XCheckList Terms of Service
Last updated 1 January 2019
“Applicable Law” means any legally binding obligation applicable to a party, including statutes, rules, regulations, codes, court rulings, or any other binding requirement.
“XCheckList App” means the software application at http://xcheckList.com/.
“XCheckList”, “we” “us”, or “our” means XCheckList Limited, an Vietnam company, having its registered office at Hoc Mon, Hochiminh, VN.
“Fees” means the fees that you owe to us, based on the applicable Subscription Plan that you purchase.
“Free App” means the version of the XCheckList App that is available for free and which has a lesser functionality than the Paid App.
“Initial Term” means the initial term of your subscription, as set out in the Subscription Plan that you purchase.
“Paid App” means the XCheckList App that is available for purchase.
“Renewal Term” means a renewal of your subscription of a period of time equal to the Initial Term.
“Subscription Plan” means any one of our subscription plans, as set out at https://XCheckList.com/plans.
“Services” means the provision of the XCheckList App, the Website, and any other services that we agree to provide to you.
“Trial Period” means a trial period, during which you can use the Paid App without being obligated to pay the Fees.
“Term” means in respect of the Paid App, the Initial Term or Renewal Term, as applicable; and in respect of the Free App, whenever you have a right to use the Free App.
“User” means an individual (human) user of the XCheckList App.
“you” means, in the case of an individual accepting these terms of service on his or her own behalf, that individual; or, in the case of an individual accepting these terms of service on behalf of a company or legal entity, that company or legal entity.
“Website” means the website at www.XCheckList.com.
- The Services and accounts
- 2.1. The Services: These terms of service are a binding legal agreement between you and XCheckList that set out the terms on which you can make use of any of the Services. You may not use any of the Services without agreeing to these terms. We only provide the Services subject to these terms of service.
- 2.2. Who can use the Services: The Services are available only to non-consumers, for their internal, professional use. You are not permitted to use the Services as a consumer. Any use you make of the Services as a consumer is an incurable, material breach of these terms of service.
- 2.3. Using the XCheckList App without creating an account or using the Free App: We may make the Website and/or the Free App available for limited use without requiring you to create an account. We may change the features that are available on the Website or the Free App or otherwise to unregistered users at any time. We may also remove your access to any of our Services at any time if you do not create an account.
- 2.4. Creating an account: To access the Paid App, you are required to create an account (either directly or via an administration User). Each User login credential is individual to that User only, and cannot be used by anybody else. You are responsible for ensuring that any user IDs and passwords required for you or your Users to use Services are kept safe and confidential. You will promptly notify us upon discovery if the security of a user ID or password is, or may be, compromised.
- Using the Services
- 3.1. Responsibility: You: (a) are responsible for your use of the Services and for your Users’ use of the Services; (b) are responsible for your compliance with these terms of service and for your Users’ compliance with these terms of service (as if they were you); (c) will comply with the Twitter Terms of Service as may be required based on your use of any Twitter data, usually at http://twitter.com/tos; and (d) will not allow more than any maximum number of Users to use the Paid App, as may be set out in any Subscription Plan that you purchase.
- 3.2. User protection: You will not: (a) knowingly display, distribute, or otherwise make available any data from the XCheckList App to any person or entity that you reasonably believe will use the data in any manner that would have the potential to be inconsistent with any individual’s reasonable expectations of privacy; (b) conduct any research or analysis that isolates a small group of individuals or any single individual for unlawful, illegal or discriminatory purposes; (c) use the XCheckList App to target, segment, or profile any individual based on health, negative financial status or condition, political affiliation or beliefs, racial or ethnic origin, religious or philosophical affiliation or beliefs, sex life or sexual orientation, trade union membership, data relating to any alleged or actual commission of a crime, or any other sensitive categories of personal information prohibited by Applicable Law; or (d) without our prior written consent, display, distribute, or otherwise make the XCheckList App or any data within it available to any member of the US intelligence community or any other government or public sector entity.
- 3.3. Restrictions: You will not: (a) sell, resell, license, sublicense, distribute, or otherwise make the Services (including any data within the Services) available to anybody other than your Users, without our prior written consent in each instance; (b) subject to Applicable Law, attempt to reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form any part of the Services; (c) use the Services to violate Applicable Law, including Applicable Law about data protection, privacy, or information security; (d) communicate any material which is obscene, defamatory, offensive, or abusive via the Services; or (e) purposefully, recklessly or negligently interfere with or disrupt the integrity or performance of the Services, including spamming, hacking, purposefully violating or circumventing our API rate limits, or similar activities.
- 3.4. Removal of data: A licensor or Applicable Law may require us to remove data from the XCheckList App or the Website. In such cases, we will notify you of the impacted data and you will promptly remove the same data from your systems, whether during or after the Term.
- Our responsibilities
- 4.1. Warranties: We warrant that during the Term: (a) we will provide the Services with reasonable skill and care; (b) that the XCheckList App, when properly used on an operating system for which it was designed, will perform substantially in accordance with the functions described at http://XCheckList.com/tour/; (c) that the Website correctly describes the operation of the XCheckList App in all material respects; and (d) that we will have all licences and permissions necessary to perform our obligations under these terms of service.
- Subscription, Trial Period, Fees, payment, and taxes
- 5.1. Subscription: By selecting a Subscription Plan, you are making an offer to us to purchase the Services for the Term. Every subscription automatically renews at the end of the Initial Term or Renewal Term for the period equal to the Initial Term or Renewal Term, unless you or us notify the other party in writing at least 10 days prior to the end of the Initial Term or Renewal Term of the intention not to renew the subscription.
- 5.2. Trial Period: At the end of the Trial Period (if any) of the Paid App, the subscription will automatically continue for the Term unless you have provided us written notice, before the end of the Trial Period, that you do not intend to continue with the Paid App beyond the Trial Period.
- 5.3. Fees: All Fees must be paid in the currency identified in the Subscription Plan that you purchase. Accordingly, the Fees as converted to your local currency may fluctuate as billed to you by your payment provider. The Fees are non-cancellable and non-refundable, subject to Applicable Law. We may increase the Fees for any Renewal Term if we provide you with at least 30 days’ written notice of the increase.
- 5.4. Electronic payment: You must provide us with electronic payment details in the format we require in order to use the Paid App. By providing your credit or debit card details to us in advance of any Fees being due, you authorise us to bill your credit or debit card on: (a) if you have a trial of the Paid Add that you do not cancel, the first date after the end of the Trial Period; (b) in all other circumstances, before you use the Paid App. We also make clear that you are giving us your authority to do this when we take your credit/debit card details.
- 5.5. Taxes: The Fees are exclusive of legally applicable taxes, levies, duties or similar governmental assessments, including goods and services, value-added, and sales taxes (collectively, “Taxes”). If we are legally required to pay or collect Taxes for which you are responsible, we (or a third party) will invoice you and you will pay that amount unless you provide us (or a third party) with a valid tax exemption certificate by the appropriate taxing authority.
- Intellectual property
- 6.1. Our intellectual property rights: We, or our licensors, own all intellectual property rights in the Services. Except as expressly stated otherwise in these terms of service, no one is granted any rights to or interest of any kind in our intellectual property rights.
- 6.2. Licence to use your feedback: You grant to us, and you undertake to procure that your Users grant to us, a worldwide, perpetual, irrevocable, royalty-free licence to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction, or other feedback provided by you or your Users arising out of your use of the Services. You also undertake to procure that your Users waive all moral rights in such feedback.
- Suspension and termination
- 7.1. Suspension: If you use (or anyone other than you, with your permission, uses) the Services in violation of these terms of service, we may suspend your use of the Services (in whole or in part). If we suspend the Services, we may refuse to restore the Services until we receive an assurance from you, in a form we deem acceptable, that there will be no further breach of these terms of service.
- 7.2. Mutual termination: A party may terminate these terms of service by written notice to the other party at any time if: (a) the other party is in material breach which is not remediable; (b) the other party is in material breach which is remediable and the breach is not remedied within 30 days of being notified in writing of the breach; or (c) the other party begins bankruptcy proceedings or becomes the subject of a petition in liquidation or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors or, in relation to you, any analogous event in any relevant jurisdiction.
- 7.3. Accrued rights and liabilities and survival: Termination of these terms of service, however arising, does not affect the accrued rights and liabilities of the parties as at termination. All clauses of these terms of service that need to survive termination in order to give effect to them, survive termination.
- EXCLUSIONS AND LIMITATIONS OF LIABILITY
- 8.1. What the parties are always liable for: Nothing in these terms of service excludes or limits a party’s liability for any liability that cannot be excluded or limited under Applicable Law (including fraud).
***IMPORTANT: PLEASE READ SECTIONS 8.2–8.4 CAREFULLY AS THEY EXCLUDE AND/OR LIMIT EACH PARTY’S LIABILITY***
- 8.2. Losses a party is never liable for: Subject to section 1, each party excludes all liability, whether in tort (including for negligence), breach of statutory duty, contract, misrepresentation, restitution, or otherwise, direct or indirect or otherwise, whether foreseeable, known, foreseen, or otherwise, however arising, for any: (a) loss of revenue or profits (of any kind); (b) loss of goodwill; (c) loss of business; (d) losses suffered on third party websites or applications; or (e) special, indirect, or consequential loss, costs, damages, charges, or expenses.
- 8.3. Other important exclusions of loss: Subject to section 1 and 8.1, we make and give no warranties or representations: (a) that the Website or the XCheckList App will always be available or use of them will be uninterrupted; (b) that we will have any specific types of data or that you may be able to access third party sites or applications via the Services; or (c) that the Services will provide you with any particular insight. Other than as set out expressly elsewhere in these terms of service, we exclude all other warranties, conditions, representations, or other terms (whether express or implied), subject to Applicable Law.
- 8.4. Liability cap: Subject always to sections 1, 8.2, 8.3 and 9.9, our total liability arising out of the Services or these terms of service, however arising, will under no circumstances exceed in aggregate, the greater of: (a) £30,000 or (b) 110% of the total amount of Fees paid or payable for the Services under these terms of service for the 12 months immediately preceding the date any first claim arose.
- 9.1. Privacy: We collect and process User data in accordance with our Privacy Statement.
- 9.2. Rules of interpretation: (a) The words “include” and “including” are deemed to have the words “without limitation” following them; (b) references to the singular include the plural and vice versa; and (c) references to “will” are to be construed as having the same meaning as “shall”.
- 9.3. Force Majeure: Neither party is liable for a breach caused by an event beyond its reasonable control, including a natural disaster, disease outbreak, war, riot, terrorist action, civil commotion, malicious damage, government action, industrial action or dispute, fire, flood, storm, or failure of third party telecommunications services.
- 9.4. Publicity: We will not disclose that you are a customer without your prior written consent.
- 9.5. Invalidity: If any term of these terms of service is found invalid, illegal or unenforceable, the rest of these terms of service remain in effect.
- 9.6. No waiver: Either party’s delay or failure to enforce a term of these terms of service is not a waiver of that right and does not prevent that party from later enforcing that term or any other term.
- 9.7. Notice: Each party will deliver notices for legal service or material breach by a courier service or recorded delivery: for us, to our registered office address as set out above; for you, to the address we have for you on file. Any notices for any matter other than legal service or material breach may be delivered in accordance with the previous sentence or by email. If sent by email, you will send the notice to [email protected] and we will send the notice to you to via an email address listed in your account. Notice sent by recorded delivery is received three London, UK business days after posting. A party is deemed to receive email notice 24 hours after it is sent.
- 9.8. Transfer: You may not assign, transfer, charge or otherwise encumber, create any trust over, or deal in any manner with these terms of service, or any right, benefit, or interest under it, nor transfer or novate without our prior written consent. Any of the foregoing without our prior written consent is void.
- 9.9. Entire agreement: These terms of service, including materials incorporated by reference, constitutes the exclusive statement of agreement and understanding between the parties. These terms of service exclude all prior or contemporaneous proposals, understandings, agreements, or representations, whether oral or written about its subject matter. You agree that no representations were made prior to entering into these terms of service and that, in entering into these terms of service, you do not rely on, and will have no remedy in respect of, any statement, representation, warranty, or understanding (whether negligently or innocently made) of any person (whether party to these terms of service or not) other than as set out in these terms of service. Nothing in these terms of service excludes or limits our liability for fraudulent misrepresentations or excludes (but these terms of service do limit) our liability for any fundamental misrepresentation.
- 9.10. Third party rights: Nothing in these terms of service creates or confers any rights or other benefits in favour of any person other than the parties to these terms of service even if that person has relied on the term or has indicated to any party to these terms of service its assent to the term.
- 9.11. No agency: These terms of service do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
- 9.12. Governing law and jurisdiction: US law governs these terms of service and any non-contractual disputes or claims arising out of them. The parties agree that US courts have exclusive jurisdiction over these terms of service, including any non-contractual disputes or claims arising out of them.