This service agreement contains the terms and conditions that govern your access to and use of the xamoom cloud. It is an agreement between xm systems GmbH and you or the entity you represent. If you are entering into this agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. This agreement takes effect once you agree to get into a business relation with xm systems GmbH (click the accept-button when registering at xamoom.com, agree in any communication with the purchase of the service). It is valid for either the trial period or the regular usage of the xamoom cloud as a paid customer.
1. Use of the xamoom cloud
You may use the xamoom cloud only in accordance with this agreement. You will adhere to all rules, and regulations applicable to your use of the xamoom cloud.
You are obliged to take all necessary steps to secure your username and password (e.g. strong passwords, use of antivirus programs and firewalls on all your computers and networks). As regards to phishing: We will never send you an email asking you for your login credentials. You are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by you, your employees or a third party (e.g. contractors or agencies). You will contact us immediately if you believe your account information is lost, stolen or compromised.
Your access to the xamoom cloud is for your use only and may not be given away, transferred or sublicensed (whether for free or paid) to anyone outside your organization.
You or your licensors own all right, title, and interest in and to your content, including any related intellectual property rights. You consent to our use of your content to provide the services of the xamoom cloud to you and any of your end users.
If you provide any suggestions to us or our affiliates, we will own all rights, title, and interest in and to these suggestions, even if you have designated these suggestions as confidential. We are entitled to use the suggestions without restriction.
We may change, discontinue or deprecate any of the offerings of the xamoom cloud or change or remove features over time. We will notify you of any material change to or discontinuation of the xamoom cloud.
We may change, discontinue or deprecate any APIs and SDKs for the xamoom cloud but will use commercially reasonable efforts to continue supporting the previous version of any API and SDK changed, discontinued or deprecated for three months after the change, discontinuation, or deprecation. Exceptions are if the continued support of the API or SDK would pose a security or intellectual property issue or it is economically or technically burdensome.
3. Security and Data Privacy
All content you publish using the xamoom cloud is and will always be your property. xm systems GmbH acts as a data processing commissioner on your behalf.
On free systems, we will reserve to right to place advertising in between the content. Otherwise xamoom or its affiliates will not manipulate your content in any way or form.
We will implement appropriate and reasonable measures to help you secure your content against accidental or unlawful loss, access or disclosure. For developing, running and maintaining our services to you and your end users we rely on infrastructure of various vendors. xm systems takes great effort in the selection and operation of these services. These include for example staging and hosting of our core components (e.g. CMS, mobile web). We protect this data with state-of-the-art-technology and best practice like strong passwords, two factor authentications, timely security patches and data transfer encryption.
Your data will be stored by us on servers under the “EU-US Privacy Shield” regulations (formerly known as “Safe Harbor”) and are subject to privacy rules in the European Union.
We store personal data of you and your employees and any third party you engage with creating content within our product in the core of our the xamoom cloud. These are: name, e-mail-address, an encrypted version of the password and login-logs.
Information regarding your contract (e.g. billing address) may be stored by xm systems and its affiliates to fulfill commercial tasks (e.g. billing). You hereby expressly agree that sm systems may communicate with you at any time using all communication channels (e.g. to make product announcements).
The xamoom cloud does not store any private information of your end users. This is still true for custom developments based on your requirements that connect the xamoom cloud to a third party system (e.g. customer relationship management systems). Even in this case this data is never be stored within the xamoom cloud.
According to European law, your customers have the right to ask which data you store about them and to delete this information permanently (“right to be forgotten”). In case you receive such a request by one of your end users, xm systems will do everything to assist you in fulfilling your informative duties to the best of our knowledge. In such a case, contact our data protection officer, Gerald Mueller (firstname.lastname@example.org, +43-677 64216246).
4. Your responsibilities
You are solely responsible for your content. You are solely responsible that your content does not violate any person’s rights (e.g. right to process their data as content, copyright or a person’s right in their own image).
You may not use or encourage, promote, facilitate or instruct others to use the xamoom cloud for any illegal, harmful or offensive use. You may not transmit, store, display or distribute any content that is illegal, harmful, repulsive or offensive.
We reserve the right to investigate violations of this policy or any misuse. We reserve the right to remove, disable or modify any content that violates this agreement.
We may report any activity that we suspect violates any law or regulation to appropriate law enforcement officials or regulators. We may cooperate with appropriate law enforcement agencies, regulators or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing information related to alleged violations of this policy.
You are solely responsible for all users on your system. You will ensure that all users comply with your obligations under this agreement. If you become aware of any violation of your obligations under this agreement by any of your users, you will immediately terminate such user’s access to your account on the xamoom cloud.
In case you process, upload or publish data or content that affects the privacy of any person, you will make sure to do this under the applicable privacy regulation.
You are responsible for fulfilling all applicable information requirements e.g. regarding having a proper imprint on your mobile offering.
As for xm systems services, are obliged to insert the following paragraph into your imprint and/or privacy statement:
“This content offering uses an analytics service provided by xm systems GmbH (“xm systems”). This service uses IDs and cookies to help analyze how users use the content offering. The information generated by xm systems about your use of the content offering will be transmitted to and stored by xm systems on its servers. xm systems will use this information for the purpose of evaluating your use of the content offering, compiling reports on activities for us as xm systems customer. xm systems may also transfer this information to third parties where required to do so by law, or where such third parties process the information on xm systems behalf. xm systems will not associate your personal data with any other data held by xm systems or its clients. By using this content offering, you consent to the processing of data about you by xm systems in the manner and for the purposes set out above.”
5. Fees, payment and taxes
The service is provided to you on the basis of a twelve month contract for the first year. Afterwards you can terminate the service quarterly beginning of the month.
You will pay us the applicable fees for use of the xamoom cloud using one of the following payment methods: bank transfer, credit card payment or PayPal. All amounts payable under this agreement are due within 14 days after receiving the bill and will be made without setoff or counterclaim and without any deduction or withholding. We may increase or add new fees for the xamoom cloud by giving you at least 60 days’ advance notice. We may charge you an interest rate of 1.5 per cent per month on all late payments.
All fees and charges payable by you are stated excluding VAT or other appropriate sales taxes. You will provide us any information we reasonably request to determine whether we are obligated to collect VAT from you (e.g. your VAT identification number).
In the event of significant fluctuations in market conditions, economic indices, or other relevant metrics, xm systems GmbH reserves the right to adjust pricing, fees, or other terms outlined in this agreement. Any adjustments made under this provision will be based on objective criteria and will be communicated to the User with reasonable notice. By agreeing to these terms, the User acknowledges and accepts the possibility of such adjustments and agrees to abide by them.
6. Temporary suspension
We may suspend you or any of your user’s and end user’s access the xamoom cloud immediately upon notice of a violation to this agreement. This includes the following cases:
- You, other users of your system on the xamoom cloud or your end users …
- pose a security risk to the xamoom cloud or any third party,
- may adversely impact the service quality of the xamoom cloud or
- behave fraudulent.
- You or other users of your system in the xamoom cloud are in breach of this agreement. This includes if your payment obligations are overdue for more than 15 days.
- You have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets or become the subject of bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
During the period of suspension, charges and fees still apply. If we suspend your access to the xamoom cloud you remain responsible for all fees and charges. You are obliged to take any action that helps resolving the suspension. During this period of suspension, we will not erase any of your content.
Our right to suspend your or any end user’s right to access or use the xamoom cloud is in addition to our right to terminate this agreement pursuant to the following section.
We reserve the right to delete a xamoom free system if there wasn’t any activity (login or content call) for the last 60 days.
After the minimum contract period stated in our order confirmation you may terminate this agreement for any reason by providing us written notice 90 days advance notice.
We may terminate this agreement for any reason by providing you 30 days advance notice. In cases of serious violations of the agreement according to sections 5 or 6 we reserve the right to terminate your service immediately.
Termination means that all your rights under this agreement immediately terminate. You still remain responsible for the payment of all fees applicable until the time of termination.
You, your system’s other users or your end users will not have access to the xamoom cloud. All physical labels leading to your content on the xamoom cloud shall be removed and made unusable without any delay. We will delete all your content 30 days after the termination is in effect. Until this time, you can retrieve your content from xm systems via an inquiry to xm systems’s support staff. If fees will be applicable you will be noticed in advance.
You will defend, indemnify and hold harmless us, our affiliates and each of their respective employees and representatives from and against any claims, damages, losses, liabilities and expenses arising out of your or any end users’ use of the xamoom cloud.
We will promptly notify you of such claims. You may use counsel of your own choosing to defend against any claim or settle the claim as you deem appropriate.
9. Disclaimer & Limitations of Liability
The xamoom cloud is provided “as is”. We and our affiliates make no warranties of any kind, whether expressed, implied, statutory or otherwise regarding the xamoom cloud or the third party content hosted will be uninterrupted, error free or free of harmful components or that any content, including content of third parties, will be secure or not otherwise lost or damaged.
We and our affiliates will not be liable to you or any direct, indirect, incidental or consequential damages (including damages for loss of profits, goodwill, use or data). Further, neither we nor any of our affiliates will be responsible for any compensation or reimbursement in connection with your ability to use the service due to termination or suspension of your access to the xamoom cloud or the discontinuation of the xamoom cloud itself or some or all of its features.
In the case of severe negligence on xm systems’s side, any compensation will be limited to the amount you pay us under this agreement for the service that gave rise to the claim during the twelve months preceding the claim.
10. Modifications to the Agreement
We may modify this agreement at any time by posting a revised version on xm systems’s website or by otherwise notifying you. The modified terms will become effective upon posting or if we notify you by e-mail, as stated in the e-mail message. By continuing to use the xamoom cloud after the effective date of any modifications to this agreement you agree to be bound by the modified terms. It is your responsibility to check xm systems’s website regularly for modifications to this agreement. We last modified this agreement on the date listed at the end of this agreement.
Force Majeure: We and our affiliates will not be liable for any delay or failure to perform any obligation under this agreement where the delay or failure results from any cause beyond our reasonable control, including acts of god, labor disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism or war.
No Third Party Beneficiaries: This agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this agreement.
Notifications: We may provide any notice to you under this agreement by posting a notice on the xamoom cloud dashboard or sending a message to the e-mail address associated with your account. Notices we provide by posting on the xamoom cloud dashboard will be effective upon posting and notices we provide by e-mail will be effective when we send the e-mail. It is your responsibility to keep your e-mail address current. You will be deemed to have received any e-mail sent to the e-mail address then associated with your account when we send the e-mail, whether or not you actually receive the e-mail.
To give us notice under this agreement, you must contact xm systems GmbH as follows: Luegerstr 10, A-9020 Klagenfurt, Austria, phone: +43-677 64216246, e-mail: email@example.com. We may update the contact information for notices to us by posting a notice on the xm systems website. Notices provided by personal delivery or e-mail will be effective immediately. Notices provided via postal mail will be effective three business days after they are sent.
All communications and notices to be made or given pursuant to this agreement must be in the English or German language.
Assignment: You will not assign this agreement, or delegate or sublicense any of your rights under this agreement, without our prior written consent. Subject to the foregoing, this agreement will be binding upon and inure to the benefit of the parties and their respective successors and assigns.
No Waivers: The failure by us to enforce any provision of this agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
Severability. If any portion of this agreement is held to be invalid or unenforceable, the remaining portions of this agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this agreement but the rest of the agreement will remain in full force and effect.
Governing Law and Venue: The laws of the Republic of Austria, without reference to conflict of law rules, govern this agreement and any dispute of any sort that might arise between you and us. Any dispute relating in any way to the xamoom cloud or this agreement will be adjudicated in courts at Klagenfurt, Austria. You consent to exclusive jurisdiction and venue in those courts.
xamoom cloud: All software components regarding the service provided by the xm systems GmbH. These consist e.g. the content management system, the service apps, mobile web clients, mobile apps, APIs, SDKs and web services
Spot means either a location or physical product on which a marker will be attached.
Marker means a location identifier (e.g. URLs for QR codes, NFC tags or IDs for iBeacon and/or a geo coordinates).
Content means software, data, text, audio, video, images or any other information provided by you to your end users using the xamoom cloud.
End user means any individual that directly or indirectly accesses or uses your content or otherwise accesses or uses a marker at a spot under your account.
Suggestions means all suggested improvements to the xamoom cloud that you provide to us.
Third party content means all content (e.g. links, embedded items) made available to you by any third party on the xamoom cloud or in conjunction with the xamoom cloud.
Last modified: 2018-03-01