Terms and conditions
This terms and conditions notice was last updated on: 18th February 2020
1. What this agreement is about
1.1.If you are a user of Xinowa products (“Xinowa”), this agreement describes how you may use Xinowa and is made up of these terms and conditions and our Privacy Notice.
1.2. If you are a partner and have subscribed to the Xinowa Partner Program terms and conditions (“Xinowa Partner”), this agreement describes how you and your own clients may use Xinowa and this agreement applies in addition to the terms and conditions of the Xinowa Partner Program as applicable to and accepted by you. If there is any difference between this agreement and the Xinowa Partner Program terms and conditions, the terms of this agreement will take precedence in relation to your operation and use of Xinowa.
1.3. In this agreement, where we say “Xinowa”, we mean Products and Services offered by Corient Business Solutions Ltd under umbrella of Xinowa which are listed on our website www.xinowa.com, which consist of extracting data from Xero Accounts and making it available on your Whatsapp number based on demand or push notification which you can choose from time to time. Xinowa primarily offers distinct types of subscriptions: pay as you go (“PAYG") subscriptions, tiered plan (“Partner") subscriptions and additional (“Additional") subscriptions for add-on services, such as White labelling where appropriate.
1.4. In this agreement
1.4.2 “Customer Data” shall mean the data, information or material retrieved with your permission by Xinowa from integration partners (such as Xero) and may include data relating to you or your clients’ customers and/or suppliers.
1.4.3 “Customer Personal Data” has the meaning set out in clause 10.1.
1.4.4 “Data Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data; where the purposes and means of such Processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law.
1.4.5 “Data Processor” means the natural or legal person, public authority, agency or other body which Processes Personal Data on behalf of the Data Controller.
1.4.6 “Data Protection Laws” means all applicable EU laws and regulations governing the use or processing of Personal Data, including (where applicable) the European Union Directive 95/46/EC (until and including 24 May 2018), the GDPR (from and including 25 May 2018) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time.
1.4.7 “GDPR” means EU General Data Protection Regulation 2016/679.
1.4.8 “Personal Data” means any information relating to an identified or identifiable natural person (“Data Subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
1.4.9 “Privacy Notice” means our privacy notice posted on www.Xinowa.com (or such other URL as we may notify to you) and which may be amended by Corient Business Solutions Ltd from time to time.
1.4.10 “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, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction and “Process”, “Processed” and “Processes” shall be construed accordingly.
1.4.11 “Supervisory Authority” means an independent public authority which is established under applicable Member State law and which concerns itself with the Processing of Personal Data.
1.4.12 “Organisation” means a logically separated area in Xinowa Platform containing data belonging to a single business. Users may have access to more than one Organisation should they be using Xinowa to manage the affairs of more than one business.
1.4.13 “Subscriber User” means any user of the Xinowa Platform who is considered by us to be responsible for paying the bill for any Pro features in an Organisation.
1.5. We may change the terms and conditions of this agreement and our Privacy Notice at any time. We will make reasonable efforts to communicate any changes to you via a notification in Xinowa or by sending an email to you, but it is up to you to ensure that you regularly check, read, understand and agree to the most recent version of this agreement and our Privacy Notice on our website at www.Xinowa.com as you will be deemed to have accepted all changes if you continue to use Xinowa.
2. Who this agreement is between
2.1. This agreement is between: you, the person or organisation authorised to use Xinowa; and us, Corient Business Solutions Limited, a limited company registered in England and Wales (registration number 7880941) with office at The Techno Centre, Puma Way, Coventry, CV 1 2TT.
2.2. By entering into this agreement, we both agree to be bound by and keep to it.
3. How you accept this agreement, and when this agreement starts
3.1. You accept every term and condition of this agreement, and this agreement starts from the earliest date you tick a box or click on a button (or something similar) when you are asked to confirm that you accept this agreement during sign up to the service, or when you use Xinowa (or any part of it). If you accept this agreement and pay the relevant subscription fees (where applicable), we give you the right to use Xinowa in the way described in this agreement. You must not use Xinowa in any other way.
3.2. This agreement will continue until terminated in accordance with clause 15 or any other clause in this agreement which by its express provisions allows a party to terminate this agreement.
3.3. If you don't accept this agreement, you should contact us or your Xinowa Partner immediately (where you have set up your Xinowa account through your Xinowa Partner and your Xinowa Partner administers it for you) and you should not use Xinowa.
4. Registering with Xinowa
4.1. On registering with Xinowa you will provide us with an email address, phone number and password (the “sign-in information”) or you will authenticate through Single Sign On (“SSO”) via one of our authentication partners. You will be sent an activation email to this email address during registration and you will need to activate your account within 24 hours of receiving the activation email. Failure to activate your account may lead to an inability to access any data which may have been entered into that account.
4.2. Xinowa will use the personal data it obtains from the relevant SSO authentication partner to manage your Xinowa account and shall not be responsible for loss of any data from your Xinowa account or unauthorised access to your Xinowa account which arises as a result of failures in the security of the relevant SSO authentication partner.
4.3. Once you have set up your Xinowa account via an SSO authentication partner, you will be able to change your personal details by following the instructions available within the settings area of Xinowa.
5. Setting up a Xinowa account directly
5.1. If you have signed up for Xinowa, you may integrate with third parties and use any Free version of the product suite indefinitely. Adding an integration with a third party for a Xinowa product effectively activates that product. The date on which you provide billing details to allow us to charge you for any paid component will become your “Billing Date” and you will be invoiced immediately and will be charged the current list price in advance. Your subscription will automatically renew on your Billing Date.
5.2. If at any time during your subscription you want to include additional Xinowa components within your subscription you must pay the applicable fees for each additional Xinowa component and your subscription fee will be prorated from the date access to the additional Xinowa component is made available to you until your next Billing Date. If you wish to reduce access to certain Xinowa components, you may do so from your next Billing Date when your fees will be calculated to take account of your reduced access to the Xinowa components.
5.4. We may increase the subscription fee for Xinowa at any time by giving you not less than 30 days’ written notice and such an increase will take effect from your next payment date after this notice period has ended.
5.5. By using the functionality within Xinowa you can invite others to register with Xinowa and grant them access to your Xinowa workspace. If you choose to do this, we cannot accept any liability for the actions of those you invite including, without limitation, their access to your Xinowa workspace, the data contained within it and the data contained within any third party service with which your Xinowa account integrates.
6. Setting up a Xinowa account through a Xinowa Partner
6.1. If your Xinowa Partner sets up your Xinowa account for you, you will be invited to join their workspace to view your organisation’s data. If you pay your Xinowa Partner and not us (until such time that we, and/or your Xinowa Partner, notifies you to pay us directly) for your use of some or all of the Xinowa components to which you have access, your Xinowa Partner will manage your access rights to these Xinowa components.
6.2. You are responsible for working with your Xinowa Partner to set and manage access rights and levels of access that your Xinowa Partner has over your Xinowa account as agreed between you and your Xinowa Partner. You acknowledge that we have no control over such access rights and therefore we accept no liability for any loss or damage or other liability that you suffer as a result of any act, omission or failure of your Xinowa Partner.
7. Your rights to use Xinowa and your obligations
7.1. You must only use Xinowa for your internal business purposes and only to sync your own business information into Xinowa, unless you are a Xinowa Partner. Xinowa Partners may sync their clients’ data into Xinowa for the purpose of analysing and gaining insights from this data on behalf of such clients (where the client permits this) and for making the Xinowa service available to them.
7.2. All rights of ownership of the information you or a Xinowa Partner syncs into Xinowa remain yours but your access to this information is dependent upon you complying with these terms and conditions and your applicable subscription fee being paid in full. We follow good industry practice to prevent data loss; however, you must keep copies of any information inputted into Xinowa (or generated by it) as we cannot guarantee that your information will not be lost or damaged.
7.3. You cannot transfer your Xinowa subscription (or your use of Xinowa for demonstration and evaluation purposes or any free trial, promotion or activation code) to any other person or organisation. For example, you cannot sell it if you no longer want to use Xinowa, or if you become insolvent an insolvency practitioner may not pass on your Xinowa subscription (including your sign-in information) as part of your business’s assets. Further information on this is set out in clause 17.4.
7.4. You must comply with all applicable laws and legislation in respect of your use of Xinowa. When sharing data via Xinowa, you must ensure that the content of any data does not and will not result in any injury, damage or harm to us or any third party (including, without limitation, defamation or breach of confidentiality) and the content does not contain anything which is unlawful, obscene, indecent or immoral or promotes illegal or unlawful activities. You must not use the Xinowa services to post, share or disseminate any material unrelated to the use of Xinowa, including (but not limited to): offers of goods or services for sale, unsolicited commercial email, files that may damage any other person’s computing devices or software or material in violation of any law (including material that is protected by copyright or trade secrets which you do not have the right to use). When you use Xinowa to communicate or share any information, you represent that you are permitted to make such communication and share such information. We are under no obligation to ensure that communications sent by users of Xinowa are legitimate or that they are related only to the use of Xinowa services.
7.5. You acknowledge that we are not your accountant, we do not provide accountancy services and Xinowa should not be used as a substitute for professional accountancy advice.
7.6. Some features of Xinowa rely on integration with third party products or services or provide access to technology, information or services not provided by us (“Additional Services”). You may purchase or subscribe to third party complementary products, software or services that integrate or work with Xinowa and it is your responsibility to decide whether or not to use these Additional Services. If you choose to do so you must agree to the separate applicable terms and conditions presented to you by the third party for those Additional Services. If there is a conflict between any of the terms of this agreement and the Additional Services terms, the Additional Services terms will apply in relation to your use of the Additional Service in question. Except where clause 15.5 applies, we are not responsible for any issue with any third-party technology, information and / or services and will not be liable for those issues. We may withdraw access to such third party technology, information or services via Xinowa at any time and without notifying you.
7.7. You acknowledge that, where relevant, the third party provider of the Additional Services may collect from you the subscription fees due for Xinowa. In such circumstances, you agree to pay the applicable subscription fee (plus any VAT or applicable sales tax) directly to the third party provider via the payment method and subject to the payment terms specified during registration or which may otherwise be notified to you from time to time, in default of which the payment terms set out in this agreement shall apply.
7.8. You agree that if you receive Xinowa at a special or discounted price you will only be able to receive Xinowa at that special or discounted price if your subscription fees for Xinowa are paid continuously. Any delay or other failure in payment which results in a suspension, termination or other deactivation of your account may result in your subscription fee being reactivated at our then-current list price which will be higher than the special or discounted price you previously paid.
7.9 You may invite anyone else to use or benefit from Xinowa and you may use Xinowa with someone else’s information to provide an advisory service to them. Should they register as a user of Xinowa, their use of Xinowa will be subject to these terms and conditions and they will be considered by us to have rights equal to all other users of Xinowa.
8. Special Terms for Xinowa Platform
If you subscribe to Xinowa Platform (including any applicable free trial period), the following terms and conditions shall apply to you.
8.1 Setting up Xinowa Platform
8.1.1 Depending on the Xinowa Platform product you have chosen, we may offer both a Freemium version and a Pro version. The Freemium version will be free to use forever irrespective of how many integrations you may have.
8.1.2 Depending on the product, we may provide access to all Pro features for a short period of time from when you first start using it as a Freemium user. Such access to Pro features is provided at our discretion and we reserve the right to change the period of time such access is granted or to withdraw it altogether without notice.
8.2 Accessing Pro features of Xinowa Platform
8.2.1 The Pro features of Xinowa Platform are paid-for features. Should you choose the Pro version of a Xinowa Platform product, you may choose to be billed either monthly or annually per integration. The subscription fee is payable to us in advance. Should additional integrations be subsequently be added to that product or should you choose to subscribe to a Pro version of another Xinowa Platform product, you will be charged immediately in advance for any additional integrations and the charge will be prorated to your next billing date.
8.2.2 You may grant users permission to add integrations to Xinowa Platform products within Organisations they have access to and you may grant them permission to activate Pro features in these products. The role you give each such user will determine whether newly activated Pro integrations will be paid for by you or, should they not have permission to affect your bill, by them.
8.2.3 It is possible for Pro integrations used by different Xinowa Platform products in the same Organisation to be paid for by different users. As a Xinowa Partner you may use this capability to set up Organisations in Xinowa Platform on behalf of your clients and remain flexible on which Pro integrations you pay us for and which integrations your clients themselves pay us for.
8.3 Downgrading from Pro features in Xinowa Platform
8.3.1 Should you choose to downgrade from the Pro version of a Xinowa Platform product to the Freemium version and you only have access to one Organisation in Xinowa Platform, the downgrade will be scheduled automatically to take place on your next billing date and you will have access to the Pro features until that date. A refund will not be available.
9. Restrictions on your use of Xinowa
9.1 The following list gives examples of things you must not do with Xinowa:
9.1.1 You must not introduce any viruses or harmful technology to Xinowa;
9.1.2 You must not try to gain unauthorised access to Xinowa or any underlying technology;
9.1.3 You must not try to affect the availability of Xinowa to our users (sometimes called ‘a denial-of-service attack’);
9.1.4 You may not use Xinowa to help you develop your own software. For example, you must not use or copy all or any part of Xinowa’s graphical user interface, operating logic or code of any kind for it to be part of any software or other product or technology, unless that use or copying is allowed by law.
9.1.5 You must not use Xinowa’s integration with messaging platforms to send unsolicited messages that may be considered spam.
9.2 It is impossible to provide an exhaustive list of exactly what constitutes acceptable and unacceptable use of Xinowa. In general, we will not tolerate any use which damages or is likely to damage our business or reputation, the availability or integrity of Xinowa or which causes us or threatens to cause us to incur any legal, tax or regulatory liability. We will also not tolerate any conduct by you which is (or we reasonably deem to be) offensive, malicious, threatening, intimidating or otherwise unacceptable behaviour (“Unacceptable Conduct”). If we consider you have participated in any Unacceptable Conduct, we may end this agreement by giving you 7 days’ notice in writing. In these circumstances you will not be entitled to a refund of any amounts you have paid to us in advance for your subscription period.
10. Our promises relating to Xinowa
10.1 Whilst we aim to provide uninterrupted use of Xinowa, unfortunately we can’t guarantee this. For example, some interruptions may be caused by reasons outside our control and in such circumstances, we will not be responsible for any failure to perform our obligations in this agreement, and we will be excused from that failure for so long as those circumstances continue.
10.2 In cases where Xinowa includes information supplied by third parties, we do not guarantee or verify the accuracy or completeness of that information.
10.3 We do not promise:
10.3.1 that Xinowa will be compatible with your web browser or computer set-up;
10.3.2 that Xinowa will meet your own needs;
10.3.3 that you will be able to use Xinowa in any particular way;
10.3.4 that you will get particular outputs from Xinowa;
10.3.5 that the standard of the results you get from using Xinowa will meet your expectations; or
10.3.6 that, where you use our technical support services, we will be able to fix your problem or remedy your issue.
The fact that you may have told our representative about how you intend to use Xinowa will not affect this clause as Xinowa has been developed for many different types of users, and you are responsible for setting up and accessing Xinowa so that you can use it in the way you need, and as best suits your circumstances.
10.4 You are solely responsible for obtaining and maintaining your internet and network connections and any associated problems are your responsibility.
10.5 We will take reasonable steps to make sure that Xinowa is free from viruses but we cannot guarantee this. We recommend that you use your own virus-protection software as we will not be responsible for any loss or damage caused by any viruses or other harmful technology that may infect your computer systems, data or other material owned by you.
10.6 You are responsible for controlling who can access your Xinowa account. We advise that you don’t allow anyone else to use your sign in information and that you change your password at regular intervals
10.7 From time to time we may temporarily suspend access to Xinowa, for maintenance, repairs or other reasons. We will try to do this outside normal business hours and provide advance notice but this might not always be possible. If we become aware that there is an issue with Xinowa which affects you we may contact you to discuss the steps required to remedy that issue. You agree to provide all reasonable assistance in helping us remedy that issue.
10.8 We promise that we will use our reasonable skill and care to provide any service to you under this agreement.
10.9 This agreement describes all of our promises relating to Xinowa. Unless this agreement says otherwise, we are not bound by any other contract terms, warranties or other type of promise. If, under any law, a particular term, warranty or other type of promise relating to Xinowa would automatically be included in this agreement, we will only be bound by that term, warranty or promise to the extent prescribed by law.
11. Data Protection
11.1 For the purposes of this agreement, the parties agree that you are the Data Controller in respect of Personal Data contained within Customer Data (“Customer Personal Data”) and as Data Controller, you have sole responsibility for its legality, reliability, integrity, accuracy and quality.
11.2 You warrant and represent that:
11.2.1. you will comply with and will ensure that your instructions for the Processing of Customer Personal Data will comply with the relevant Data Protection Laws;
11.2.2. you are authorised pursuant to the Data Protection Laws to disclose any Customer Personal Data which you disclose or otherwise provide to us regarding persons other than yourself;
11.2.3. you will where necessary, and in accordance with the Data Protection Laws, obtain all necessary consents and rights and provide all necessary information and notices to Data Subjects in order for:
188.8.131.52. you to disclose the Customer Personal Data to us;
184.108.40.206. us to Process the Customer Personal Data for the purposes set out in this agreement; and
220.127.116.11. us to disclose the Customer Personal Data to: (a) our service providers where necessary for us to provide the Xinowa service; (b) law enforcement agencies; (c) any other person in order to meet any legal obligations on us, including statutory or regulatory reporting; and (d) any other person who has a legal right to require disclosure of the information, including where the recipients of the Customer Personal Data are outside the European Economic Area.
11.3. To the extent that Xinowa Processes any Customer Personal Data, the terms of Appendix A shall apply and the parties agree to comply with such terms.
11.4. Where, and to the extent we Process your Personal Data as a Data Controller in accordance with our Privacy Notice, we shall comply with all Data Protection Laws applicable to us as Data Controller.
11.5. You agree that we may record, retain and use Customer Data generated and stored during your use of the Service (including Customer Personal Data, which we shall Process as Data Controller as set out in our Privacy Notice, on the basis of our legitimate business interests), in order to:
11.5.1. deliver advertising, marketing (including in-product messaging) or information to you which may be useful to you, based on your use of Xinowa;
11.5.2. carry out research and development to improve our services, products and applications;
11.5.3 develop and provide new and existing functionality and services (including statistical analysis, benchmarking and forecasting services) to you and other Xinowa customers;
11.5.4 provide you with location based services (for example location relevant content) where we collect geo-location data to provide a relevant experience;
11.6 You agree that we may retain and use data generated by you during your use of the Xinowa service once this agreement is terminated for the purposes outlined in clause 11.5 provided that we shall only retain and use such data in a pseudonymised form, displayed at aggregated levels, which will not be linked back to you or to any living individual.
12. Anti-Bribery and Corruption
12.1. Each party will and will procure that persons associated with them shall:
12.1.1. comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption (the “Relevant Requirements”);
12.1.2. not engage in any conduct which would constitute an offence under any of the Relevant Requirements;
12.1.3. not do, or omit to do, any act that may lead the other party to be in breach of any Relevant Requirements;
12.1.4. promptly report to the other party any request or demand for any undue financial or other advantage received by it in connection with this agreement;
12.1.5. have and maintain in place during the term of this agreement its own policies and procedures to ensure compliance with the Relevant Requirements and will enforce them where appropriate.
13. Technical support and how we may access your Xinowa account
13.1 During the period of your subscription, we aim to give you technical support during business hours 5 days a week (although there may be times where we are unable to do this for reasons outside our control) covering problems you may have using Xinowa. We may provide this by telephone, email, web-chat, remote assistance (where we will access your account and data online) or self-help online support as described in the Help Section of Xinowa. You grant us the right to access your data to provide such support. If we do not have this access we may not be able to provide you with support.
13.2 We may release enhancements or provide additional features to Xinowa (“Updates”). The frequency and how we provide any Updates to you will be at our discretion. We may tell you when we have provided such Updates via a notification in Xinowa or by sending an email to you.
13.3 We will not at any time give you technical support or other assistance for any hardware, third-party software, services or other equipment used with Xinowa.
14. Intellectual Property Rights
14.1 Although you have rights to use Xinowa as described in this agreement, you do not own any of the intellectual property rights in Xinowa or any of its related logos. We (or the third party from whom we obtain our rights if we are not the owner) continue to own the intellectual property rights in Xinowa and any related logos, including any software we provide to replace all or part of Xinowa. The only rights you have to Xinowa are as set out in this agreement.
14.2 You undertake not to use Xinowa’s name or brand in any promotion or marketing or other announcement unless authorised to do so by us.
15. Our liability and responsibility to you if something goes wrong
15.1. This clause sets out our entire liability to you (including any additional users you may have invited) which arises out of or in connection with this agreement whether in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise.
15.2 We make no warranty of assurance about the contents of Xinowa for accuracy or completeness. Information may be incorrect or out of date. Your use of Xinowa is at your own risk. We accept no liability for any error or omission in the data we present to you.
15.3 Subject to clauses 15.5 and 15.6, our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise arising under or in connection with this agreement will be limited to paying you an amount which is equal to the total of all fees you have paid to us for your use of the relevant Xinowa product during the 12 month period immediately preceding the date on which the claim arose (such relevant Xinowa product being the product forming the subject matter of the claim).
15.4 Subject to clauses 15.5 and 15.6, we will not be responsible whether in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise for any of the following (even if we knew or should have known there was a possibility you could suffer or incur such loss or damage):
15.4.1 loss of profit, business or revenue and/or depletion of goodwill or similar losses;
15.4.2 loss of use or loss of or damage to data / information inputted by you into Xinowa;
15.4.3 any interruption to your business or damage to information, however that interruption or damage is caused;
15.4.4 losses you suffer as a result of using Xinowa other than as described in the relevant documents or instructions; and / or
15.4.5 any loss or damage which we could not have reasonably known about at the time you entered into this agreement including, without limitation any special, indirect or consequential loss or damage.
15.5 Nothing in this agreement will exclude or limit our liability for:
15.5.2 death of or personal injury to any person as a result of our negligence; or
15.5.3 any other matter which cannot be excluded or limited under applicable law.
15.6 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.
15.7 Your and our responsibilities under this agreement are reasonable because they reflect that:
15.7.1 we cannot control how, and for what purposes, you use Xinowa;
15.7.2 we have not developed Xinowa specifically for you; and
15.7.3 although we follow good industry practice, it is not economically possible for us to carry out all the tests necessary to make sure that Xinowa is problem or error free.
16. How this agreement may be brought to an end and what happens on termination
16.1. We may end this agreement:
16.1.1. immediately if we or your Xinowa Partner (if appropriate) do not receive your subscription fee or any other fees due to us under this agreement by the relevant due date; or
16.1.2. at any time on giving you at least 30 days’ notice and if we do, we will refund to you any amounts you have paid in advance for the applicable subscription period calculated from the date of termination.
16.2. You may end this agreement at any time by sending us an email to info@Xinowa.com. In the case of the Xinowa Platform, the Subscriber User must send this email. If you end this agreement, we will confirm the date that this agreement will end. We will not give you a refund for any amounts you have paid in advance for the applicable subscription period, and you must immediately pay all amounts you owe to us (or your Xinowa Partner as the case may be) by the date this agreement ends. If you continue to use Xinowa after the expiry of any subscription period we will be entitled to charge you for such use at our then current applicable fees.
16.3. Should we have granted you access to paid-for Xinowa functionality on a free trial basis for whatever reason, if at the end of the trial period you choose not to pay the subscription fee to continue to use the paid-for functionality, your access to such functionality will immediately end.
16.4. If you or we discover that the other has done something which is not allowed by this agreement, or has not done something that must be done, the one making such discovery can give the other written notice that the matter must be put right within 30 days. If the matter is put right within that time, no further action will be taken. If it is not put right within that time, the person who made the discovery may end this agreement upon giving the other notice in writing.
16.5. This agreement will automatically (i.e. without us having to tell you) and immediately end without refund if you or your Xinowa Partner become insolvent (or something similar happens) or your business or that of your Xinowa Partner is not able to pay its debts, stops trading or becomes insolvent (or something similar happens). In those circumstances we will have no further obligation to you under this agreement and any monies due from you will become immediately due and payable.
16.6. No matter how this agreement ends, the information you store in Xinowa remains your information and you can access it in a format provided by Xinowa before the end of this agreement. If you (or your Xinowa Partner) wish to access your information after this agreement has ended, you agree to pay our reasonable charges for that access, but you accept that we have automated processes that periodically delete data belonging to customers with whom this agreement has ended and therefore we may ourselves no longer have access to your information.
16.7. In addition to our rights to end this agreement, we may also suspend your use of Xinowa at any time if we (or your Xinowa Partner if applicable) do not receive payment in full when due or if we suspect that you or your Xinowa Partner has breached any part of this agreement. If you are an Xinowa Platform customer, we may suspend your use of Xinowa Platform for all Organisations you have access to, regardless of which business is in breach of this agreement and / or has defaulted in payment.
16.8. Any suspension of your Xinowa account will continue until such time that the breach in question has been remedied to our reasonable satisfaction and/or we have received payment from you in full. Where we suspend or terminate your use of Xinowa under this clause, we may at our discretion agree to reactivate your account subject to you paying to us a reactivation fee. In accordance with clause 6.8 above, if you received Xinowa at a special or discounted price your subscription fee may be reactivated at our then-current list price which will be higher than the special or discounted price you previously paid.
17. What else do you need to know?
17.1. If a court or similar body decides that any wording in this agreement cannot be enforced, that decision will not affect the rest of this agreement, which will remain binding on both parties. However, if the wording that cannot be enforced could be enforced if part of it is deleted, we will both treat the relevant part of the wording as if it is deleted.
17.2. If you or we fail to, or delay in, exercising any rights under this agreement, that will not mean that those rights cannot be exercised in the future.
17.3. This agreement and the documents we refer to above constitute the entire agreement between you and us for your use of Xinowa, and replaces all documents, information and other communications (whether spoken or written) between us for such use.
17.4. As specified in clause 7.3, this agreement is personal to you and may not be transferred, assigned, subcontracted, licensed, charged or otherwise dealt with or disposed of (whether in whole or in part) by you without our prior written consent. We may transfer, assign, subcontract, license, charge or otherwise deal with or dispose of (whether in whole or in part) this agreement at any time without your consent.
17.5. A person who is not a party to this agreement has no right to enforce any term of it.
17.6. Where either party is required to notify the other party by email, the party shall be deemed to have received the email on the first business day following transmission.
18. Which laws govern this agreement?
18.1. This agreement is governed by the laws of England and Wales and you and we both irrevocably agree that the courts of England will have exclusive jurisdiction to hear and decide any dispute, action, suit or proceedings on all disputes arising out of this agreement, including any disputes as to its existence, validity or termination or claims about this agreement.
Appendix A – Data Protection
Where there is any inconsistency between the terms of this Appendix A and any other terms of this agreement, the terms of Appendix A shall take precedence.
2. Processing of Personal Data
2.1 During the term of this agreement we warrant and represent that we:
2.1.1. shall comply with the Data Protection Laws applicable to us whilst any Personal Data is in our control;
2.1.2. when acting in the capacity of a Data Processor, shall only Process Personal Data:
18.104.22.168 as is necessary for the provision of Xinowa under this agreement and the performance of our obligations under this agreement; or
22.214.171.124 otherwise on your documented instructions.
3. Our Obligations
3.1 We shall:
3.1.1. taking into account the nature of the Processing, assist you by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to respond to requests from individuals for exercising Data Subjects’ rights; and
3.1.2. taking into account the nature of the Processing, and the information available to us, provide reasonable assistance to you in ensuring compliance with your obligations relating to:
126.96.36.199. notifications to Supervisory Authorities;
188.8.131.52. prior consultations with Supervisory Authorities;
184.108.40.206. communication of any breach to Data Subjects; and
220.127.116.11. privacy impact assessments.
4.1 We shall:
4.1.1 We shall: take reasonable steps to ensure the reliability of any personnel who may have access to the Personal Data;
4.1.2 We shall: ensure that access to the Personal Data is strictly limited to those individuals who need to know and/or access the Personal Data for the purposes of this agreement; and
4.1.3 We shall: ensure that persons authorised to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
4.2 If so required by Data Protection Laws, Xinowa shall appoint a data protection officer and make details of the same publicly available.
5. Security and Audit
5.1. We shall implement and maintain appropriate technical and organisational security measures appropriate to the risks presented by the relevant Processing activity to protect the Personal Data against unauthorised or unlawful Processing and against accidental loss, destruction, damage or disclosure. Such measures include, without limitation, the security measures set out in clause 5.3 below.
5.2. Subject to any existing obligations of confidentiality owed to other parties, we shall make available to you all information reasonably necessary to demonstrate compliance with the obligations set out in this Appendix B, which may include a summary of any available third party security audit report, or shall, at your sole cost and expense (including, for the avoidance of doubt any expenses reasonably incurred by us), allow for and contribute to independent audits, including inspections, conducted by a suitably-qualified third party auditor mandated by you and approved by us.
5.3. Xinowa operates, maintains and enforces an information security management programme (“ISMS”) which is consistent with recognised industry best practice. The ISMS contains appropriate administrative, physical, technical and organisational safeguards, policies and controls in the areas required by ISO27001.
6. Data Breach
6.1.We shall notify you if we become aware of a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Personal Data arising from our, or our sub-processors, acts or omissions.
7. Transfer of Personal Data outside the EEA
7.1. You acknowledge that the provision of Xinowa may require the Processing of Personal Data by sub-processors in countries outside the EEA. We shall not transfer Personal Data outside the EEA to a sub-processor where such transfer is not subject to: (a) an adequacy decision (in accordance with Article 45 of the GDPR); or (b) appropriate safeguards (in accordance with Article 46 of the GDPR); or (c) binding corporate rules (in accordance with Article 47 of the GDPR), without your prior written consent.
8. Return and deletion
8.1. At your option, we shall delete or return all Personal Data to you at the end of the provision of Xinowa and delete all existing copies of Personal Data unless we are under a legal obligation to require storage of that data or we have another legitimate business reason for doing so.
9. Use of Sub-Processors
9.1.You agree that we have general authority to engage third parties, partners, agents or service providers to Process Personal Data on your behalf in order to provide the applications, products, services and information you have requested or which we believe is of interest to you (“Approved Sub-Processors”). We shall not engage a sub-processor to carry out specific Processing activities which fall outside the general authority granted above without your prior specific written authorisation and, where such other sub-processor is so engaged, we shall ensure that the same obligations set out in this Appendix A shall be imposed on that sub-processor.
9.2. We shall be liable for the acts and omissions of any Approved Sub-Processor to the same extent we would be liable if performing the services of each Approved Sub-Processor directly under the terms of this agreement. For more general information regarding how we engage with users, please consult our General Terms and Conditions.