Xertilox Clients Terms and Conditions (the "Agreement")
By registering on the Xertilox platform, a legally binding contract on the following terms and conditions will be created between Xertilox and the Client which agrees to this Agreement. The Client is referred to as "you" or "your".
The person accepting this Agreement on behalf of a Client must (a) have first created an Individual Xertilox Account in order to register the Client on the Platform and (b) be authorised to do so on behalf of the Client.
DEFINITIONS AND INTERPRETATION
1.1 In these Terms the following definitions apply
Application: means the Application developed, owned and operated by Xertilox, either via the website (www.xertilox.com) or the respective iOS and Android applications;
Charges: Means the licence and / or usage charges to be paid by the Client
Client: Means “you”
Company: Means Xertilox Ltd (registered in England and Wales under registration no 14689245)
Confidential Information: means any and all confidential commercial, financial, marketing, technical or other information or data of whatever nature relating to the Client or Xertilox or their business or affairs (including but not limited to these Terms, data, records, reports, agreements, software, programs, specifications, know-how, trade secrets) in any form or medium whether disclosed or granted access to whether in writing, orally or by any other means, provided to the us or any third party in relation to the performance of the services whether before or after the date of these Terms together with any reproductions of such information in any form or medium or any part(s) of such information;
Data Protection Laws: means: (a) up to and including 24 May 2018, the Data Protection Act 1998 ("DPA") and EC Directive 95/46/EC (the "DP Directive"); or (b) on and from 25 May 2018, the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (General Data Protection Regulation) (“GDPR”) and, in each case, all legislation and regulations enacted in the UK in respect of the protection and transfer of personal data;
Software: means Xertilox platform, its code, its design, its app, APIs
Terms: means these terms of business (including the attached schedules)
THE CONTRACT
Our Products allow an integrated approach using the Software, or instead a non-integrated service offering (eg the Xertilox Platform). This clause 3.1 only applies if you choose to integrate the Software and does not apply if you use a non-integrated service.
You may integrate the Software with your own platform. You are not permitted to share the Software with any other person unless we have agreed otherwise in writing. Xertilox will provide Documentation (including an integration guide) to assist you with the integration process and use of the Xertilox Platform. Please email support@xertilox.com if you require more information.
It is your sole responsibility to ensure that the Software is properly integrated with your platform. Unless otherwise agreed, beyond providing the Documentation, Xertilox does not commit to providing further support with the integration of the Software.
Xertilox may amend the Software at any time in its absolute discretion. You are responsible for the integration of any amended Software with your platform at your sole expense and you must do so: (i) within 90 days of Xertilox notifying you (by email) if a SDK replacement is required by you; or (ii) within 30 days of Xertilox notifying you (by email) if the amendment requires a small amount of integration work by you in the reasonable opinion of Xertilox (eg update to a line of script within the Software). Xertilox will use its reasonable endeavours to inform you of any planned or actual changes to the Software or any other part of the Xertilox Platform relevant to your use of the Software by informing you directly by email or by publishing a notification on the Platform or the development section of the Xertilox website.
Your licence for development using a Xertilox SDK is covered under the Xertilox SDK Development Terms and Conditions, subject to clause 1.1 above. You are responsible for the safe keeping of your API key. If a third party uses your API key you will be responsible and liable to us for their use, including for Transaction Charges incurred.
INTEGRATION AND DOCUMENTATION
Our Products allow an integrated approach using the Software, or instead a non-integrated service offering (eg the Xertilox Platform). This clause 3.1 only applies if you choose to integrate the Software and does not apply if you use a non-integrated service.
You may integrate the Software with your own platform. You are not permitted to share the Software with any other person unless we have agreed otherwise in writing. Xertilox will provide Documentation (including an integration guide) to assist you with the integration process and use of the Xertilox Platform. Please email support@xertilox.com if you require more information.
It is your sole responsibility to ensure that the Software is properly integrated with your platform. Unless otherwise agreed, beyond providing the Documentation, Xertilox does not commit to providing further support with the integration of the Software.
Xertilox may amend the Software at any time in its absolute discretion. You are responsible for the integration of any amended Software with your platform at your sole expense and you must do so: (i) within 90 days of Xertilox notifying you (by email) if a SDK replacement is required by you; or (ii) within 30 days of Xertilox notifying you (by email) if the amendment requires a small amount of integration work by you in the reasonable opinion of Xertilox (eg update to a line of script within the Software). Xertilox will use its reasonable endeavours to inform you of any planned or actual changes to the Software or any other part of the Xertilox Platform relevant to your use of the Software by informing you directly by email or by publishing a notification on the Platform or the development section of the Xertilox website.
Your licence for development using a Xertilox SDK is covered under the Xertilox SDK Development Terms and Conditions, subject to clause 1.1 above. You are responsible for the safe keeping of your API key. If a third party uses your API key you will be responsible and liable to us for their use, including for Transaction Charges incurred.
POLICIES AND DATA PROTECTION
When using any Xertilox products, you must ensure your terms and conditions, privacy policy and any other relevant information are readily available to Customers who use them. You must ensure that all terms and conditions and privacy policies at all times comply with all applicable laws including, in particular, Privacy Laws applying to the receipt or processing of Personal Data by you.
Responsibility for the lawful processing of Customers' Attributes by or on your behalf is your sole responsibility and not the responsibility of Xertilox.
USE OF THE XERTILOX PLATFORM AND THE SOFTWARE
Grant of licence
Xertilox grants to you a non-transferable, non-sub-licensable, royalty free, revocable, non-exclusive licence to use the Xertilox Platform from the date on which Xertilox approves the opening of your Platform Account. This licence is automatically suspended during any period when your use of your Platform Account is suspended and will terminate automatically and irrevocably on termination of this Agreement for any reason.
Xertilox may amend any part of the Xertilox Platform at any time in its absolute discretion with no prior warning to you.
If you are using the Xertilox Platform to outsource any of your obligations under the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 then it is a condition of those Regulations that you remain responsible for failure to apply the measures required under the Regulations.
Restrictions on use
In relation to your use of the Xertilox Platform, either during the term of this Agreement or at any time afterwards, it is a condition of this Agreement that you must:
only use it in compliance with all applicable laws;
only use the Xertilox Platform to receive or exchange Attributes with Customers solely for proper and lawful business purposes and otherwise in accordance with this Agreement;
not use the Xertilox Platform to determine if the Xertilox Platform is within the scope of a patent;
not modify, copy, adapt, translate or create derivative works based on any part of the Xertilox Platform, or attempt to discover any source code or underlying ideas or algorithms or reverse engineer, decompile or disassemble any part of the Xertilox Platform for any purpose;
not attempt to gain, or gain, unauthorised access to, or disrupt the integrity or performance of the Xertilox Platform or any Attributes;
not use the Xertilox Platform, any Attributes or any generated results to directly or indirectly train any machine learning algorithm;
not use the Xertilox Platform to commit, or with the intention to commit, any unlawful, fraudulent, dishonest, threatening, invasive or improper behaviour;
not and are not permitted to sub-license, assign, hold on trust or novate this Agreement to or on behalf of any person;
provide all cooperation and information reasonably required by Xertilox in relation to the Xertilox Platform, including all information and materials reasonably required by Xertilox to make the Xertilox Platform available to you. You must ensure that such information is up-to-date and accurate in all material respects;
not provide a service which is the same as or similar to the Xertilox Platform, or use any part of the Xertilox Platform to build a competitive product or service or copy its features, technology or user interface; or
not act or omit to act in any way that results in damage to Xertilox's business or reputation.
Quality and reliability of Attributes
The number and type of Attributes that can be shared via the Xertilox Platform, and the extent to which Xertilox verifies any Attributes, will be determined by Xertilox in its sole discretion from time to time. Xertilox does not guarantee to provide any particular category of Attribute and may remove or amend any category of Attribute in respect of some or all Individuals and Clients from the Xertilox Platform at any time.
Xertilox will perform its verification, authentication and onboarding (where necessary) of Individuals and/or their Attributes with reasonable skill and care, however Xertilox does not guarantee that any Attributes are true, complete or accurate at any time. Xertilox may change its onboarding or verification processes at any time. Xertilox's liability in relation to the accuracy of Attributes is set out below.
Use of Attributes
You are permitted to use Attributes provided to you by Customers for your proper and lawful purposes.
You may use, process and extract Attributes provided to you by Customers only in accordance with your relevant policies (including your privacy policy) as such policies are amended from time to time and at all times in accordance with applicable laws. You are responsible directly to your Customers to process any Attributes provided to you by us in accordance with all Privacy Laws.
Except with the prior written consent of Xertilox you may not resell, sublicense, lease, share, transfer, make representations about or otherwise make available any Attribute, Receipt, Xertilox timestamped data or any information gleaned from the foregoing to any third party or as part of any joint venture or partnership with any third party. Further, you may not store any Attribute or Receipt in any publicly distributed ledger (such as a public blockchain) without our written prior consent, which we can withhold in our absolute discretion.
Xertilox may, but has no obligation to you, submit identity documents and selfies of suspected fraudsters to law enforcement or government bodies to help those bodies in their detection and prevention of fraud. We may use identity documents submitted to Xertilox by your customers to improve and train our anti-fraud techniques and to maintain a database of suspected fraudsters, all of which will be in line with our privacy policies.
Xertilox has no obligation to make any Third Party Services available via the Xertilox Platform, but we may in our sole discretion choose to do so from time to time. We can withdraw the provision of any Third Party Service via the Xertilox Platform at any time without giving you notice. Use of Third Party Services will be governed solely by the terms and conditions of the relevant Third Party Service provider and we are not liable to you. If you have an issue or a claim with the Third Party Services we may give assistance to you (at your cost) to resolve the issue or pursue the claim. Xertilox does not guarantee that any Third Party Service is suitable for any particular purpose and as between Xertilox and you the Third Party Service is provided “as is” and we disclaim any and all implied or express representations, warranties, terms or conditions in connection with the Third Party Service.
CHARGES
Transaction Charges shall be calculated in accordance with either the Pricing Schedule or the prices we have agreed with you in your order form.
Xertilox may invoice you monthly in arrears at any time after the last day of the calendar month in which the Transaction Charges have been incurred. Xertilox reserves the right to invoice you for Transaction Charges incurred in any month in the next month or any subsequent month if you have had a low volume of Transactions and/or your invoice is of low value. Xertilox also reserves the right to request advance payment of Transaction Charges for any reason, including if your credit score drops or you have a history of making late payments to us.
All Transaction Charges are payable in pounds sterling and are exclusive of VAT.
Payment card details may be entered and saved in Platform to automatically pay for future invoices. Any card details entered are stored by our payment partner, Stripe, who will apply a charge to the saved payment card upon issuance of a new invoice. If you do not have a saved payment card in Platform, you shall receive a payment link, requiring you to enter your payment card details for each invoice issued to you. You must settle any outstanding invoices within 14 days of the date of the invoice unless agreed otherwise in your personalised order form.
If you fail to make any payment due to Xertilox under this Agreement by the due date then, without limiting Xertilox's other remedies, we may charge interest on the overdue amount at 4% per annum above Barclays Bank's sterling base rate from time to time. Interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, including before and after judgment. You must pay the interest together with the overdue amount.
You must pay all amounts due under this Agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Xertilox may at any time, without limiting its other rights or remedies, set off any amount owed to it by you against any amount payable by Xertilox to you.
Xertilox may amend the Pricing Schedule at any time, on no less than 30 days' prior written notice to you. Notice will be given by email to you or at Xertilox.com. If you object you may terminate this Agreement in accordance with your rights below. Continued use by you is taken as acceptance of the amended Pricing Schedule.
SUSPENSION AND TERMINATION
This Agreement will continue in force from the date on which you accept this Agreement until it is terminated.
Rights to suspend
In addition to Xertilox's right to suspend access to your Platform Account during the verification process, Xertilox reserves the right to suspend for an indefinite period:
your use of the Xertilox Platform or the receipt of Attributes if any Individual with access rights to your Platform Account is suspended from their Individual Xertilox Account;
your use of the Xertilox Platform or the receipt of Attributes if access to any other Platform Account associated with you is suspended or terminated for whatever reason;
your use of the Xertilox Platform or the receipt of Attributes if you fail to make any payment due to Xertilox by the due date for payment. Xertilox reserves the right to request advance payment from you after payment is made before your access to the Xertilox Platform is resumed;
your use of the Xertilox Platform or the receipt of Attributes if Xertilox discovers or suspects that your terms of use or privacy policy are unlawful or do not provide adequate protection to Customers, or if you have breached your own terms of use or privacy policy with respect to Customers or if you are being investigated, or are awaiting investigation, by the Information Commissioner's Office or any other regulatory or governmental body in any jurisdiction;
your use of the Xertilox Platform or the receipt of Attributes if Xertilox suspects that you have committed a material breach of any term of this Agreement whilst it investigates that suspected breach;
your use of the Xertilox Platform or receipt of Attributes if you do not respond in a timely manner to a query from us or one of your Customers concerning your use of the Xertilox Platform or Attributes received from Customers; and
your use of the Xertilox Platform or use of Attributes for any other reason whatsoever if Xertilox believes, in its absolute discretion, that there is reasonable cause to do so.
Xertilox will take reasonable steps to notify you of any planned or actual suspension of your Platform Account but will not be in breach of this Agreement if it does not do so.
Rights to terminate this Agreement
You may terminate this Agreement immediately at any time on written notice to Xertilox.
We may terminate this Agreement at any time on 90 days' notice.
Either party may terminate this Agreement with immediate effect on written notice to the other party if the other party commits a material breach of this Agreement or if a force majeure event continues for more than 30 days.
Xertilox may terminate this Agreement with immediate effect if:
you breach or exceed the conditions of use of the Xertilox Platform;
where you are a sole trader, you breach our Consumer Terms and Conditions. We may also terminate with immediate effect if a director or senior person at your Client breaches our Consumer Terms and Conditions;
you suffer or incur any form of insolvency or enter into an arrangement with your creditors;
you fail to pay any amount due under this Agreement on the due date for payment;
you have provided incomplete or inaccurate information to Xertilox during the account set-up process or fail to maintain such information on a timely basis;
a territory you operate in introduces a data localisation requirement that affects the Attributes we store or where we must store them or introduces any law that could require Xertilox to build a ‘back door’ to any data Xertilox stores or processes. Alternatively, Xertilox may elect on notice to you to restrict your use of Age Verification by territory rather than terminate the Agreement;
You are or become a competitor of Xertilox or the Xertilox Platform, or that you control any person or Client which is a competitor of Xertilox or the Xertilox Platform. Xertilox shall determine if you are a competitor in its sole discretion; or
Xertilox believes, in its absolute discretion, that your continued use of our product is causing harm to Individuals, our product to others or our reputation or goodwill.
Termination of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination.
Any provision of this Agreement that is intended to come into or continue in force on or after termination of the Agreement shall remain in full force and effect notwithstanding termination.
Consequences of termination
If this Agreement is terminated by either party for any reason:
All rights granted to you under this Agreement shall cease;
you shall stop using the Xertilox Platform, the Software and your Platform Account;
you shall pay all outstanding amounts due by you to Xertilox (with interest, if applicable), whether or not Xertilox has submitted invoices relating to those amounts to you. The invoices shall be payable by you immediately on receipt; and
you shall permanently delete, destroy or return to Xertilox (at Xertilox's election) all copies of the Software and Documentation in your possession or control and on request shall promptly provide a signed declaration from a director that this paragraph has been complied with.
Licence and publicity
You acknowledge that all Intellectual Property Rights in or arising out of or in connection with the Xertilox Platform, the Attributes, Receipts and the Documentation is owned by Xertilox, and you do not have any rights in or to the Xertilox Platform, the Attributes, Receipts or the Documentation, other than the limited licence granted to you under this Agreement.
You must not do and must procure that no person on your behalf does anything which could infringe the Intellectual Property Rights of Xertilox including any of the Intellectual Property Rights arising from or in connection with the Xertilox Platform and/or the Documentation or otherwise pursuant to the terms of this Agreement. Any and all rights not expressly granted to you under this Agreement shall be reserved to Xertilox.
You must not do and must procure that no person on your behalf does anything which could infringe the Intellectual Property Rights of any third party arising from or in connection with your use of the Xertilox Platform.
By entering into this Agreement, you agree that Xertilox may use your company name, trading name, company contact details and logo(s): (a) on the Xertilox app or website to show the Clients who use Xertilox (including in a searchable database of Clients); (b) in presentations, conferences and promotional materials where we showcase Clients who use Xertilox; and (c) in public announcements about acceptance of this Agreement and your use, or intended use, of the Products. We will ask your consent for uses beyond this. Our searchable database on our website may also list various other of your information and contact information at our discretion. If you object to information about your Client and key contact information being included in a searchable database you must notify us in writing within 14 days of acceptance of this Agreement.
Whenever you mention your identity or age verification publicly you must state that Xertilox is the provider or use the phrase "powered by Xertilox".
You may not post a link to www.Xertilox.com on your website, social media channels, online materials or advertisements without the prior consent of Xertilox (by email is fine), which Xertilox may withhold in its absolute discretion.
Xertilox warrants to you that your use and access of the Xertilox Platform shall not infringe the Intellectual Property Rights of any third party, provided your use of the Xertilox Platform is strictly in accordance with this Agreement. If the use of any Intellectual Property Rights comprised in the Xertilox Platform are determined by a court of competent jurisdiction to infringe the Intellectual Property Rights of any third party, Xertilox's sole liability to you will be to do any of the following at Xertilox's discretion: (a) securing a licence or other right to continue use of the relevant third party intellectual property right as part of the Xertilox Platform; (b) replacing the relevant part of the Xertilox Platform; and (c) suspending or terminating provision of the relevant part (or, if necessary, the whole) of the Xertilox Platform.
LIABILITY
Accuracy of Attributes
Xertilox will use its reasonable skill and care in verifying or authenticating (including when using the Products in which Attributes are estimated) Attributes from Individuals, but will have no liability to you, and hereby disclaims to the fullest extent possible under applicable laws all implied representations, warranties, conditions and terms in respect of the accuracy of any Attributes (including Third Party Attributes), whether verified by Xertilox or not; all Attributes are acquired and used by you at your own risk. Xertilox is not liable to you if the data received by Xertilox is inaccurate in any way.
Xertilox gives no representation, warranty or undertaking in respect of the suitability of the Attributes or any combination of them for any purpose whatsoever, including any decisions made or processes (whether automated or otherwise) used by you to enter into, develop, progress, suspend, terminate, reduce or end any agreement, arrangement, relationship, licence or transaction, or to provide any product, service, membership, access or other facility to any person whatsoever, all of which you undertake at your sole risk. The Products may be used globally and in many sectors but we do not warrant that the Attributes or any Product will be compliant with, or make you compliant with, laws or regulations which may be applicable to you. Availability and functionality of the Xertilox Platform
Xertilox will use all commercially reasonable endeavours to ensure that the Xertilox Platform is generally accessible and usable by Clients and Individuals. However, Xertilox gives no guarantee as to the availability of the Xertilox Platform or any component of the Xertilox Platform, or in relation to the capacity, latency, responsiveness, accuracy or proper operation of the Xertilox Platform. If Xertilox becomes aware of any defect affecting the operation of the Xertilox Platform, we will take reasonable steps to restore the proper operation of the Xertilox Platform in all material respects as soon as reasonably practicable and within Xertilox's available resources, but Xertilox gives no guarantees in relation to response times, fix times or otherwise.
Unless agreed otherwise, Transaction Charges are only payable by you when Attributes are actually exchanged via the Xertilox Platform. Accordingly, Xertilox will not be liable to pay (or repay) to you any amount by way of compensation for any defect or availability of the Xertilox Platform.
Xertilox monitors onboarding experience and wait times by country and document type. For Digital Documents, if there is a high number of Individuals within a certain group (eg document type from a specific country) being processed for your service and you are either (i) not accepting those Individuals onto your service or (ii) not targeting those Individuals specifically, then Xertilox reserves the right to withdraw support for that group in order to protect other Individuals' experience with the Xertilox app. If there are a large number of Individuals using a certain document type that Xertilox cannot automate data extraction and face match checks on, and this risk was not agreed with Xertilox in advance, then Xertilox reserves the right to take mitigating action including deprioritising the checks, withdrawing support for that document.
GENERAL LIABILITY
Except as expressly stated in this Agreement, Xertilox provides the Xertilox Platform and Software “as is” and all representations, warranties, undertakings, conditions and other terms which might otherwise be implied into this Agreement are hereby excluded to the fullest extent permitted by law. Xertilox gives no representation, warranty or undertaking in respect of the Xertilox Platform or otherwise in connection with this Agreement except as expressly set out in this Agreement.
Nothing in this Agreement limits or excludes the liability of either party for: (a) death or personal injury resulting from its negligence; (b) fraud or fraudulent misrepresentations; (c) any loss that may not be limited or excluded under applicable law; (d) any Transaction Charge due; or (e) under an indemnity given in this Agreement.
Subject to clause 9.2, Xertilox shall not be liable to you, whether in contract, or not (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement for any:
loss of profits;
loss of sales or business;
loss of agreements or contracts;
loss of anticipated savings;
wasted expenditure;
loss of use or corruption of software, data or information;
losses arising from enforcement action by regulators, including any fines;
loss or damage to goodwill; and
any indirect, consequential or incidental loss.
Subject to clause 9.3, the maximum aggregate liability of Xertilox to you, any of your Affiliates or your Customers, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise shall be capped at the higher of: (i) a sum equal to 100% of the Transaction Charges you have actually paid to us in the prior 12 months to the breach; and (ii) £2,000.
The parties both agree that the above limitations and exclusions of liability reflects the commercially agreed allocation of risk between the parties for the Xertilox Platform, taking into account the Transaction Charges, and that the above limitations and exclusions of liability are reasonable and proportionate.
You indemnify on demand Xertilox, our directors, our employees and our contracting parties against any and all losses, liabilities, costs (including professional costs), expenses, damages, interest and other sums suffered or incurred by or on behalf of Xertilox arising directly or indirectly from any breach of this Agreement by you.
FORCE MAJEURE
Xertilox shall not be in breach of the Agreement nor liable for any delay in performing, or failure to perform, any of its obligations under the Agreement where such delay or failure results from events, circumstances or causes beyond its reasonable control including but not limited to failure of the internet, power outages, failure of third party networks, failure of AWS or any other cloud services, industrial actions (but not industry action affecting Xertilox staff), war, pandemics, civil unrest and terrorist activity. Xertilox may take mitigating measures to reduce the impact of a force majeure event.
CONFIDENTIALITY
Each party shall, for the duration of this Agreement and thereafter, keep confidential all information of a confidential nature (including pricing, trade secrets and information of commercial value) which may become known to such party and which relates to or is owned by the other party or any of its Affiliates. Neither party shall use the other party’s confidential information for its own purposes (other than implementation of this Agreement) nor, without the prior written consent of the other, disclose it to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority). The foregoing obligations shall not apply (or shall cease to apply) if that information: (a) is public knowledge or already known to such party at the time of disclosure; or (b) subsequently becomes public knowledge other than by breach of this Agreement; or (c) subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any confidential information.
No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as otherwise permitted in this Agreement or as required by a binding order from any governmental or regulatory authority which has the authority to force disclosure, any court or other authority of competent jurisdiction, providing that the disclosing party is given a reasonable time to dispute the order if possible.
GENERAL
Waiver: No failure or delay by a party to exercise in whole or part any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy.
Entire agreement: This Agreement contains the entire agreement between the parties relating to the use of the Xertilox Platform by you when this Agreement was accepted by you to the exclusion of any other agreement or arrangement. Neither party has relied on any prior agreement, document or representation (including innocent and negligent misrepresentations) in entering into this Agreement. Nothing in this clause shall operate to exclude or limit a party’s liability for fraud or fraudulent misrepresentation.
The parties agree that the provisions of Regulation 9 of the Electronic Commerce (EC Directive) Regulations 2002 shall not apply to the Agreement.
Conflict of terms: If there is any conflict between this Agreement and any Individual Terms and Conditions, the terms of this Agreement shall prevail. If there is any conflict between the Xertilox Website Terms of Use and this Agreement, the terms of this Agreement shall prevail.
Severance: If any term of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this section shall not affect the validity and enforceability of the rest of the Agreement.
Third parties: Except for Xertilox's Affiliates, which may enforce the terms of this Agreement, a person who is not a party to the Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of the Agreement.
Notices: Any notice or other communication given to a party under or in connection with the Agreement shall be in writing through the Platform, which shall be deemed to have been received 1 business day after transmission, or by email which for you shall be to the email address you used to create your account on the Platform and for us shall be the email address provided below, which shall be deemed to have been received immediately after transmission provided that no automatically generated email communicating an out of office response or failed delivery is received by the sender.
Amendment of this Agreement: Xertilox is entitled to amend this Agreement at any time and to add new or additional terms or conditions on your use of the Xertilox Platform on 30 days’ notice given on either our website or app, or otherwise communicated to you. Any amendments and additional terms will be effective on expiry of the notice and incorporated into this Agreement. Your continued use of the Xertilox Platform will be deemed acceptance of such updated terms and conditions.
References in this Agreement: If we refer to a statute or statutory provision, this reference includes amendments or re-enactments of that legislation, and any subordinate legislation. Any phrase introduced by the terms including, include, or in particular, or any similar expression, are illustrative and do not limit the words preceding those terms.
Subcontracting and Assignment: Xertilox may subcontract or assign any of its rights and obligations in this Agreement to its Affiliates, provided that the Xertilox entity you are contracting with remains directly responsible to you.
Contracting Party, Governing Law, Notices and Jurisdiction
you are contracting with Xertilox Ltd, a company registered in England and Wales whose company registration number is 14689245and whose registered office is at Ash Tree House, 48 Sutton Mill Road, Potton, SG19 2QB, United Kingdom. Our registered VAT number is GB435985551. You can contact us by writing to us at: info@xertilox.com.
this Agreement, and any dispute or claim arising out of or in connection with it (including non-contractual disputes or claims) shall be governed by, and construed in accordance with the laws of England; and
if we are bringing court action against you then the courts of England and Wales shall have non-exclusive jurisdiction and if you are bringing court action against us then the courts of England and Wales shall have exclusive jurisdiction, in each case to settle any dispute or claim that arises out of or in connection with this Agreement or your use of the Xertilox Platform.
Annex 1 - the Platform
The Platform is an online platform where entities can apply to be a verified Client and where Clients can obtain API keys, configure the Products and view and manage Receipts. You may access the Platform at Xertilox.com or such other domain address as updated by Xertilox and notified to you from time to time. You may use the Platform to create and administer Pages, Applications to facilitate Transactions with your Customers.
Setting up your Cliental Account
To set up or access a Platform Account an Individual must be authorised by you to create a Platform Account on your behalf. You may subsequently authorise additional Individuals to access your Platform Account and determine the access permissions of each such Individual.
You warrant and represent that the Individual who establishes the Platform Account has the authority to bind you by agreeing to this Agreement.
We strongly recommend that you appoint a second administrator to your Platform Account. Particularly if you are a sole trader or your Client only has one director. This is because the security of Digital ID means that if you are unable to use Digital ID to log in to your Platform Account for any reason (due to your incapacity for example) we do not have the ability to access your account.
You must ensure that any information relating to your Client is true and accurate in all material respects at the time that it is supplied to Xertilox. You must use your best efforts to keep all information about your Client on the Xertilox Platform up to date at all times.
Verification of your Platform Account
The Individual applying for your Platform Account must enter the information required by Xertilox at the account creation page. Xertilox may request further information from you about your Client, both after as well as before approving your Platform Account. Xertilox may use third party databases (such as the UK's Companies House) to verify the information provided by an Individual about you.
Until Xertilox approves your application for a Platform Account your status will appear as pending. Approval of an application for a Platform Account will in every case be at Xertilox's sole discretion and if we reject your application your Platform Account may be suspended or closed.
Xertilox may suspend your Platform Account if you provide insufficient or inaccurate information, if Xertilox is unable to verify any information provided about you, if you do not provide additional information when requested by Xertilox, if your account registration appears suspicious or Xertilox has any other concerns about you, your identity or the purpose for which you intend to use a Platform Account.
Data Protection, licence and liability
When storing Attributes for you on the Platform we are acting as your Data Processor.
You are responsible for all content (including all underlying code, data, links and functionality) forming part of any Page or Application.
You hereby grant to Xertilox an irrevocable, non-exclusive, royalty-free, worldwide licence to receive, store and use all Pages or Applications and all content of Pages and Applications for the purposes of providing the Xertilox Platform to you.
Receipts of your Transactions may be stored on the Platform or may be sent directly to you. Xertilox’s current intention is not to delete these Receipts but Xertilox reserves the right to change this policy in the future. Unless agreed otherwise, Xertilox shall not charge for the retention of Receipts but Xertilox reserves the right to charge in the future dependent on factors which may include length or volume of storage, changes in legislation and frequency of access of Receipts. You should export your Receipts and should not solely rely on Xertilox continuing to store Receipts for you, even if we have agreed to. Xertilox shall not be liable to you under contract, tort, negligence or statute if we intentionally delete your Receipts (unless we have expressly agreed to store them for you), your Receipts are lost or corrupted or we cannot access your Receipts for any reason.
Content Standards
You must ensure that material on the Platform:
is accurate and complies with any applicable laws;
does not contain any information which is defamatory, obscene, inflammatory or discriminatory based on race, sex, religion, nationality, disability, sexual orientation or age;
does not contain sexually explicit material or violence or promote any illegal activity;
does not infringe the Intellectual Property Rights of any other person;
is not likely to deceive any person;
does not breach any legal duty owed to a third party;
is not used to impersonate any person or Client, or to misrepresent someone’s identity or affiliation with any person; and
does not advocate, promote or assist any unlawful act including copyright infringement or computer misuse.
Use of the Platform, Pages, Applications and the Xertilox Platform
You must procure that authorised Individuals only use the Platform (and any information contained in it, including Attributes and Receipts) for proper and lawful business purposes and in accordance with the terms of this Agreement.
You are responsible for terminating access to your Platform Account for any Individual that you no longer want to have access to the Platform for any reason. You must do this via the Platform.
Anonymised data indicating the number and type of time stamped Attributes exchanged with Customers will be accessible by Xertilox for use in accordance with and for the purposes of this Agreement and the provision of the Xertilox Platform to you.
Security
You must access the Platform using the Individual Xertilox Account of an authorised Individual or otherwise using login details as may be provided to you by Xertilox from time to time.
Only an Individual who is authorised with the necessary permissions to access the Platform may access the Platform on your behalf.
You are responsible for any loss or damage resulting from misuse of a Platform Account or misuse of any Individual Xertilox Account in connection with your Platform Account, or use of login details supplied to you by Xertilox, by any Individual who is authorised with the necessary permissions to access the Platform or by any third party, either with or without your knowledge. You shall notify Xertilox immediately if you notice or suspect any unauthorised use of your account, misuse of login details, or any other breach of security.
Adding links within the Platform
You may add url links to your Page and Application login screens within the Platform, provided you do so in a way that is fair and legal and does not damage Xertilox's reputation.
You may not display links in such a way so as to suggest any form of association, approval or endorsement by Xertilox where none exists.
Xertilox reserves the right to withdraw the linking functionality without notice in its absolute discretion.
Annex 2 to the Terms - Data Processing Annex
This Schedule 2 applies in accordance with clause 2.3.
Xertilox shall, as a Data Processor (known as a ‘service provider’ in some other Privacy Laws):
only use the Personal Data for the legitimate purposes of performing its obligations under this Agreement and for no other purposes unless instructed to do so by you;
act only on written lawful and reasonable instructions from you in relation to the Personal Data;
comply with all the relevant requirements of the Privacy Laws;
not sub-contract the processing of any of the Personal Data to any third party without your prior consent. You agree that Xertilox may use its Affiliates, Amazon Web Services.
ensure that appropriate technical and organisational security measures are in place against unauthorised or unlawful processing of the Personal Data and against accidental loss or destruction of, or damage to, the Personal Data in accordance with the Privacy Laws;
take reasonable steps to ensure the reliability of any of its employees, agents and contractors who have access to the Personal Data;
only transfer Personal Data outside of the UK / European Economic Area (as applicable) in compliance with Privacy Laws;
assist you with an Individual’s rights request to the extent we can;
either delete Personal Data as soon as the relevant service is provided, or provide you with the ability to export or delete the Personal Data;
reasonably demonstrate compliance with this Schedule 2 on request by you; and
inform you promptly on becoming aware of a breach of security in relation to your Personal Data.
Xertilox shall use its reasonable endeavours to assist, as needed and as far as we technically can, you to demonstrate your compliance with your obligations under Privacy Laws (in connection to this Agreement) relating to:
security;
breach notifications;
data protection impact assessments; and
prior consultation