Terms of Service

This service agreement contains the terms and conditions that govern your access to and use of the xamoom cloud. It is an agreement between xamoom 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 xamoom (click the accept-button when registering at xamoom.com, agree in any communication with the putchase 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 your pc or network). As regards phishing: We will never send you an email asking you for your log-in 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 or stolen.

Your log-in credentials for the xamoom cloud are for your internal use only and you may not be given, 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 end users. We may disclose your content to provide the service of the xamoom cloud to you or any end users.

If you provide any suggestions to us or our affiliates, we will own all right, title, and interest in and to the suggestions, even if you have designated the suggestions as confidential. We are entitled to use the suggestions without restriction.

2. Changes.

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 for the xamoom cloud but will use commercially reasonable efforts to continue supporting the previous version of any API changed, discontinued, or deprecated for 6 months after the change, discontinuation, or deprecation. Exceptions are if the continued support of the API would pose a security or intellectual property issue or it is economically or technically burdensome.

3. Security and Data Privacy.

We will implement appropriate and reasonable measures to help you secure your content against accidental or unlawful loss, access or disclosure.

Your content will be stored by us on servers under the “Safe Harbor” regulations and are thus subject to various privacy rules in different geographical regions.

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. 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 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 other 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.

5. Fees, payment and taxes

We calculate and bill fees and charges monthly in advance. We may bill you more frequently if we suspect that your account is fraudulent or at risk of non-payment.

You will pay us the applicable fees and charges for use of the xamoom cloud using one of the payment methods we mention as supported on xamoom’s website. All amounts payable under this agreement are due within 7 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).

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:

  1. 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.
  2. 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.
  3. 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.

7. Termination

After the minimum contract period stated in our order confirmation you may terminate this agreement for any reason by providing us written notice 30 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 xamoom via an inquiry to xamoom’s support staff. If fees will be applicable you will be noticed in advance.

8. Indemnification.

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 xamoom’s side, any compensation will be limited to the amount you actually pay us under this agreement for the service that gave rise to the claim during the 12 months preceding the claim.

10. Modifications to the Agreement.

We may modify this agreement at any time by posting a revised version on xamoom’s website or by otherwise notifying you. The modified terms will become effective upon posting or if we notify you by email, as stated in the email 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 xamoom’s website regularly for modifications to this agreement. We last modified this agreement on the date listed at the end of this agreement.

11. Miscellaneous.

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 xamoom GmbH as follows: Lakeside B01a, A-9020 Klagenfurt, Austria, phone: +43-463-930330, e-mail: mail@xamoom.com. We may update the contact information for notices to us by posting a notice on the xamoom 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.

12. Definitions.

System types:

  • xamoom free users are allowed to create 1 user, 10 spots and 20 pages, as well as upload up to 100 MB. A xamoom free system allows 2.000 content calls per month. The xamoom free system has no API access.
    We reserve the right to place advertisment banners in xamoom free systems.
  • xamoom 50 users are allowed to create 1 user, 50 spots and 100 pages, as well as upload up to 500 MB. A xamoom 50 system allows 5.000 content calls per month. The xamoom 50 system has no API access.
  • xamoom standard users are allowed to create 500 spots. Page creation, media upload and user creation is not limited. A xamoom standard system allows 100.000 content calls per month. The xamoom free system has an API access.
  • xamoom enterprise users have no limitation in spot or page creation, media upload and user creation.  A xamoom enterprise system allows 300.000 content calls per month. The xamoom enterprise system has an API access.

 

xamoom cloud: All software components regarding the service provided by the xamoom GmbH. These include the backend, frontend, all mobile apps, APIs and web services

Spot means a location of physical good on which a marker will be attached.

Marker means a location identifier (e.g. QR code, NFC tag, iBeacon, GPS geoposition). Unless written consent a marker may only used at one singe spot.

API means an application program interface.

Cotent means software (including machine images), data, text, audio, video, images or other content.

End user means any individual or entity 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: 2016-03-09