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Any reference in this agreement to "day" will be a calendar day.
"Affiliate" means any legal entity that a party owns, that owns a party, or that is under common ownership with a party. "Ownership" means, for purposes of this definition, control of more than a 50% interest in an entity.
"End User" means any person you permit to access Customer Data hosted in the Services or otherwise use the Services, or any user of a Customer Solution.
"Services" means any of the Xaana Pty Ltd services to which you subscribe under this agreement.
"Previews" means preview, beta, or other pre-release version or feature of the Online Services or Software offered by Xaana Pty Ltd to obtain customer feedback.
"Product" means any Xaana Pty Ld Service (including any Software).
"SLA" means the commitments we make regarding delivery and/or performance of a Service
"Subscription" means an enrollment for Online Services for a defined Term as specified on the Portal.
"Term" means the duration of a Subscription (e.g., 30 days or 12 months).
This Xaana Pty Ltd Customer Agreement is between the entity you represent, or, if you do not designate an entity in connection with a service purchase or renewal, you individually ("you" or "your"), and Xaana Pty Ltd ("Xaana", "we", "us", or "our"). It consists of the terms and conditions below, as well as the Services Terms, the SLAs, and the Offer Details for your Subscription or renewal (together, the "agreement"). It is effective on the date we provide you with confirmation or the date on which Service is renewed, as applicable.
Your rights to access Software on any device do not give you any right to implement Xaana Pty Ltd patents or other Xaana intellectual property in software or devices that access that device.
Your privacy is important to us. Please read the Xaana Privacy Statement (www.xaana.ai/privacy) as it describes the types of data we collect from you and your devices ("Data"), how we use your Data and the legal bases we have to process your Data. The Privacy Statement also describes how Xaana uses your content, which is your communications with others; postings submitted by you to Xaana via the Services; and the files, photos, documents, digital works, and videos that you upload, store, broadcast or share through the Services. Where processing is based on consent and to the extent permitted by law, by agreeing to these Terms, you consent to Xaana’s collection, use and disclosure of Your Content and Data as described in the Privacy Statement.
a. By agreeing to these Terms, you’re agreeing that, when using the Services, you will follow these rules:
b. Enforcement. If you violate these Terms, we may, in our sole discretion, stop providing Services to you. When investigating alleged violations of these Terms, Xaana reserves the right to review Your Content in order to resolve the issue, and you hereby authorise such review. However, we cannot monitor the entire Services and make no attempt to do so.
a. Ordering
b. Pricing and payment
Payments are due and must be made according to the Offer Details for the Service. Xaana Pty Ltd reserves the right to verify eligibility at any time and suspend the Online Service if the requirements are not met.
c. Taxes
Prices are exclusive of any taxes unless otherwise specified on the invoice as tax inclusive. You must pay any applicable value-added, goods and services, sales, gross receipts, or other transaction taxes, fees, charges or surcharges, or any regulatory cost recovery surcharges or similar amounts that are owed under this agreement and which we are permitted to collect from you under applicable law. You will be responsible for any applicable stamp taxes and for all other taxes that you are legally obligated to pay including any taxes that arise on the distribution or provision of Products to your Affiliates. We will be responsible for all taxes based on our net income, gross receipts taxes imposed in lieu of taxes on income or profits, or taxes on our property ownership.
If any taxes are required to be withheld on payments you make to us, you may deduct such taxes from the amount owed to us and pay them to the appropriate taxing authority; provided, however, that you promptly secure and deliver an official receipt for those withholdings and other documents we reasonably request to claim a foreign tax credit or refund. You must ensure that any taxes withheld are minimized to the extent possible under applicable law.
d. Term, termination, and suspension.
a. Defence
b. Limitations
Our obligations in Section 3.4.a. will not apply to a claim or award based on:
c. Obligations
Each party must notify the other promptly of a claim under this Section. The party seeking protection must
a. Limitation
The aggregate liability of each party for all claims under this agreement is limited to direct damages up to the amount paid under this agreement for the Services during the 12 months before the cause of action arose; provided, that in no event will a party's aggregate liability for any Service exceed the amount paid for that Services during the Subscription. For Products provided, Xaana Pty Ltd's liability is limited to direct damages up to $1,000.00 USD.
b. Exclusion
Neither party will be liable for loss of revenue or indirect, special, incidental, consequential, punitive, or exemplary damages, or damages for lost profits, revenues, business interruption, or loss of business information, even if the party knew they were possible or reasonably foreseeable.
c. Exceptions to limitations
The limits of liability in this Section apply to the fullest extent permitted by applicable law, but do not apply to:
a. Notices
Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to Xaana must be sent to the following address:
Xaana Pty Ltd
7 Mort Street, Canberra, ACT 2601
Australia
Notices to you will be sent to the address that you identify as your contact for notices. Xaana may send notices and other information to you by email or an other electronic form.
b. License Transfers and Assignment
You may not assign this agreement either in whole or in part or transfer licenses without Xaana's consent.
c. Severability
If any part of this agreement is held unenforceable, the rest remains in full force and effect.
d. Waiver
Failure to enforce any provision of this agreement will not constitute a waiver.
e. No agency
This agreement does not create an agency, partnership, or joint venture.
f. No third-party beneficiaries
There are no third-party beneficiaries to this agreement.
g. Force majeure
Neither party will be liable for any failure in performance due to causes beyond that party's reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber-terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Online Services)). This Section will not, however, apply to your payment obligations under this agreement.
h. Contracting authority
If you are an individual accepting these terms on behalf of an entity, you represent that you have the legal authority to enter into this agreement on that entity's behalf. If you specify an entity, or you use an email address provided by an entity you are affiliated with (such as an employer) in connection with a purchase or renewal, that entity will be treated as the owner for purposes of this agreement.
i. Government customers
Government customers should consult with Xaana prior to acceptance. By accepting this agreement, you represent that you have complied and will continue to comply with all applicable laws and governmental procurement requirements.
The Services may allow you to access or acquire products, services, websites, links, content, material, skills, integrations, bots or applications from independent third parties (companies or people who aren’t Xaana) ("Third-Party Apps and Services"). Many of our Services also help you find, make requests to, or interact with Third-Party Apps and Services or allow you to share Your Content or Data, and you understand that by using our Services you are directing them to make Third-Party Apps and Services available to you. The Third-Party Apps and Services may also allow you to store Your Content or Data with the publisher, provider or operator of the Third-Party Apps and Services. The Third-Party Apps and Services may present you with a privacy policy or require you to accept their terms before you can install or use the Third-Party App or Service. You should review the third-party terms and privacy policies before acquiring, using, requesting, or linking to any Third-Party Apps and Services. Any third-party terms do not modify these Terms. Xaana does not license any intellectual property to you as part of any Third-Party Apps and Services. You agree to assume all risk and liability arising from your use of these Third-Party Apps and Services and that Xaana is not responsible for any issues arising out of your use of them. Xaana is not responsible or liable to you or others for information or services provided by any Third-Party Apps and Services.
The Services, Third-Party Apps and Services, or material or products offered through the Xaana Pty Ltd Services may be unavailable from time to time, may be offered on a limited basis or may vary depending on your region or device. You agree not to access or use material or Services which are illegal or not licensed for use in the country from which you access or use such material or Services, or to conceal or misrepresent your location or identity in order to access or use such material or Services.
We strive to keep the Xaana Pty Ltd Services up and running; however, all online services suffer occasional disruptions and outages and Xaana is not liable for any disruption or loss you may suffer as a result. In the event of an outage, you may not be able to retrieve Your Content or Data that you’ve stored. We recommend that you regularly backup Your Data that you store on the Services.
We may change these Terms at any time, and we’ll tell you when we do. Using the Services after the changes become effective means you agree to the new terms. If you do not agree to the new terms, you must stop using the Services.
Sometimes you will need software updates to keep using the Services. Such updates are subject to these Terms unless other terms accompany the updates, in which case, those other terms apply. Xaana isn't obligated to make any updates available and doesn't guarantee that we will support the version of the system for which you purchased or licensed the software, apps, content or other products. Such updates may not be compatible with software or services provided by third parties. You may withdraw your consent to future software updates at any time by uninstalling the software.
Additionally, there may be times when we need to remove or change features or functionality of the Service or stop providing a Service or access to Third-Party Apps and Services altogether. Except to the extent required by applicable law, we have no obligation to provide a re-download or replacement of any material, Digital Goods, or applications previously purchased. We may release the Services or their features in a preview or beta version, which may not work correctly or in the same way the final version may work.
Unless accompanied by a separate Xaana licence agreement, any software provided by us to you as part of the Services is subject to these Terms.
The software is licensed, not sold, and Xaana reserves all rights to the software not expressly granted by Xaana, whether by implication, estoppel or otherwise. This licence does not give you any right to, and you may not:
If you purchase a Service, then these payment terms apply to your purchase and you agree to them.
a. Charges
If there is a charge associated with a portion of the Services, you agree to pay that charge in the currency specified. The price stated for the Services excludes all applicable taxes and currency exchange settlements, unless stated otherwise. You are solely responsible for paying such taxes or other charges. We may suspend or cancel the Services if we do not receive an on time, full payment from you. Suspension or cancellation of the Services for non-payment could result in a loss of access to and use of your account and its content. Depending on your location, some transactions might require foreign currency conversion or be processed in another country. Your bank might charge you additional fees for those services when you use a debit or credit card. Please contact your bank for details.
b. Billing
By providing Xaana with a payment method, you
Also, we may charge you up to the amount you have approved, and we will notify you in advance of any change in the amount to be charged for recurring Services. We may bill you at the same time for more than one of your prior billing periods for amounts that haven't previously been processed.
c. Recurring Payments
When you purchase the Services on a subscription basis (e.g., monthly, every 3 months or annually), you agree that you are authorising recurring payments, and payments will be made to Xaana by the method and at the recurring intervals you have agreed to, until the subscription for that Service is terminated by you or by Xaana. You must cancel your Services before the next billing date to stop being charged to continue your Services. We will provide you with instructions on how you may cancel the Services. By authorising recurring payments, you are authorising Xaana to process such payments as either electronic debits or fund transfers, or as electronic drafts from your designated account (for Automated Clearing House or similar payments), or as charges to your designated account (for credit card or similar payments) (collectively, "Electronic Payments"). Subscription fees are generally charged in advance of the applicable subscription period. If any payment is returned unpaid or if any credit card or similar transaction is rejected or denied, Xaana or its service providers reserve the right to collect any applicable return item, rejection or insufficient funds fee and process any such payment as an Electronic Payment.
d. Online Invoice and Errors
Xaana will provide you with an online billing invoice, which you can view and print. If we make an error on your bill, you must tell us within 90- days after the error first appears on your bill. We will then promptly investigate the charge. If you do not tell us within that time, you release us from all liability and claims of loss resulting from the error and we won't be required to correct the error or provide a refund, unless otherwise required by law. If Xaana has identified a billing error, we will correct that error within 90 days. This policy does not affect any statutory rights that may apply.
e. Refund Policy
Unless otherwise provided by law or the terms of a particular Serviceoffer, all purchases are final and non-refundable. If you believe that Xaana has charged you in error, you must contact us within 90 days of such charge. No refunds will be given for any charges more than 90 days old, unless otherwise required by law. We reserve the right to issue refunds or credits at our sole discretion unless otherwise required by law. If we issue a refund or credit, we are under no obligation to issue the same or similar refund in the future. This refund policy does not affect any statutory rights that may apply. You are not entitled to claim any cooling off period or any refund.Promotional Offers. From time to time, Xaana may offer Services for free for a trial period. Xaana reserves the right to charge you for such Services (at the normal rate) if Xaana determines (in its reasonable discretion) that you are abusing the terms of the offer.
f. Price Changes
We may change the price of the Services at any time and if you have a recurring purchase, we will notify you by email, or other reasonable manner, at least 15 days before the price change. If you do not agree to the price change, you must cancel and stop using the Services before the price change takes effect. If there is a fixed term and price for your Service offer, that price will remain in force for the fixed term.
g. Payments to You
If we owe you a payment, then you agree to timely and accurately provide us with any information we need to get that payment to you. Subject to applicable law, you are responsible for any taxes and charges you may incur as a result of this payment to you. You must also comply with any other conditions we place on your right to any payment. If you receive a payment in error, we may reverse or require return of the payment. You agree to cooperate with us in our efforts to do this. We may also reduce the payment to you without notice to adjust it for any previous over-payment.
h. Bank Account Payment Method
You may register an eligible bank account to use it as a payment method. Eligible bank accounts include accounts held at a financial institution capable of receiving direct debit entries. You represent and warrant that your registered bank account is held in your name or you are authorised to register and use this bank account as a payment method. By registering or selecting your bank account as your payment method, you authorise Xaana (or its agent) to initiate one or more debits for the total amount of your purchase or subscription charge (in accordance with the terms of your subscription service) from your bank account (and, if necessary, initiate one or more credits to your bank account to correct errors, issue a refund or similar purpose), and you authorise the financial institution that holds your bank account to deduct such debits or accept such credits. You understand that this authorisation will remain in full force and effect until you ask to remove your bank account information from Xaana. Laws applicable in your country may also limit your liability for any fraudulent, erroneous or unauthorised transactions from your bank account. By registering or selecting a bank account as your payment method, you acknowledge that you have read, understand and agree to these Terms.
“Xaana Ark Professional Services” are advisory and consulting services that Xaana Pty Ltd provides under a statement of work (“SOW”) to help you use the other Services. Xaana Ark Professional Services are “Services” for purposes of the Agreement.
Xaana Pty Ltd or any of its affiliates may enter into a SOW or an addendum to the Agreement with you to provide Xaana Ark Professional Services. Each SOW or addendum (together with the Agreement) is intended by the parties as the final, complete, and exclusive terms of their agreement and supersedes all prior agreements and understandings (whether oral or written) between the parties with respect to the subject matter of that SOW or addendum.
Xaana Pty Ltd will invoice you monthly for the Xaana Ark Professional Services. Payments for Xaana Ark Professional Services are not refundable. Xaana Pty Ltd does not provide legal or compliance advice. You are responsible for making your own assessment of whether your use of the Services meets applicable legal and regulatory requirements.
Other than Third Party Content, Content that Xaana Pty Ltd provides as part of the Xaana Ark Professional Services is Xaana or its affiliates’ Content. You are solely responsible for testing, deploying, maintaining and supporting Content provided or recommended by Xaana Ark Professional Services.
Xaana Ark Professional Services may develop Content consisting of either
Any materials or information that you own or license from a third party and provide to Xaana Pty Ltd for the purposes of the Xaana Ark Professional Services are Your Content. If you choose to provide access to Your Content to Xaana Pty Ltd, then you will ensure that you have adequate rights and permissions to do so. Xaana Pty Ltd and its affiliates will handle any personal data relating to your personnel (“Personnel”) that is provided to Xaana Ark Professional Services or its affiliates in connection with an SOW in accordance with the handling practices described in the Xaana Privacy Notice (available at www.xaana.ai/privacy). You will make the Xaana Privacy Notice available to any Personnel whose personal data you provide to Xaana or its affiliates.
All existing policies and the below apply for Xaana’s platform products namely ENIGMA2.0, FABRIQn and ALGOREUS
You are responsible for providing legally adequate privacy notices to End Users of your products or services that use Xaana’s platform products (including End Users in your private workforce) and obtaining all necessary consents from such End Users.
Xaana’s platform products are not intended for use in, or in association with, the operation of any hazardous environments or critical systems that may lead to serious body injury or death or cause environmental or property damage, and you are solely responsible for liability that may arise in connection with any such use.When using the public workforce:
Xaana’s Products use statistical analysis techniques to generate metrics that can be used to evaluate statistical bias in data and machine learning models, and to explain how models generate predictions. The output provided is not determinative of the existence or absence of statistical bias, or a comprehensive answer for how a model generates predictions. Such output is not legal advice and should be independently evaluated as appropriate for your use case.
Xaana’s Products collect performance and usage metrics and data regarding your use of the Service, including model version, inference and upload times, and diagnostic data. We may use these metrics and data to provide, maintain, and improve the quality and feature sets of the Services and Xaana Content.
You and your End Users are responsible for all decisions made, advice given, actions taken, and failures to take action based on your use of Xaana’s Products. Xaana Products use machine learning models that generate predictions based on patterns in data. Output generated by a machine learning model is probabilistic and should be evaluated for accuracy as appropriate for your use case, including by employing human review of such output.
You will not, and will not allow any third-party to, use the Xaana Products to, directly or indirectly, develop or improve a similar or competing product or service.If Xaana’s products are used to assist in identifying a person, and actions will be taken based on the identification that could impact that person’s civil liberties or equivalent human rights, the decision to take action must be made by an appropriately trained person based on their independent examination of the identification evidence.
Any Software, Documentation or technical information provided by Xaana (or its agents) shall be deemed "Xaana Confidential Information" without any marking or further designation. Except as expressly authorised herein, you will hold in confidence and not use or disclose any Xaana Confidential Information.
You acknowledge that disclosure of Xaana Confidential Information would cause substantial harm to Xaana that could not be remedied by the payment of damages alone and therefore that upon any such disclosure by you, Xaana shall be entitled to appropriate equitable relief.
These licence terms are an agreement between you and Xaana Pty Ltd. Please read them. They apply to the software platform products and services you purchase from Xaana Pty Ltd, including any updates or supplements for the application, unless the application comes with separate terms, in which case those terms apply.
If you comply with these licence terms, you have the rights below.
1. SCOPE OF LICENCE - The application is licensed, not sold. This agreement only gives you some rights to use the application. Xaana Pty Ltd reserves all other rights. Unless applicable law gives you more rights despite this limitation, you may use the services only as expressly permitted in this agreement. In doing so, you must comply with any technical limitations in the application that only allow you to use it in certain ways. You may not:
2. DOCUMENTATION - If documentation is provided with the application, you may copy and use the documentation for personal reference purposes only.
3. TECHNOLOGY AND EXPORT RESTRICTIONS - The application may be subject to Australian or international technology control or export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the technology used or supported by the application. These laws include restrictions on destinations, end users and end use.
4. SUPPORT SERVICES - Contact Xaana Pty Ltd to determine what support services are available on your contract, Xaana Ark Professional Services provide consulting services that may not be covered in your personal contract and would be out of the scope.
5. ENTIRE AGREEMENT - This agreement, any applicable privacy policy, any additional terms that accompany the application, and the terms for supplements and updates are the entire license agreement between you and Xaana Pty Ltd for the application.
6. LEGAL EFFECT - This agreement describes certain legal rights. You may have other rights under the laws of your state or country. This agreement doesn’t change your rights under the laws of your state or country if the laws of your state or country don’t permit it to do so.
7. DISCLAIMER OF WARRANTY - Subject to applicable law, the application is licensed "as-is", "with all faults" and "as available". You bear all risk of using it. Xaana Pty Ltd Xaana’s affiliates, vendors, agents and suppliers ("Covered Parties"), gives no express warranties, guarantees or conditions in relation to the application. The entire risk as to the quality, safety, comfort and performance of the application is with you. You may have additional consumer rights under your local laws that this agreement can't change. To the extent permitted under your local laws, Covered Parties exclude any implied warranties or conditions, including those of merchantability, fitness for a particular purpose, safety, comfort and non- infringement.
8. LIMITATION ON AND EXCLUSION OF REMEDIES AND DAMAGES - To the extent not prohibited by law, if you have any basis for recovering damages, you can recover from Xaana Pty Ltd only direct damages up to the amount that you paid for or USD$1000, whichever is greater. Subject to applicable law, you will not, and waive any right to, seek to recover any other damages, including consequential, lost profits, special, indirect or incidental damages from Xaana Pty Ltd. This limitation applies to:
a. Anything related to the application or services made available through the application; and
b. Claims for breach of contract, warranty, guarantee or condition; strict liability, negligence or another tort; violation of a statute or regulation; unjust enrichment; or under any other theory; all to the extent permitted by applicable law. It also applies even if:
,(i) This remedy doesn’t fully compensate you for any losses; or
(ii) The software developer knew or should have known about the possibility of the damages.
