Terms of Service

1. Introduction

These General Terms apply to all services delivered by Xamify. By accessing and using Xamify, you accept and agree to be bound by these Terms of Service.

2. Interpretation

These General Terms and each Service Agreement incorporate the defined terms found in clause 42 of this document.

3. Service Agreements

(a) Unless otherwise agreed, a Service Agreement is formed when Xamify accepts a Service Order from you.

(b) A Service Agreement comprises:

• Any Special Terms;
• A Service Order;
• A Statement of Work (if applicable); and
• These General Terms.

(c) In case of inconsistency between documents in clause 3(b), the order of precedence of these documents shall apply.

4. Acceptance

You may accept these terms by clicking "Accept" or "Agree" on our website, by creating an account, or by using our services. Continued use of the service after changes constitutes acceptance of the modified terms.

5. Charges and Payment

(a) You must pay all charges applicable to the services.

(b) Charges apply as specified in the Service Order or, where not specified, in accordance with the applicable rates schedule.

(c) Payments must be made by the due date on the invoice, without setoff or deduction.

(d) Overdue amounts may incur interest at a reasonable rate as permitted by applicable law.

6. Billing Disputes

You may dispute a charge within 1 month after the date of the invoice by contacting us at info@xamify.com.au.

7. Relationship

Xamify operates as an independent contractor, and nothing in these General Terms or any Service Agreement creates a partnership, joint venture, or agency relationship between the parties.

8. Entire Agreement

The documents that make up a Service Agreement in clause 3 constitute the entire agreement between the parties, superseding all previous agreements, understandings, commitments, representations, and warranties relating to that subject matter.

9. Variation

A Service Agreement may only be varied by written agreement or electronic acceptance by both parties, including notifications through the Xamify platform.

10. Assignment

(a) Neither party may assign or novate a Service Agreement without the prior written consent of the other party, which will not be unreasonably withheld.

(b) Xamify may assign or novate a Service Agreement without your prior written consent if it sells or restructures any part of its business or shares.

11. No Waiver

Failure or delay by either party in exercising any right under the Service Agreement does not constitute a waiver of that right.

12. Notices

(a) Xamify may send notices via electronic messaging.

(b) Any other notices required under the Service Agreement must be in writing and sent to the relevant party's contact address.

13. Governing Law and Courts

These General Terms and any Service Agreement are governed by the laws of Australia. The parties submit to the non-exclusive jurisdiction of the courts in Australia.

14. Term of Service Agreements

(a) A Service Agreement:

• Starts on its Service Commencement Date;
• Continues for the Contract Term, after which it automatically renews for successive 12-month terms unless terminated earlier in accordance with the Service Agreement.

(b) Upon renewal, the Service Agreement will be governed by the then-current terms as published on Xamify's website.

15. Service Commencement

Xamify will commence delivery of services on or within a reasonable time after the date specified in the Service Agreement or the expiry of 14 days from the date of the Service Agreement, whichever is later.

16. Service Standards

(a) Xamify will provide the services with due care and skill, in accordance with the applicable Service Agreement and laws.

(b) While Xamify endeavors to avoid interruptions, it does not guarantee error-free services and is not liable for interruptions caused by third-party infrastructure.

(c) Xamify will use reasonable efforts to schedule maintenance at times that minimize disruption.

17. Service Suspensions

Xamify may suspend services in whole or part:

• If required to comply with the law;
• To protect people, property, or network integrity;
• If credentials are compromised;
• In case of emergencies;
• For scheduled maintenance (with at least 3 days' notice);
• If you or any authorized user breaches Xamify's Acceptable Use Policy;
• If you cease carrying on business;
• If you do not cure a default within 14 days of receiving notice; or
• To investigate any potential breach of the Service Agreement.

18. Price Variations

(a) Xamify may vary charges upon expiry of the current contract term with at least 90 days' written notice.

(b) During the contract term, charges may be varied if you request changes to the quantity or nature of the services.

19. User Responsibilities

19.1 You must:

• Comply with the terms of the Service Agreement;
• Ensure services are not used contrary to law or in a way that causes a nuisance;
• Comply with all applicable laws, including privacy laws;
• Provide all necessary information and cooperation to Xamify for the purposes of the Service Agreement;
• Follow Xamify's reasonable directions;
• Maintain all permissions required for using the services;
• Comply with Xamify's Acceptable Use Policy;
• Respond promptly to Xamify's communications;
• Not solicit Xamify's employees or contractors; and
• Ensure your personnel do not breach the Service Agreement.

19.2 Xamify must:

• Comply with the terms of the Service Agreement;
• Comply with all applicable laws, including privacy laws;
• Provide you with appropriate information and cooperation as needed;
• Maintain all permissions and licenses required for providing the services;
• Respond promptly to your communications; and
• Not solicit your employees or contractors.

20. Termination

20.1 Either party may terminate a Service Agreement by providing at least 90 days' notice prior to the expiry of the current contract term.

20.2 Either party may terminate a Service Agreement by written notice if:

• The other party is in default and fails to remedy the default within 14 days of receiving notice;
• The other party is subject to an insolvency event; or
• The parties cannot agree on a change request.

20.3 You may terminate a Service Agreement if the service is subject to repeated critical incidents caused solely by Xamify.

21. Taxes

(a) Charges are exclusive of applicable taxes unless otherwise stated.

(b) Xamify may invoice, and you must pay, applicable taxes in addition to the charges.

22. Confidentiality

Each party must keep the other's confidential information private, except for disclosures to its staff, contractors, and professional advisers who reasonably need to know it, authorized by the Service Agreement, or required by law. The disclosing party must take reasonable steps to ensure that the information remains confidential.

23. Indemnities

23.1 You agree to indemnify Xamify against any loss suffered by Xamify arising from your negligent or wrongful acts, material breach of the Service Agreement, or any claim arising from your use of the services, except to the extent the claim arises from Xamify's negligence or breach.

23.2 Xamify agrees to indemnify you against any claim that the services infringe the IP rights of a third party, except where the claim is caused by your actions or breach of the Service Agreement.

24. Liability

24.1 Nothing in these General Terms excludes or limits your rights as a consumer under applicable laws.

24.2 TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS OR REVENUE, BUSINESS INTERRUPTION, OR DATA LOSS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

24.3 The total aggregate liability of either party for any claims arising from a Service Agreement is capped at the amount paid by you under the Service Agreement for the relevant services in the preceding 12 months.

25. Disputes

(a) Each party must appoint a senior officer to negotiate and resolve any dispute.

(b) If negotiations fail within 14 days, the dispute may be referred to mediation before an independent mediator, with costs shared equally by the parties.

(c) Despite a dispute, the parties must continue performing their obligations under the Service Agreement.

26. Force Majeure

Xamify is excused from its obligations under the Service Agreement to the extent that a force majeure event prevents or hinders service delivery.

27. Data and Intellectual Property

27.1 You retain ownership of your data. Xamify will handle your data per the Privacy Policy and applicable laws.

27.2 All intellectual property (IP) rights in Xamify and its services are owned by Xamify or its licensors. You must not infringe or commercialize these rights.

27.3 You retain ownership of your data, but Xamify owns any customizations, modifications, enhancements, and derivative works related to the services.

27.4 Xamify owns all trademarks associated with its services. You may not use any trademark without prior written consent from Xamify.

28. Security

(a) Xamify will implement security measures as set out in its Privacy Policy and security documentation.

(b) You must maintain the security and confidentiality of usernames and passwords.

(c) You acknowledge that internet connections carry inherent security risks, and it is your responsibility to implement appropriate measures to protect your data.

29. Third-Party Services

(a) Xamify may use third-party services to deliver its platform and will ensure compliance with relevant privacy laws.

(b) If you integrate third-party services, you are responsible for assessing their security and privacy measures.

(c) Xamify may disclose your data to third-party service providers as necessary to deliver the services.

30. Changes to Terms

We may update these Terms of Service from time to time. We will notify you of any changes by posting the new terms on this page and updating the "Last Updated" date. Continued use of the service constitutes acceptance of any changes.

31. Contact Information

If you have any questions about these Terms of Service, please contact us:

32. Definitions