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These Xapix Terms of Service (this “Agreement”) is entered into by and between Xapix, Inc. (“Xapix”) and the entity or person placing an order for or accessing the Services (“Customer” or “you”). This Agreement consists of the terms and conditions set forth below, any exhibits or addenda identified below and any ordering documents, online registration, order descriptions or order confirmations referencing this Agreement (“Order Forms”). If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Services (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
Note on Modifications: You acknowledge and agree that Xapix may modify the terms and conditions of this Agreement in accordance with Section 12 (Modifications).
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
Xapix offers a suite of Services for data integration, data governance, stream processing, API management, and monitoring as further described below and in the Documentation.
1.1. Overview. Xapix’s “Studio” acts as a central hub for data, allowing Customer to access, retrieve, manipulate, cache, log, and distribute Data from its selected data sources (“Sources”), and distribute data to chosen endpoints (“Endpoints”), such as Customer’s databases or its accounts with third-party applications or services, for Customer’s further use. The supported Sources and Endpoints are identified in the Documentation. For Sources owned or controlled by Customers (“Customer Properties”), Customer enables the collection of Data by implementing Xapix’s Ambassador or other code (“Xapix Code”) on such Customer Properties. As further described below and in the Documentation, Customer maintains control over which Sources and Endpoints it uses with the Services, as well as the types and content of Data it shares between its Sources and Endpoints.
1.2. Additional Services. If included on an Order Form, Customer may also receive access to additional Xapix services that may be used with Connections. The features of any additional services are further described in the applicable Order Form. For clarity, any additional services are considered part of the Services for purposes of this Agreement.
“Customer Data” means any data that Customer submits to the Services, including data that it collects from Customer Properties or retrieves from other Sources through the Services, including as may be incorporated in any Customer reports or output generated by the Services. Customer Data does not, however, include any Xapix or third-party templates, technology or data.
“Documentation” means the end user technical documentation provided with the Services, as may be modified from time to time.
“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
“Sensitive Personal Information” means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”), or other financial account numbers or credentials; (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”); (iii) social security numbers, driver’s license numbers or other government ID numbers; (iv) any information deemed to be “special categories of data” of an EU resident (as defined in European Union Regulation 2016/679); or (v) other personal or sensitive information subject to regulation or protection under the Gramm-Leach-Bliley Act, Children’s Online Privacy Protection Act or similar foreign or domestic Laws.
“Service(s)” means the specific Xapix proprietary hosted service(s) specified on an Order Form, including any related Xapix dashboards, APIs and Xapix Code.
“Usage Data” means Xapix’s technical logs, account and login data, data and learnings about Customer’s use of the Services (e.g., frequency of logins, volume of Customer Data collected or sent to Endpoint Consumers). For clarity, Usage Data does not include Customer Data.
1.4. Provision of the Services. The Services are provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term”) unless otherwise specified in Section 2 (Service Plans and Beta Releases). Customer shall purchase and Xapix shall provide the Services as specified in the applicable Order Form.
1.6. Use Restrictions. Customer shall not (and shall not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; (c) use the Services to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-official APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Xapix); (e) copy, modify or create any derivative work of the Services or any Documentation; (f) remove or obscure any proprietary or other notices contained in the Services (including any reports or data printed from the Services); or (g) publicly disseminate performance information regarding the Services.
1.7. Storage and Processing of Customer Data. During each Subscription Term, Xapix may store certain Customer Data submitted from Sources to enable various features and functionality of the Services, including for “replay” and re-sending of Customer Data to Endpoints at Customer’s direction. Customer acknowledges that Customer Data transmitted through the Services may be stored and processed by Xapix in the United States or in other countries as approved or directed by Customer (e.g., through Customer’s selection of a regional option through the Services). For clarity, nothing in this Section 1.6 prohibits Xapix from transmitting Customer Data to Customer’s designated Endpoints as part of the Services.
1.8. Data Protection Addendum. The parties agree to comply with the terms of the Data Protection Addendum attached as Exhibit B.
2.1. Services Plans. Xapix makes available the Services through paid plans (“Paid Plans”) and trial plans (“Trial Plans”). Current plans are described at https://www.xapix.io/plans and Customer’s specific plan will be identified in the Order Form presented when Customer registers, orders or pays for the Services. Customer’s permitted scope of use (such as features available, number of calls or messages and other usage limits) depends on the plan that Customer selects and will be specified on the applicable Order Form.
2.2. Paid Plans. Paid Plans are provided for the Subscription Term designated on the applicable Order Form and, unless otherwise specified on the Order Form, each Subscription Term shall automatically renew for the same period as the then-current Subscription Term unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term (e.g., monthly Paid Plans will automatically roll over month-to-month and annual Paid Plans will automatically renew for additional 12-month periods).
2.3. Trial Plans
a. Trial Plans. Under Trial Plans, Customer may use the Services solely to determine whether to purchase a Paid Plan, and the Subscription Term will be thirty (30) days unless otherwise specified in the Order Form. If Customer does not upgrade from a Trial Plan to a Paid Plan at the end of the Subscription Term, then Customer’s access to the Services may be limited or suspended (to be determined at Xapix’s sole discretion) until such time as Customer terminates this Agreement or converts to a Paid Plan.
b. Special Terms. Trial Plans may not include all features or functionality offered as part of Paid Plans, and Xapix reserves the right to add or subtract any features or functionality at any time for such plans. Xapix has the right to suspend or terminate a Trial Plan at any time for any reason.
2.4. Beta Releases. Customer may receive access to a Service (or Service features) as an alpha, beta or early access offering (“Beta Releases”). Xapix identifies all Beta Releases as such and any usage by Customer is optional. Use of a Beta Release is permitted only for Customer’s internal evaluation during the period designated by Xapix (or if not designated, 30 days) and may be subject to additional terms provided by Xapix and agreed by Customer. Xapix may suspend or terminate Customer’s access to Beta Releases at any time for any reason. Beta Releases may be inoperable, incomplete or include features that Xapix may never release, and their features and performance information are Xapix’s Confidential Information. Notwithstanding anything else in this Agreement, Xapix’s liability for Beta Releases will not exceed US$50.
3.1. Data Collection. Subject to this Agreement and as further described in the Documentation, Customer may configure the Customer Data elements to be collected from Sources and shared with different Endpoints. In some instances, as referenced in the Services dashboard and Documentation, enabling a third-party Endpoint involves implementing the third-party provider’s API or code on Customer Properties. As a result, in these cases, certain default data designated by that Endpoints provider may be sent directly to Customer’s accounts with that Endpoints, rather than passing through the Services.
3.2. Rights in Customer Data. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Xapix that (1) Customer will comply with all applicable Laws in its use of the Services (including, if applicable, the California Online Privacy Protection Act, European Union Regulation 2016/679 and similar Laws governing cross-site tracking or automated decision-making) and (2) Customer has provided all disclosures and obtained all necessary rights, consents and permissions to collect, share and use Customer Data as contemplated in this Agreement (including granting Xapix the rights in Section 5.1 and Customer’s building, tracking, using or sharing of any user profiles, traits or audiences), without violation or infringement of (i) any third party intellectual property, publicity, privacy or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreement governing the Customer Properties or Customer’s accounts with third-party Sources or Endpoints. By enabling use of the Services with any Source or Endpoint, Customer authorizes Xapix to access Customer’s accounts with such Source or Endpoint for the purposes described in this Agreement. In addition, in order to provide the Services to Customer and improve Xapix’s integrations with Sources and Endpoints, Xapix may also disclose Customer’s status as a Xapix customer and related technical Services data to the providers of Customer’s Sources and Endpoints.
3.3. No Sensitive Personal Information. Customer specifically agrees not to use the Services to collect, store, process or transmit any Sensitive Personal Information. Customer acknowledges that Xapix is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Services is neither HIPAA nor PCI DSS compliant. Xapix shall have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.
3.4. Indemnification by Customer. Customer shall indemnify, defend and hold harmless Xapix from and against any and all third-party claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any Customer Data or breach or alleged breach by Customer of Sections 3.2 (Rights in Customer Data) or 3.3 (No Sensitive Personal Information). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonably necessary cooperation of Xapix (at Customer’s expense for reasonable out-of-pocket costs).
Xapix agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the Services or Customer Data. However, Xapix shall have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond Xapix’s control.
5.1. Customer Data. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Xapix. Subject to the terms of this Agreement, Customer hereby grants to Xapix a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services to Customer during the Subscription Term.
5.2. Xapix Technology. This is a subscription agreement for access to and use of the Services. Customer agrees that Xapix or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services, all Documentation and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (as defined below). Xapix may generate Usage Data to operate, improve, analyze and support the Services, for benchmarking and reporting and for Xapix’s other lawful business purposes. Except as expressly set forth in this Agreement, no rights in the Services or any Xapix technology are granted to Customer.
5.3. Feedback. Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any Xapix product or service to Xapix (“Feedback”). Xapix may freely use or exploit Feedback in connection with any of its products or services.
6.1. Fees and Payment. All fees for Paid Plans are as set forth in the applicable Order Form and shall be paid by Customer in accordance with the payment terms set forth in the Order Form. If no payment terms are specified in the Order Form, then the following default terms apply: (i) for monthly Subscription Terms, Customer will pay all fees at the end of the month and (ii) for annual Subscription Terms, Customer will pay all fees within thirty (30) days of invoice. Except as expressly set forth in Section 12.1 (Modifications to this Agreement), all fees are non-refundable. Xapix reserves the right to increase the rates specified in the Order Form upon any renewal of a Subscription Term. Any late payments shall be subject to a service charge equal to 2.0% per month of the amount due or the maximum amount allowed by law, whichever is less.
6.2. Taxes. Xapix’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, including for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”) and Customer shall be responsible for payment of all Taxes associated with this Agreement and all Order Forms, except that Xapix is solely responsible for taxes assessable against Xapix based on Xapix’s net income, property, and employees. If any deduction or withholding is required by law, Customer shall notify Xapix and shall pay Xapix any additional amounts necessary to ensure that the net amount that Xapix receives, after any deduction and withholding, equals the amount Xapix would have received if no deduction or withholding had been required.
6.3. Overages. If Customer exceeds its permitted usage in any month of a Subscription Term as specified in an Order Form, Xapix reserves the right to charge overage fees in respect of such excess usage at the applicable overage rates set forth in the Order Form. Customer will pay any overage fees monthly in arrears.
7.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.
7.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees or comply with applicable scope of use restrictions) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). For clarity, nothing in this Section 7.2 limits Xapix’s right to terminate or suspend any Trial Plan as set forth in Section 2.3 (Trial Plans).
7.3. Suspension of Services. Without limiting Xapix’s termination or other rights hereunder, Xapix reserves the right to suspend Customer’s access to the Services (and any related services) in whole or in part, without liability to Customer: (i) if Customer’s account is thirty (30) days or more overdue; (ii) for Customer’s breach of Sections 1.5 (Use Restrictions) or 3 (Customer Obligations); or (iii) to prevent harm to other customers or third parties or to preserve the security, availability or integrity of the Services. When practicable, Xapix will use reasonable efforts to provide Customer with advance notice of the suspension (email sufficing). Unless this Agreement has been terminated, Xapix will cooperate to restore Customer’s access to the Services promptly after Xapix verifies that Customer has resolved the issue requiring suspension.
7.4. Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to the Services (including any and all related Xapix technology), cease distributing any Xapix Code installed on Customer Properties, and delete (or, at Xapix’s request, return) any and all copies of the Documentation, any Xapix passwords or access codes and any other Xapix Confidential Information in its possession. Customer acknowledges that following termination it shall have no further access to any Customer Data in the Services, and that Xapix may delete any such data as may have been stored by Xapix at any time. Upon any expiration or termination of this Agreement, Xapix shall delete all Customer Data within sixty (60) days after receipt of Customer’s written request. Notwithstanding the foregoing, Customer understands that Xapix may retain copies of Customer Data in regular backups or as required by Laws, which will remain subject to the security standards in Section 4 (Security). Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
7.5. Survival. The following Sections shall survive any expiration or termination of this Agreement: 1.5 (Use Restrictions), the disclaimers in Section 2.4 (Beta Releases), 3.4 (Indemnification by Customer), 5 (Ownership), 6.1 (Fees and Payment), 7 (Term and Termination), 8 (Warranty Disclaimer), 9 (Limitation of Remedies and Damages), 10 (Confidential Information), 12 (Modifications) and 13 (General Terms).
THE SERVICES and ALL RELATED SERVICES ARE PROVIDED “AS IS”. NEITHER XAPIX NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. Xapix does not warrant that Customer’s use of THE SERVICEs will be uninterrupted or error-free, nor does Xapix warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss. CUSTOMER UNDERSTANDS THAT CUSTOMER DATA IS SHARED WITH ENDPOINT CONSUMERS AT CUSTOMER’S ELECTION AND XAPIX TAKES NO RESPONSIBILITY FOR ANY ENDPOINTS USE OR PROTECTION OF CUSTOMER DATA ONCE IT HAS BEEN SHARED. CUSTOMER UNDERSTANDS THAT IT IS RESPONSIBLE FOR PUTTING IN PLACE ANY CONTRACTUAL ARRANGEMENTS WITH ENDPOINT CONSUMERS REQUIRED BY LAWS. XAPIX SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF Xapix. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
9.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
9.2. Liability Cap. XAPIX’S (AND ITS SUPPLIERS’) ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO XAPIX DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.
9.3. Excluded Claims. “Excluded Claims” means (a) any claim arising from Customer’s breach of Sections 1.5 (Use Restrictions), 3.2 (Rights in Customer Data) or 3.3 (No Sensitive Personal Information); or (b) any amounts payable to third parties pursuant to Customer’s indemnification obligations under Section 3.4 (Indemnification by Customer).
9.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 9 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Xapix technology, performance information relating to the Services, and the terms and conditions of this Agreement shall be deemed Confidential Information of Xapix without any marking or further designation. Except as expressly authorized herein, the Receiving Party shall (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Xapix, the subcontractors referenced in Section 13.10), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 10 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 10. The Receiving Party’s confidentiality obligations shall not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
Customer agrees to participate in reasonable marketing activities that promote the benefits of the Services to other potential customers and to use of Customer’s name and logo on Xapix’s web site and in Xapix promotional materials. Customer agrees that Xapix may disclose Customer as a customer of Xapix.
12.1. Modifications to this Agreement. Xapix may modify the terms and conditions of this Agreement (which may include changes to Services pricing and plans) from time to time with notice to Customer in accordance with Section 13.5 (Notice).
a. Trial Plans. If Customer has a Trial Plan, any modifications will become effective immediately, and if Customer objects to the modifications, its exclusive remedy is to terminate this Agreement and cease using the Services.
b. Paid Plans. If Customer has a Paid Plan, the following terms apply: Unless a shorter period is specified by Xapix (e.g., due to changes in the law or exigent circumstances), the modifications become effective upon renewal of Customer’s current Subscription Term or entry into a new Order Form. If Xapix specifies that the modifications to the Agreement will take effect prior to Customer’s next renewal or order and Customer notifies Xapix in writing of its objection to the modifications within thirty (30) days after the date of such notice, Xapix (at its option and as Customer’s exclusive remedy) will either: (a) permit Customer to continue under the existing version of this Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will go into effect) or (b) allow Customer to terminate this Agreement and receive a pro-rated refund of any fees Customer has pre-paid for use of the Services for the terminated portion of the applicable Subscription Term. Customer may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the Services, and, in any event, continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.
13.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that Xapix may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Xapix’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 13.1 will be null and void.
13.2. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
13.3. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts.
13.4. Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
13.5. Notice. Any notice or communication required or permitted under this Agreement shall be in writing. If to Xapix, notices must be provided to the address set forth in Section 13.6 (Xapix Contact Information), and shall be deemed to have been received (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. If to Customer, Xapix may provide notice to Customer’s email address on file or through the Services and such notices shall be deemed to have been received upon delivery. Either party may update its address with notice to the other party.
13.6. Xapix Contact Information. Any Customer notices, questions or complaints regarding the Services should be sent to the following address:
2443 Fillmore St. #380-7300, San Francisco, CA 94115 (please use this for mail)
Our official address is Xapix, Inc. 44 Tehama, San Francisco, CA 94105
13.7. Waivers. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
13.8. Entire Agreement; Interpretation. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect. In this Agreement, headings are for convenience only and “including”, “e.g.”, and similar terms will be construed without limitation. Customer acknowledges that the Services are on-line, subscription-based products, and that in order to provide improved customer experience Xapix may make changes to the Services, and Xapix will update the applicable Documentation accordingly.
13.9. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
13.10. Subcontractors. Xapix may use the services of subcontractors and permit them to exercise the rights granted to Xapix in order to provide the Services under this Agreement. These subcontractors may include, for example, Xapix’s hosting, infrastructure and CDN providers. Xapix remains responsible for compliance of any such subcontractor with the terms of this Agreement and the overall performance of the Services as required under this Agreement.
13.11. Subpoenas. Nothing in this Agreement prevents Xapix from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but Xapix shall use commercially reasonable efforts to notify Customer where permitted to do so.
13.12. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
13.13. Export Control. In its use of the Services, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer shall not (and shall not permit any of its users to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.
13.14. Government End-Users. Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services were developed fully at private expense. All other use is prohibited.
Xapix considers protection of Customer Data a top priority. As further described in this Xapix Information Security Policy, Xapix uses commercially reasonable organizational and technical measures designed to prevent unauthorized access, use, alteration or disclosure of Customer Data stored on systems under Xapix’s control. Xapix maintains these security measures in accordance with ISO 27001, 27017 and 27018.
1. Customer Data and Management. Xapix limits its personnel’s access to Customer Data as follows:
1.1. Requires unique user access authorization through secure logins and passwords;
1.2. Limits the Customer Data available to Xapix personnel on a “need to know” basis;
1.3. Restricts access to Xapix’s production environment by Xapix personnel on the basis of business need;
1.4. Encrypts user security credentials for production access; and
1.5. Prohibits Xapix personnel from storing Customer Data on electronic portable storage devices such as computer laptops, portable drives and other similar devices.
1.6. Xapix logically separates each of its customers’ data and maintains measures designed to prevent Customer Data from being exposed to or accessed by other customers.
2. Data Encryption. Xapix provides industry-standard encryption for Customer Data as follows:
2.1. Implements encryption in transport and at rest;
2.2. Uses strong encryption methodologies to protect Customer Data, including AES 256-bit encryption for Customer Data stored in Xapix’s production environment; and
2.3. Encrypts all Customer Data located in cloud storage while at rest.
3. Network Security, Physical Security and Environmental Controls
3.1. Xapix uses firewalls, network access controls and other techniques designed to prevent unauthorized access to systems processing Customer Data.
3.2. Xapix maintains measures designed to assess, test and apply security patches to all relevant systems and applications used to provide the Services.
3.3. Xapix monitors privileged access to applications that process Customer Data, including cloud services.
3.4. The Services operate on Amazon Web Services (“AWS”) and are protected by the security and environmental controls of Amazon, respectively. Detailed information about AWS security is available at https://aws.amazon.com/security/ and http://aws.amazon.com/security/sharing-the-security-responsibility/. For AWS SOC Reports, please see https://aws.amazon.com/compliance/soc-faqs/..
3.5. Customer Data stored within AWS is encrypted at all times. AWS does not have access to unencrypted Customer Data.
4. Independent Security Assessments. Xapix periodically assesses the security of its systems and the Services as follows:
4.1. Annual detailed security and vulnerability assessments of the Services conducted by independent third-party security experts that include a code analysis and a comprehensive security review. Xapix shall attest to Customer the date of the most recent security and vulnerability assessment at Customer’s reasonable request.
4.2. Xapix follows security guidelines in accordance with ISO 27001.
4.3. Regular vulnerability penetration testing of Xapix systems and applications to test for exploits including, but not limited to, XSS, SQL injection, access controls, and CSRF.
5. Incident Response.
If Xapix becomes aware of unauthorized access or disclosure of Customer Data under its control (a “Breach”), Xapix will:
5.1. Take reasonable measures to mitigate the harmful effects of the Breach and prevent further unauthorized access or disclosure.
5.2. Upon confirmation of the Breach, notify Customer in writing of the Breach without undue delay. Notwithstanding the foregoing, Xapix is not required to make such notice to the extent prohibited by Laws, and Xapix may delay such notice as requested by law enforcement and/or in light of Xapix’s legitimate needs to investigate or remediate the matter before providing notice.
5.3. Each notice of a Breach will include:
5.3.1. The extent to which Customer Data has been, or is reasonably believed to have been, used, accessed, acquired or disclosed during the Breach;
5.3.2. A description of what happened, including the date of the Breach and the date of discovery of the Breach, if known;
5.3.3. The scope of the Breach, to the extent known; and
5.3.4. A description of Xapix’s response to the Breach, including steps Xapix has taken to mitigate the harm caused by the Breach.
6. Business Continuity Management
6.1. Xapix maintains an appropriate business continuity and disaster recovery plan.
6.2. Xapix maintains processes to ensure failover redundancy with its systems, networks and data storage.
7. Personnel Management
7.1. Xapix performs employment verification, including proof of identity validation and criminal background checks for all new hires, including contract employees, in accordance with applicable law.
7.2. Xapix provides training for its personnel who are involved in the processing of the Customer Data to ensure they do not collect, process or use Customer Data without authorization and that they keep Customer Data confidential, including following the termination of any role involving the Customer Data.
7.3. Xapix conducts routine and random monitoring of employee systems activity.
7.4. Upon employee termination, whether voluntary or involuntary, Xapix immediately disables all access to Xapix systems, including Xapix’s physical facilities.
This Data Protection Addendum (“Addendum”) is entered into by and between Xapix, Inc., a Delaware corporation (“Xapix”), and Customer effective as of the later date of each party’s signature below. This Addendum applies to Xapix’s Processing of Customer Personal Data under the agreement executed between Xapix and Customer for Xapix’s provision of the Services (the “Agreement”).
For purposes of this Addendum, the terms below have the meanings set forth below. Capitalized terms that are used but not defined in this Addendum have the meanings given in the Agreement.
“Affiliate” means any entity that directly or indirectly controls, is controlled by or is under common control with the subject entity, where “control” refers to the power to direct or cause the direction of the subject entity, whether through ownership of voting securities, by contract or otherwise.
“CCPA” means the California Consumer Privacy Act of 2018, as amended from time to time.
“Customer Personal Data” means any Customer Data (as defined in the Agreement) that is Personal Data. For purposes of this Addendum, Customer Personal Data does not include personal information of employees or other representatives of Customer with whom Xapix has a direct business relationship.
“Data Protection Laws” means, with respect to a party, all privacy, data protection and information security-related laws and regulations applicable to such party’s Processing of Personal Data, including, where applicable, EU Data Protection Law and the CCPA.
“Data Subject” means the identified or identifiable natural person who is the subject of Personal Data.
“EU Data Protection Law” means European Union Regulation 2016/679 (“GDPR”) and any national legislation implementing GDPR, as amended from time to time.
“Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Personal Data” means “personal data”, “personal information”, “personally identifiable information” or similar information defined in and governed by Data Protection Laws.
“Security Incident” means any confirmed unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Data being Processed by Xapix. Security Incidents do not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks or other network attacks on firewalls or networked systems.
“Subprocessor” means any third party authorized by Xapix or its Affiliates to Process any Customer Personal Data.
“Third Party Subprocessor” means any Subprocessor who is not an Affiliate of Xapix.
3. General; Termination
This Addendum forms part of the Agreement and except as expressly set forth in this Addendum, the Agreement remains unchanged and in full force and effect. If there is any conflict between this Addendum and the Agreement, this Addendum shall govern.
Any liabilities arising under this Addendum are subject to the limitations of liability in the Agreement.
This Addendum will be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by applicable Data Protection Laws.
This Addendum will automatically terminate upon expiration or termination of the Agreement.
4. Scope of this Addendum
This Addendum applies to Xapix’s Processing of Customer Personal Data under the Agreement, except that Annex A (EU Annex) to this Addendum applies only to such Processing of Customer Personal Data governed by EU Data Protection Law and Annex B (California Annex) to this Addendum applies only to such Processing of Customer Personal Data governed by the CCPA.
5. Role and Scope of the Processing
Xapix will Process Customer Data only in accordance with Customer’s instructions. By entering into the Agreement, Customer instructs Xapix to Process Customer Data to provide the Services and pursuant to any other written instructions given by Customer and acknowledged in writing by Xapix as constituting instructions for purposes of this Addendum. Customer acknowledges and agrees that such instruction authorizes Xapix to Process Customer Data (a) to perform its obligations and exercise its rights under the Agreement; and (b) to perform its legal obligations and to establish, exercise or defend legal claims in respect of the Agreement.
For clarity, nothing in this Addendum limits Xapix from transmitting Customer Data to and among Sources and Endpoints as directed by Customer through the Services. The parties agree that neither Sources nor Endpoints are Subprocessors of Xapix and that, between the parties, Customer is solely responsible for the Processing of Customer Personal Data by, and other acts and omissions of, Sources and Endpoint Consumers or parties associated therewith.
Customer specifically authorizes Xapix to use its Affiliates as Subprocessors, and generally authorizes Xapix to engage Third Party Subprocessors to Process Customer Personal Data. Xapix shall enter into a written agreement with each Subprocessor, imposing data protection obligations substantially similar to those set out in this Addendum; and remains liable for compliance with the obligations of this Addendum and for any acts or omissions of the Subprocessor that cause Xapix to breach any of its obligations under this Addendum.
When any new Third Party Subprocessor is engaged, Xapix will notify Customer of the engagement, which notice may be given by updating the Subprocessor Page and via a message through Customer’s Xapix Workspace. Xapix will give such notice at least ten (10) calendar days before the new Subprocessor Processes any Customer Personal Data, except that if Xapix reasonably believes engaging a new Subprocessor on an expedited basis is necessary to protect the confidentiality, integrity or availability of the Customer Personal Data or avoid material disruption to the Services, Xapix will give such notice as soon as reasonably practicable. If, within five (5) calendar days after such notice, Customer notifies Xapix in writing that Customer objects to Xapix’s appointment of a new Third Party Subprocessor based on reasonable data protection concerns, the parties will discuss such concerns in good faith and whether they can be resolved. If the parties are not able to mutually agree to a resolution of such concerns, Customer, as its sole and exclusive remedy, may terminate the Agreement for convenience.
Xapix shall implement and maintain technical and organizational security measures designed to protect Customer Personal Data from Security Incidents and to preserve the security and confidentiality of the Customer Personal Data, in accordance with Xapix’s security standards referenced in the Agreement (“Security Measures”).
Customer is responsible for reviewing the information made available by Xapix relating to data security and making an independent determination as to whether the Services meet Customer’s requirements and legal obligations under Data Protection Laws. Customer acknowledges that the Security Measures may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease Xapix’s obligations as compared to those reflected in such terms as of the Effective Date).
Upon becoming aware of a confirmed Security Incident, Xapix shall notify Customer without undue delay unless prohibited by applicable law. A delay in giving such notice requested by law enforcement and/or in light of Xapix’s legitimate needs to investigate or remediate the matter before providing notice shall not constitute an undue delay. Such notices will describe, to the extent possible, details of the Security Incident, including steps taken to mitigate the potential risks and steps Xapix recommends Customer take to address the Security Incident. Without prejudice to Xapix’s obligations under this Section 7.c., Customer is solely responsible for complying with Security Incident notification laws applicable to Customer and fulfilling any third party notification obligations related to any Security Incidents. Xapix’s notification of or response to a Security Incident under this Section 7.c. will not be construed as an acknowledgement by Xapix of any fault or liability with respect to the Security Incident.
Customer agrees that, without limitation of Xapix’s obligations under this Section 7, Customer is solely responsible for its use of the Services, including (a) making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Customer Data; (b) securing the account authentication credentials, systems and devices Customer uses to access the Services; (c) securing Customer’s systems and devices that it uses with the Services; and (d) maintaining its own backups of Customer Data.
8. Data Subject Requests
Xapix shall upon Customer’s request (and at Customer’s expense) provide Customer with such assistance as it may reasonably require to comply with its obligations under Data Protection Laws to respond to requests from individuals to exercise their rights under Data Protection Laws (e.g., rights of data access, rectification, erasure, restriction, portability and objection) in cases where Customer cannot reasonably fulfill such requests independently by using the self-service functionality of the Services. If Xapix receives a request from a Data Subject in relation to their Customer Personal Data, Xapix will advise the Data Subject to submit their request to Customer, and Customer will be responsible for responding to any such request.
9. Return or Deletion of Data
Xapix shall, within sixty (60) days after request by Customer following the termination or expiration of the Agreement, delete all of the Customer Personal Data from Xapix’s systems.
Notwithstanding the foregoing, Customer understands that Xapix may retain Customer Personal Data if required by law, which data will remain subject to the requirements of this Addendum.
Definitions. For purposes of this Annex A, the terms “controller”, “processor” and “supervisory authority” have the meanings given in EU Data Protection Law; “Standard Contractual Clauses” means the Standard Contractual Clauses for Processors as approved by the European Commission under Decision 2010/87/EU in the form made accessible in Customer’s Xapix Workspace; and “data importer” and “data exporter” have the meanings given in the Standard Contractual Clauses.
Subject Matter and Details of Processing. The parties acknowledge and agree that (a) the subject matter of the Processing under the Agreement is Xapix’s provision of the Services; (b) the duration of the Processing is from Xapix’s receipt of Customer Personal Data until deletion of all Customer Personal Data by Xapix in accordance with the Agreement; (c) the nature and purpose of the Processing is to provide the Services; (d) the Data Subjects to whom the Processing pertains are Customer’s customers, end users or other individuals to whom Customer Personal Data pertains; and (e) the categories of Customer Personal Data are such categories as Customer is authorized to ingest into the Services under the Agreement.
Xapix’s Compliance with Instructions. Xapix will only Process Customer Personal Data in accordance with Customer’s instructions in this Addendum unless EU Data Protection Law requires otherwise, in which case Xapix will notify Customer (unless that law prohibits Xapix from doing so).
Xapix Security Measures, Controls and Assistance
Xapix will (taking into account the nature of the Processing of Customer Personal Data and the information available to Xapix) provide Customer with reasonable assistance necessary for Customer to comply with its obligations in respect of Customer Personal Data under EU Data Protection Law, including Articles 32 to 34 (inclusive) of the GDPR, by (a) implementing and maintaining the Security Measures; (b) complying with the terms of Section 7 of this Addendum; and (c) complying with this Annex A.
Xapix will grant access to Customer Personal Data only to personnel who need such access for the scope of their job duties, and are subject to appropriate confidentiality obligations. Should an employee of a Customer seek to exercise their rights under EU Data Protection Laws (e.g., rights of data access, rectification, erasure, restriction, portability and objection) in respect of any Usage Data that constitutes Personal Data then the Customer undertakes to inform Xapix without delay and instruct their employee to contact Xapix directly via email@example.com or such other email address as directed at the time.
Audits and Reviews of Compliance. To the extent applicable Data Protection Laws include a right for Customer to audit Xapix’s Processing of Customer Personal Data, Customer will exercise such audit right, and Xapix will fulfill its corresponding obligations, as follows:
Not more than once per calendar year and at Customer’s expense, Customer may audit Xapix’s Processing of Customer Personal Data for compliance with its obligations under this Addendum by submitting reasonable requests for information, including security and audit questionnaires. Xapix will provide written responses to the extent the requested information is necessary to confirm Xapix’s compliance with this Addendum. However, if the requested information is addressed in a Third Party Report issued within the 12-month period prior to Customer’s request and Xapix confirms there have been no material changes in the interim relevant to Customer’s request, Customer agrees to accept such Third Party Report in lieu of a written response. Any information provided by Xapix under this Section 2.b. constitutes Xapix’s Confidential Information under the Agreement.
If a third party is to conduct an audit under this Section 2.b., Xapix may object to the auditor if the auditor is, in Xapix’s reasonable opinion, not independent, a competitor of Xapix or otherwise unqualified. Such objection by Xapix will require Customer to appoint another auditor or conduct the audit itself.
Customer will promptly notify Xapix of any non-compliance discovered during the course of an audit and provide Xapix any audit reports generated in connection with any audit under this Section 2.b., unless prohibited by EU Data Protection Law or otherwise instructed by a supervisory authority. Customer may use the audit reports only for the purposes of meeting Customer’s regulatory audit requirements and confirming that Xapix’s Processing of Customer Personal Data complies with this Addendum.
Customer shall reimburse Xapix for any time expended by Xapix or its Subprocessors in connection with any audits under this Section 2.b. at Xapix’s then-current professional services rates, which shall be made available to Customer upon request. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit. Nothing in this Addendum shall be construed to require Xapix to furnish more information about its Third Party Subprocessors in connection with such audits than such Third Party Subprocessors make generally available to their customers. Nothing in this Section 2.b. shall require Xapix to breach any duties of confidentiality.
Xapix may (taking into account the nature of the Processing and the information available to Xapix) reasonably assist Customer in complying with Customer’s obligations under Articles 35 and 36 of the GDPR, by (a) making available documentation describing relevant aspects of Xapix’s information security program and the security measures applied in connection therewith; and (b) providing the other information contained in the Agreement, including this Addendum.
Data Processing Facilities. Xapix may, subject to Section 4.b., store and Process Customer Personal Data in the United States or anywhere Xapix or its Subprocessors maintain facilities. Subject to Xapix’s obligations in this Section 4, Customer is responsible for ensuring that its use of the Services complies with any cross-border data transfer restrictions of EU Data Protection Law.
Privacy Shield. To the extent that Xapix Processes any Customer Personal Data of individuals in the EU or Switzerland in the United States, then Xapix shall protect such Customer Personal Data in accordance with the Privacy Shield Principles and Supplemental Principles of the EU-U.S. and Swiss Privacy Shield Frameworks (“Privacy Shield”). If Xapix is unable to comply with this requirement, Xapix shall inform Customer.
Standard Contractual Clauses. If Customer is established in the EU and transfers Customer Personal Data out of the EU to Xapix in a country not deemed by the European Commission to have adequate data protection, and the Privacy Shield ceases to be a basis by which Customer may lawfully make such transfer to Xapix under Chapter V of the GDPR, and no lawful alternative basis for such transfer applies, such transfer will be governed by the Standard Contractual Clauses, the terms of which are hereby incorporated into this DPA. In furtherance of the foregoing, the parties agree that:
for purposes of the Standard Contractual Clauses, (a) Customer will act as the data exporter and (b) Xapix will act as the data importer;
for purposes of Appendix 1 to the Standard Contractual Clauses, the Data Subjects, categories of data, and the processing operations shall be as set out in Section 1.b. to this Annex A;
for purposes of Appendix 2 to the Standard Contractual Clauses, the technical and organizational measures shall be the Security Measures;
upon data exporter’s request under the Standard Contractual Clauses, data importer will provide the copies of the Subprocessor agreements that must be sent by the data importer to the data exporter pursuant to Clause 5(j) of the Standard Contractual Clauses, and data importer may remove or redact all commercial information or clauses unrelated to the Standard Contractual Clauses or their equivalent beforehand;
the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be performed in accordance with Section 2.b. of this Annex A;
Customer’s authorizations in Section 6 of this Addendum (Subprocessing) will constitute Customer’s prior written consent to the subcontracting by Xapix of the Processing of Customer Personal Data if such consent is required under Clause 5(h) of the Standard Contractual Clauses;
certification of deletion of Customer Personal Data as described in Clause 12(1) of the Standard Contractual Clauses shall be provided only upon Customer’s request; and
the Standard Contractual Clauses shall automatically terminate once the Customer Personal Data transfer governed thereby becomes lawful under Chapter V of the GDPR in the absence of such Standard Contractual Clauses on any other basis.
For purposes of this Annex B, the terms “business”, “commercial purpose”, “service provider”, “sell” and “personal information” have the meanings given in the CCPA.
With respect to Customer Personal Data, Xapix is a service provider under the CCPA.
Xapix will not (a) sell Customer Personal Data; (b) retain, use or disclose any Customer Personal Data for any purpose other than for the specific purpose of providing the Services, including retaining, using or disclosing the Customer Personal Data for a commercial purpose other than providing the Services; or (c) retain, use or disclose the Customer Personal Data outside of the direct business relationship between Xapix and Customer.
The parties acknowledge and agree that the Processing of Customer Personal Data authorized by Customer’s instructions described in Section 5 of this Addendum is integral to and encompassed by Xapix’s provision of the Services and the direct business relationship between the parties.
Notwithstanding anything in the Agreement or any Order Form entered in connection therewith, the parties acknowledge and agree that Xapix’s access to Customer Personal Data does not constitute part of the consideration exchanged by the parties in respect of the Agreement.