptly inform the Subscriber if any Subscriber Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable.
8.9 Records. Xama shall, in accordance with the Data Protection Legislation, make available to the Subscriber such information that is in its possession or control as is necessary to demonstrate Xama's compliance with the obligations placed on it under this clause 8 and to demonstrate compliance with the Data Protection Legislation.
8.10 Assistance. Xama shall:
8.10.1 provide such information and assistance (including by taking all appropriate technical and organisational measures) as the Subscriber may require in relation to the fulfilment of the Subscriber’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Legislation); and
8.10.2 provide such information, co-operation and other assistance to the Subscriber as the Subscriber reasonably requires (taking into account the nature of processing and the information available to Xama) to ensure compliance with the Subscriber’s obligations under Data Protection Legislation.
8.11 Deletion/return. At the end of the provision of the Services relating to the processing of Subscriber Personal Data, at the Subscriber’s cost and the Subscriber’s option, Xama shall either return all of the Subscriber Personal Data to the Subscriber or securely dispose of the Subscriber Personal Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires Xama to retain such Subscriber Personal Data.
8.12 Each party warrants and undertakes that it shall comply with the Data Protection Legislation in the performance of this Agreement.
8.13 The Subscriber warrants to Xama that it has all licences, consents and permissions necessary for Xama to process the Subscriber Personal Data in accordance with the Data Protection Legislation and as required to deliver the Services and the Subscriber agrees to indemnify and keep indemnified and defend at its own expense Xama against all costs, claims, damages or expenses incurred by Xama as a result of a breach of this warranty.
8.14 Each party shall act as an independent Controller in relation to any Personal Data comprised in the Xama Data disclosed or made available to the Subscriber. You warrant and undertake that you shall only use such Personal Data subject to having a lawful purpose for doing so, complying with the GDPR transparency requirements, and otherwise acting in accordance with the Data Protection Legislation.
9.1 Unless the relevant party has the prior written consent of the other or unless required to do so by law, each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any of the other party’s Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.
9.2 Each party’s obligations under this clause 9 will survive termination of the Agreement for any reason.
9.3 The provisions of clause 9.1 shall not apply to any information which:
9.3.1 is or becomes public knowledge other than by a breach of this clause;
9.3.2 is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
9.3.3 is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
9.3.4 is independently developed without access to the Confidential Information.
11. INTELLECTUAL PROPERTY
Title to, and all Intellectual Property Rights in and to the Service, Xama Platform, the Website, Xama Data and any documentation relating to the Service remain the property of Xama (or its licensors). No right or title in or to such Intellectual Property Rights are granted to the Subscriber or any Beneficial Client except as expressly set out herein.
12. WARRANTIES AND ACKNOWLEDGEMENTS
12.1 You acknowledge and agree that:
12.1.1 Xama has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You (including, where the Subscriber is not the Beneficial Client, the Beneficial Client).
12.1.2 If You use the Service or access the Website on behalf of or for the benefit of any Beneficial Client: (i) You are responsible for ensuring that You have the right to do so; and (ii) You are responsible for authorising any person who is given access to information or Xama Data, and You agree that Xama has no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address; and (iii) You are authorised to use the Services and the Website and to access the information and Data that You input into the Website, including any information or Data input into the Website by any person You have authorised to use the Service.
12.1.3 You will indemnify Xama against any claims, losses, damages, costs and expenses relating to: (i) Xama’s refusal to provide any person access to Your information or Data in accordance with these Terms; (ii) Xama making available information or Data to any person with Your authorisation; and (iii) any enforcement by the Beneficial Client of their Intellectual Property Rights to the Subscriber Data.
12.2 Save as expressly set out in these Terms, the provision of, access to, and use of, the Service is on an “as is” basis and at Your own risk. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. Xama is not in any way responsible for any such interference or prevention of Your access or use of the Service.
12.3 Any and all statutory and implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
12.4 You warrant and represent that You are acquiring the right to access and use the Service for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees, or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Service or the application of these Terms.
- LIMITATION OF LIABILITY
13.1 To the maximum extent permitted by law, Xama excludes all liability and responsibility to You in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Subscriber Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service, Xama Platform, Systems Integration or Website. You agree that You assume sole responsibility for results obtained from the use of the Service, and for conclusions drawn from such use.
13.2 Xama shall have no liability for any damage caused by errors or omissions in the Subscriber Data or any information, instructions or scripts provided to Xama by the Subscriber in connection with the Service, or any actions taken by Xama at the Subscriber’s direction.
13.3 If You suffer loss or damage as a result of Xama’s negligence or failure to comply with these Terms, Xama’s total liability to You (whether in contract, tort (including negligence), breach of statutory duty, or otherwise) in respect of any one claim, or series of connected claims, shall be limited to an amount equal to the Subscription Fees paid by You in the twelve (12) months prior to the claim or first in the series of connected claims.
13.4 Nothing in these Terms excludes or limits either party’s liability for (i) death or personal injury caused by its negligence; (ii) fraud or fraudulent misrepresentation; or (iii) any other liability that cannot lawfully be excluded or limited.
- TERMINATION AND SUSPENSION
14.1 The Agreement shall continue for the minimum duration covered by the Subscription Package selected and Subscription Fees Paid. At the end of each billing period, the Agreement shall automatically renew on the same Subscription Package and for the same billing duration, unless either party gives written notice to the other party prior to the renewal date that it does not wish to renew.
14.2 If You terminate this Agreement early or whilst You have unused Credits, Xama will not provide any refund for any remaining prepaid period or for any unused Credits.
14.3 Either party may terminate this Agreement with immediate effect on giving written notice to the other party if the other party:
14.3.1 breaches any of these Terms (including, without limitation, by non-payment of any Subscription Fees or other amounts due hereunder) and does not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
14.3.2 breaches any of these Terms and the breach is not capable of being remedied, which includes (without limitation) any breach of payment of Subscription Fees or other amounts due that are more than 30 days overdue; or
14.3.3 becomes insolvent or goes into liquidation or has a receiver or manager appointed over any of its assets or if it makes any arrangement with its creditors, or becomes subject to any similar insolvency event in any jurisdiction.
14.4 Where Xama has any right to terminate under clause 14.3, it may also opt to suspend Your access to and use of the Service (or any part of it) unless and until (i) the default is remedied; or (ii) Xama exercises the right to terminate.
14.5 Xama may suspend or terminate Your access to and use of the Service (or any part of it) where (i) You breach the Fair Usage Limits; (ii) You misuse any Xama Data; (iii) Xama is required to do so by a third-party provider of Xama Data; or (iv) Xama has reasonable cause to believe that Your access to the Service poses a risk to its systems and/or those of other users.
14.6 Termination of the Agreement is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:
14.6.1 remain liable for any accrued charges and amounts which become due for payment before or after termination; and
14.6.2 immediately cease to use the Services and the Website; and
14.6.3 return, delete or destroy (at Our option) all of Our Confidential Information in Your possession or under Your control, including documentation relating to the Service.
14.7 Any clauses that expressly or impliedly survive termination shall continue in full force and effect, including clauses 4.1.11, 4.2, 5.4, 5.5, 7, 8.11, 9, 12.2, 13, 14, and 15.
15.2 Waiver. If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
15.3 Force majeure. Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay sums due under the Agreement.
15.4 Assignment. You may not assign or transfer any rights or obligations under the Agreement to any other person without Xama’s prior written consent.
15.5 Severability. If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
15.6 Notices. Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Xama must be sent to firstname.lastname@example.org or to any other email address notified by email to You by Xama. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.
15.7 Third parties. A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.
15.8 No partnership or agency. Nothing in this Agreement is intended to or will operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise bind the other in any way.
15.9 Governing law and jurisdiction. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.