Terms of Service
Last Updated: June 17, 2022
Terms of Service (“ Agreement ”) constitute a contract between Xappex LLC (“ Xappex ”), and you, the customer that has signed up for the Services and agreed to the terms of this Agreement (“ Customer ”). Xappex wishes to provide and you wish to have the right to access pursuant to the terms of this Agreement, a subscription service. This Agreement includes and incorporates the Purchase Order Form with which you purchased the Services and any subsequent Order Forms (submitted in written or electronic form). By paying for, accessing or using the Services, you agree to be bound by this Agreement. If you are entering into this Agreement on behalf of a company, organization or other entity, you represent that you have such authority to bind such entity and are agreeing to this Agreement on behalf of such entity. If you do not have such authority to enter into this Agreement or do not agree with these terms and conditions, you may not use the Services.
1.1 The following terms, when used in this Agreement will have the following meanings:
“ Documentation ” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Xappex for the Services, which Xappex may modify from time to time.
“ Order Form ” means an invoice, order form, quote or other similar document that sets forth the specific Services and pricing therefor, and that references this Agreement.
“ Services ” means the Subscription for Software products ordered by or made available to Customer under an Order Form (collectively with the described services in the applicable Order Form or Documentation).
“ Software ” means Xappex proprietary software, which may integrate with Customer’s Third Party Services, network or applications, as provided in the Documentation and any updates, fixes or patches developed from time to time. Software is protected by copyright laws and treaties, as well as laws and treaties related to other forms of intellectual property
“ Subscription ” means Customer`s right to use Software for a limited period of time.
“ Confidential Information ” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Customer Data” means any data of any type which is provided by Customer to Xappex or accessed or collected by Xappex on behalf of Customer in connection with providing the Services or otherwise performing Xappex’s obligations under the Agreement, including without limitation information which Customer inputs, or provides to Xappex for inputting, into the Services. Due to the specifics of Software Customer has access to Customer Data limited to Customer`s account data, which includes account identifier, Customer`s and Customer`s user`s business name, name, email address, telephone number, and postal address.
2.1 Provision of the Subscription for Xappex Software. Subject to the terms and conditions of this Agreement, Xappex hereby grants Customer and its registered employees and contractors (“ Users ”) an exclusive license to use and access the Services for the period of time covered by the license. Without first obtaining the express written consent of Xappex, Customer may not assign their rights and obligations under this Agreement, or redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer their rights to Software. The Services are subject to modification from time to time at Xappex’s sole discretion, provided the modifications do not materially diminish the functionality of the Services provided by Xappex.
2.2 Data Security.
Customer maintains a commercially reasonable security program that is designed to (i) ensure the security and integrity of Customer Data uploaded by or on behalf of Customer to the Services; (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. Solely if and to the extent Xappex processes Customer Personal Data (as defined in the DPA) that is subject to the GDPR, the GDPR Data Processing Agreement provided on https://www.xappex.com/docs/legal/data-processing-agreement/will apply (“DPA”).
2.3 Limitations. The rights granted herein are subject to the following restrictions (the “ License Restrictions ”). Customer will not directly or indirectly:
(a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code, object code or underlying structures, ideas or algorithms of the Services or any data related to the Services;
(b) attempt to probe, scan or test the vulnerability of the Services, breach the security or authentication measures of the Services without proper authorization or willfully render any part of the Services unusable;
(c) use or access the Services to develop a product or service that is competitive with Xappex’s products or Services or engage in competitive analysis or benchmarking;
(d) share, transfer, distribute, resell, lease, license, or assign Services or otherwise offer the Services on a standalone basis; or
(e) otherwise use the Services outside the scope expressly permitted hereunder and in the applicable Order Form.
2.4 Xappex reserves the right to suspend Customer’s (or any User’s) access to the Services immediately (i) in the event that Customer breaches this Section 2.3 or Section 4 of this Agreement, or breaches any other provision of this Agreement and fails to correct that breach within the applicable cure period; or (ii) as it deems reasonably necessary to respond to any actual or potential security or availability concern that may affect customers or Users.
2.5 Customer Responsibilities.
(a) Customer will only use the Services in accordance with the Documentation and as set forth in this Agreement.
(b) Customer will (i) be responsible for all use of the Services under its account (whether or not authorized), (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Xappex promptly of any such unauthorized access or use and (iii) be responsible for obtaining and maintaining any equipment, software, and ancillary services needed to connect to, access or otherwise use the Services, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain such equipment, software and services, and Xappex will have no liability for such failure (including under any service level agreement, if applicable). In addition, Customer will be responsible for ensuring that its systems (e.g., APIs) have sufficient bandwidth to use the Services.
(c) Customer’s use of third party products or services that are not licensed to Customer directly by Xappex (“ Third Party Services ”) shall be governed solely by the terms and conditions applicable to such Third Party Services, as agreed to between Customer and the third party. Xappex does not endorse or support, is not responsible for, and disclaims all liability with respect to Third Party Services, including without limitation, the privacy practices, data security processes or other policies related to Third Party Services. Customer agrees to waive any claim against Xappex with respect to any Third Party Services.
(d) Customer may enable integrations between the Services and Third Party Services (each, an “ Integration ”). Customer is responsible for providing any and all instructions to the Third Party Service provider about the use and protection of Customer Data. Xappex and Third Party Service providers are not subprocessors of each other.
(e) Customer acknowledges that the Services will require Users to share with Xappex certain information which may include personal information regarding Users (such as usernames, passwords, email address and/or phone number) solely for the purposes of providing the Services. Prior to authorizing an individual to become a User, Customer is fully responsible for obtaining the consent of that individual, in accordance with Applicable Law, to the use of his/her information by Xappex. Customer represents and warrants that all such consents have been or will be obtained prior to authorizing any individual to become a User.
(f) Customer will be fully responsible for Users’ compliance with this Agreement and any breach of this Agreement by a User shall be deemed to be a breach by Customer. Xappex relationship is with Customer and not individual Users or third parties using the Services through Customer, and Customer will address all claims raised by its Users directly with Xappex.
3.1 Payments and Confirmations of Payment.
(a) By paying for the license using a credit card, PayPal, or any other payment method, including check or wire transfer, Customer confirms that they have read and accept the terms of the Agreement.
(b) By setting up automatic payments Customer authorizes Xappex`s payment facilitator to charge the amount due for the invoice being paid to Customer`s credit card or PayPal account and send the money to Xappex less the appropriate fees.
(c) By clicking “Buy” Customer consents to receive a one-time confirmation of this payment electronically to the email address Customer provided to Xappex.
(d) By setting up automatic payments Customer consents to receive a one-time confirmation of each payment electronically to the email address Customer provided to Xappex during registration.
(e) By buying a license to use the Product Customer consents to receive product-specific news and updates. Customer may unsubscribe from these communications at any time.
3.2 License, Fees, Cancellations, and Refunds.
(a) Customer will pay Xappex the fees set forth in the Order Form available on the product purchase page at https://www.xappex.com. Fees are quoted and payable in United States dollars. Xappex reserves the right to change the fees or applicable charges and to institute new charges and fees at the end of the initial term, as specified in the Order Form, or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email).
(b) All Xappex subscriptions are set up as automatically renewing by default. Customer has a choice to turn off automatic subscription renewal from the customer portal (portal.xappex.com), in which case Software will stop working after the expiration of the license period.
(c) Customer will have the right to cancel automatic payments at any time either from the customer portal (portal.xappex.com) or by writing to email@example.com with a request to cancel the subscription. In case of a cancellation Customer`s license will stay active for the period of time covered from the previous payment, but will not be renewed once this period expires.
(d) Customer will have the right to request a full refund within 7 (seven) days after purchasing (renewing) a monthly subscription and within 30 (thirty) days of purchasing (renewing) an annual subscription. No refunds will be issued beyond this grace period.
3.3 Late Payment. Xappex will suspend access to the Services immediately upon notice if Customer fails to pay any amounts hereunder.
3.4 Group licensing.
(a) By purchasing an annual group license your organization gets access to use G-Connector with as many Google accounts as the number of seats on the group license.
(b) The current license fee for each seat is available on the product purchase page and is the same as when purchasing individual licenses less the multi-user discount.
(c) The time period during which you have the license to use the Product starts at the moment of actual payment and stretches for 12 months.
(d) Xappex will suspend access to the Services for all users on the group license immediately upon notice if Customer chooses not to renew the license or fails to pay the amount as per the renewal invoice within 30 calendar days after its due date.
(e) Customer can add new users to a group license at any time. The fee for new users will be pro-rated according to the number of days remaining on the group license and will be calculated using the following formula: <annual license price>/365*<number of days remaining on the license at the moment of adding of new user(s)>. To add users to your group license, please use customer portal (portal.xappex.com) or send an email to firstname.lastname@example.org.
(f) Customer can reassign any of the existing licenses to a new user withing the same organization using customer portal (portal.xappex.com).
(g) Customer can remove users from your group license to make room for new users. There will be a credit issued for removed users to the Customer account. It will be pro-rated according to the number of days remaining on the license and will be calculated using the following formula: <annual license price>/365*<number of days remaining on the license at the moment of adding of new user(s)>. To remove users who no longer use the tool, please use customer portal (portal.xappex.com) or send an email to email@example.com.
3.5 Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “ Taxes ”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Xappex. Customer will not withhold any taxes from any amounts due to Xappex.
- Proprietary Rights and Confidentiality
4.1 Proprietary Rights. As between the parties, Xappex exclusively owns all right, title and interest in and to the Services and Xappex’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Data and Customer’s Confidential Information.
4.2 Feedback. Customer may from time to time provide Xappex suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“ Feedback ”) with respect to the Services. Xappex will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Xappex will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
4.3 Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of this Agreement to any third party, except that Xappex may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
- Warranties and Disclaimers
5.1 Limited Software Product Warranty. Xappex warrants that when properly installed and used under normal conditions, Software will perform substantially as advertised. In case of substantial flaws and omissions a patch will be provided to customers with an active subscription to address such flaws or omissions. During the period when your subscription is active you are eligible for free updates of the Software Product as soon as the new versions become available.
5.2 Disclaimer of Warranties and Limitation of Liability.
(a) DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH HEREIN, XAPPEX PROVIDES SOFTWARE “AS IS” AND MAKES NO OTHER WARRANTIES OR REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ERROR FREE PERFORMANCE, OR ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR USAGE OF TRADE.
(b) LIMITATION OF LIABILITY. Except for a claim in connection with a breach by either party of the intellectual property rights of the other party, in no event will either party, or their respective affiliates, employees or agents, Xappex suppliers, be liable for loss of profits, business, use or data, or for interruption of business, or any other indirect, incidental, consequential or punitive damages even if advised of the possibility of such damages, regardless of the form of action, notwithstanding the failure of essential purpose of any limited remedy. In no event will Xappex aggregate, cumulative monetary liability for any damages arising from or related to this Agreement, whether in contract or in tort or under any other legal theory (including strict liability and negligence), exceed the license fees actually paid by Customer to Xappex for the applicable Software or the services fees actually paid by Customer to Xappex for the applicable services. Nothing in this Agreement shall operate so as to restrict or exclude any liability for death or personal injury caused by negligence of either party. The pricing set forth in the Schedules reflects this allocation of risk and the limitation of liability specified herein.
Any controversy or claim for damages arising out of or relating to these Terms and Conditions shall be settled through private arbitration in Clark County, Nevada, USA , and judgment may be entered in any court with jurisdiction. The arbitration panel shall consist of three persons, one selected by Xappex, one selected by Customer, and a third selected by the two appointed arbitrators. The prevailing party in any legal action brought by one party against the other and arising out of this Agreement shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses, including court costs and reasonable attorneys’ fees.
5.3 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON- INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT THE SERVICES IS BASED ON PREDICTIVE STATISTICAL MODELS, AND ARE INTENDED TO AUGMENT THE EFFICIENCY OF, BUT NOT REPLACE, CUSTOMER’S IT HELPDESK. THE SERVICES MAY CONTAIN BUGS, MAKE ERRORS OR MISINTERPRET IT ISSUES, AND IN SUCH CASES XAPPEX CAN DISENGAGE ANY FUNCTIONALITY OF THE SERVICES AT CUSTOMER’S REQUEST. XAPPEX DOES NOT REPRESENT OR WARRANT THAT ANY OR ALL IT HELPDESK TICKETS WILL BE RESOLVED OR THAT HUMAN INTERVENTION WILL NOT BE REQUIRED TO RESOLVE AN IT HELPDESK TICKET.
5.4 BETA PRODUCTS. FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH XAPPEX WHERE CUSTOMER GETS TO USE ALPHA OR BETA PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA PRODUCTS”) OFFERED BY XAPPEX. THE BETA PRODUCTS ARE NOT GENERALLY AVAILABLE AND ARE PROVIDED “AS IS”. XAPPEX DOES NOT PROVIDE ANY INDEMNITIES, SERVICE LEVEL COMMITMENTS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION THERETO. CUSTOMER OR XAPPEX MAY TERMINATE CUSTOMER’S ACCESS TO THE BETA PRODUCTS AT ANY TIME.
6.1 Indemnity by Xappex. Xappex will defend Customer against any claim, demand, suit, or proceeding (“ Claim ”) made or brought against Customer by a third party alleging that the use of the Services as permitted hereunder infringes a United States patent or copyright or misappropriates a trade secret and will indemnify Customer for any damages finally awarded against (or any settlement approved by Xappex) Customer in connection with any such Claim; provided that (a) Customer will promptly notify Xappex of such Claim, (b) Xappex will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Xappex may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with Xappex in connection therewith. If the use of the Services by Customer has become, or in Xappex’s opinion is likely to become, the subject of any claim of infringement, Xappex may at its option and expense (i) procure for Customer the right to continue using and receiving the Services as set forth hereunder; (ii) replace or modify the Services to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate this Agreement and provide a pro rata refund of any prepaid fees corresponding to the terminated portion of the applicable subscription term. Xappex will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) compliance with designs, guidelines, plans or specifications provided by Customer; (B) use of the Services by Customer not in accordance with this Agreement; (C) modification of the Services by any party other than Xappex without Xappex’s express consent; (D) Customer Confidential Information or (E) the combination, operation or use of the Services with other applications, portions of applications, product(s) or services where the Services would not by itself be infringing (clauses (A) through (E), “ Excluded Claims ”). This Section states Xappex’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
6.2 Indemnification by Customer. Customer will defend Xappex against any Claim made or brought against Xappex by a third party arising out of the (i) Customer breach of any laws or regulations (including with respect to privacy); (ii) Customer’s or any User’s use of the Services; (iii) Customer’s violation of any agreements it has with any User; or (iv) Excluded Claims, and Customer will indemnify Xappex for any damages finally awarded against (or any settlement approved by Customer) Xappex in connection with any such Claim; provided that (a) Xappex will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Xappex’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Xappex of all liability) and (c) Xappex reasonably cooperates with Customer in connection therewith.
7.1 Term. The term of this Agreement will commence on the effective date of the initial Order Form and continue until terminated as set forth below. The initial term of each Order Form will begin on the Order Form effective date of such Order Form and will continue for the subscription term set forth therein. Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal either before or up to 15 days after the end of the then-current term.
7.2 Termination. Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
7.3 Survival. Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below.
8.1 Export Compliance. Each party will comply with the export laws and regulations of the United States, European Union and other applicable jurisdictions in providing and using the Services.
8.2 Publicity. Customer agrees that Xappex may refer to Customer’s name and trademarks in Xappex’s marketing materials and website; however, Xappex will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).
8.3 Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
8.4 Amendment; Waiver. No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision.
Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
8.5 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
8.6 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
8.7 Governing Law. This Agreement will be governed by the laws of the State of Nevada, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
8.8 Notices. Any notice required or permitted to be given hereunder will be given in writing by email. Xappex may provide notice using the information provided in the most recent Order Form and Customer may provide notice using the contact information provided on https://www.xappex.com.
8.9 Entire Agreement. This Agreement comprises the entire agreement between Customer and Xappex with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Xappex, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement. In the event of any conflict between this Agreement and the DPA Addendum, the DPA Addendum, as applicable, will govern.
8.10 Severability. If any provision of this Agreement shall be held to be invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws.
8.10 Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“ Force Majeure Event ”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
8.12 Interpretation. For purposes hereof, “including” means “including without limitation”.