Terms of Service
This Agreement ("Agreement") is between Xaana.Ai ; and the end user customer (individual or entity) that has set up an account on .com (“Account”) and has requested, through that Account, to be presented with the terms of this Agreement for acceptance ("you").
Read this agreement carefully. By either clicking on the “create account”, or similar button or installing or using all or any portion of the software (as defined below), you are accepting all of the terms and conditions of this agreement. You agree that this agreement is enforceable like any written negotiated agreement signed by you. If you do not agree to all of these terms and conditions, do not download, install or use all or any portion of the software. You are not licensed to use to the software unless you accept the terms of this agreement. If you are purporting to accept this agreement as an employee, contractor, or agent of a corporation, partnership or other legal entity, then you must be authorized to sign for and bind such entity and you represent that you are authorized to do so. The licenses granted under this agreement are expressly conditioned upon acceptance by such authorized personnel.
Core: means either a physical CPU core or which is a logical partition of a physical CPU core.
Documentation: means any supporting technical documentation, specification, or user manuals that may be provided with the Software or that may be made available via the Xaana website (https://developer.xaana.ai/) which may be updated by Xaana from time to time.
Effective Date: means the date on which the Software is first made available to you for download (if you are choosing an on-premises trial) or for use via the cloud (if you are choosing to access the Software on a SaaS basis).
Software: means the Xaana software product(s), including, if applicable, cloud software products, which you have selected for a trial hereunder, and that are provided in connection with this Agreement in object code form. Unless otherwise noted, the Software and Documentation are referred to collectively herein as "Software".
2.1 Grant of License. Subject to all of the terms and conditions of this Agreement, Xaana grants you a limited, non-exclusive, non-transferable, non-sub-licensable license to use the Software (i) during the term stated below, (ii) subject to the number of Cores stated below, (iii) internally (iv) in a development environment, and (v) solely for the purpose of quality assurance, testing, and staging. The Software may not be used in a live production environment under this Agreement. Any other use of the Software is expressly prohibited.
2.2 Installation and Copies. Xaana shall make the Software and Documentation available for download in electronic form (for on-premise) or through your Account (for cloud offerings). You may copy and install or access the Software in your development environment on up to ten Cores (if you are choosing an on-premise trial) or per your account provisioning (if you are choosing to access the Software on a SaaS basis).
2.3 License Restrictions. You shall not:
(a) copy the Software or any portion thereof;
(b) distribute, sell, rent, lease, sub-license or transfer any copies of the Software, or portions thereof, to a third party or allow a third party to use the Software;
(c) modify, decompile, disassemble or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever if the Software to the extent the Software is not provided in source code form (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions);
(d) use the Software to develop services or products for sale or include any components of the Software in any product;
(e) use any portion of the Software to create a competitive service, product or technology;
(f) make the functionality of the Software available to the public in any manner;
(g) use the Software in a production environment;
(h) remove any product identification, proprietary, copyright or other notices contained in the Software; or
(i) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software.
Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Xaana and its suppliers have and will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Software and all copies, modifications and derivative works thereof. You acknowledge that you are obtaining only a limited license right to the Software and no ownership rights are being conveyed to you under this Agreement or otherwise.
No payment from you shall be due for any Software licensed hereunder.
5. Term and Termination.
5.1 Term. This Agreement is effective as of the Effective Date and will continue for thirty (30) calendar days thereafter and is not subject to renewal or extension. In addition, Xaana may terminate this Agreement and/or seek injunctive relief immediately upon any breach or threatened breach by you. In addition, either party may terminate this Agreement if the other party:
(a) ceases operation without a successor; or
(b) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
5.2 Effect of Termination. Upon any expiration or termination of this Agreement, you shall cease any and all use of any Software and destroy all copies thereof, and if applicable Xaana may discontinue your Account access to the Software licensed hereunder.
5.3 No Obligation to Enter Into Further Agreement. Nothing herein obligates either party to enter into any further agreement with the other party.
5.4 Survival. Sections 2.3 (License Restrictions), 3 (Ownership), 4 (Payment), 5 (Term of Agreement), 6 (No Warranty), 8 (Limitation of Remedies and Damages), 9 (Confidential Information), 10 (Export Compliance) and 11 (General) shall survive any termination or expiration of this Agreement.
6. DISCLAIMER OF WARRANTIES.
The software is provided "as is," without warranty of any kind, and xaana disclaims all warranties, whether express, implied, statutory, or otherwise, including, but not limited to warranties of title, non-infringement, merchantability, or fitness for a particular purpose. You may have other statutory rights; however, to the full extent permitted by law, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.
7. No Support.
Xaana shall have no support or maintenance obligations with respect to the Software hereunder. Any additional updates, upgrades, bug fixes, etc., that Xaana voluntarily provides to you hereunder shall be “Software” hereunder and subject to this Agreement.
8. Limitation of Remedies and Damages.
In no event shall Xaana be liable for any loss of use, lost data, failure of security mechanisms, interruption of business, or any indirect, special, incidental, or consequential damages of any kind (including lost profits), arising out of or related to this agreement or your use of the software, regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, even if informed of the possibility of such damages in advance. Notwithstanding any other provision of this agreement, Xaana's total aggregate liability under this agreement shall be limited to proven direct damages caused by Xaana’s sole negligence in an amount not to exceed $1,000. The parties agree that the limitations specified in this Section 8 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
9. Confidential Information.
Any Software, Documentation or technical information provided by Xaana (or its agents) shall be deemed "Xaana Confidential Information" without any marking or further designation. Except as expressly authorized herein, you will hold in confidence and not use or disclose any Xaana Confidential Information. You acknowledge that disclosure of Xaana Confidential Information would cause substantial harm to Xaana that could not be remedied by the payment of damages alone and therefore that upon any such disclosure by you, Xaana shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.
11. Export Compliance.
You acknowledge that the Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments. You shall not, and shall not allow any third-party to, remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department's Table of Denial Orders or U.S. Treasury Department's list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You agree to the foregoing and warrant that you are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Software is further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.
12.1 Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Xaana may assign this Agreement to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Xaana's assets or voting securities. You may not assign or transfer this Agreement, in whole or in part, without Xaana's written consent. Any attempt to transfer or assign this Agreement without such written consent will be null and void.
12.2 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
12.3 Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the California State and United States federal courts located in San Francisco, California, and both parties hereby submit to the personal jurisdiction of such courts.
12.4 Attorneys' Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys' fees and costs in connection with such action.
12.5 Notices and Reports. Any notice or report hereunder shall be in writing. If to Xaana, such notice or report shall be sent to Xaana at the address above to the attention of "Legal Department". If to you, such notice or report shall be sent to the address you provided prior to downloading the Software. Notices and reports shall be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered U.S. mail (return receipt requested); or (iii) one day after it is sent if by next day delivery by a major commercial delivery service.
12.6 Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
12.7 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No provision of any purchase order or in any other business form employed by you will supersede the terms and conditions of this Agreement, and any such document issued by a party hereto relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
12.8 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent.
12.9 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to unforeseen events, which occur after the signing of this Agreement and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.
12.10 Government End-Users. The Software is commercial computer software. If the user or licensee of the Software is an agency, department, or other entity of the Australian or United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed fully at private expense. All other use is prohibited.
12.11 Third Party Code. If designated in the Documentation, the Software may contain or be provided with certain third-party code (including code which may be made available to you in source code form). Ownership, use, warranty and modification rights with respect to any such designated code shall be as expressly set forth in the Documentation, including without limitation as set forth in additional licenses applicable to such third party code and open source code, which shall take precedence over this Agreement.