TERMS AND CONDITIONS OF SERVICE.
Effective version since 25/03/2019
This contract is an agreement between you or the entity you represent (hereinafter, “client”, “you” or “your”) and Xubium S.A.C. (hereinafter, “Xubium” or “we”) that describes the general terms and conditions (hereinafter, the “general terms and conditions”, “terms and conditions”, “terms” or “conditions”) that govern the use of the services provided by Xubium SAC (hereinafter, “services”, or “service”). Anyone who wishes to access and / or use the services may do so subject to the general terms and conditions of Xubium, along with all other policies and principles that govern Xubium and that are incorporated herein by reference.
IF YOU DO NOT ACCEPT THESE GENERAL TERMS AND CONDITIONS, WHICH ARE MANDATORY AND BINDING, YOU MUST REFRAIN FROM USING THE SERVICES.
MODIFICATION OF THE TERMS AND CONDITIONS OF SERVICE
We may modify the general terms and conditions upon notification at any time via a service announcement or by sending an email to your primary email address. If we make significant changes to the terms and conditions that affect your rights, you will be provided at least 30 days’ notice of the changes by email to your primary email address. You may terminate your use of the services by sending a notice to Xubium by email within 30 days of notification of the availability of the modified terms and conditions if the terms and conditions are modified in a way that substantially affects your rights in relation to the use of the services. In the event of such termination, you will be entitled to a prorated refund of the unused portion of any prepaid rates. Your use of the service after the effective date of any changes to the terms and conditions will be deemed your acceptance of the modified terms and conditions.
Execute their responsibilities within the established deadlines and in an adequate manner.
Provide Xubium with reliable, correct, updated and complete information, as necessary, for the provision of services.
Make payments in the defined terms.
SUSPENSION OF SERVICES DUE TO NON-PAYMENT
We may suspend your use of the Services if you do not pay the amounts due within the defined timeframes. If this occurs, a suspension will be applied to the Services without paying. We will give a final notice of at least 30 days before suspending for non-payment. If you do not fully address the payment issue within 60 days of suspension, we will terminate your Subscription and delete your Customer Data without any additional retention period. We may also cancel your Subscription if your use of the Services is suspended more than twice in any 12-month period.
ATTENTION OF CLIENT REQUESTS
The Client will send their requirements or requests to Xubium through the Ticket system located at https://soporte.xubium.com/soporte/ exclusively, for which they will designate a limited number of people as support contact points for the purpose that through said contact points the client’s users address their requirements and queries. Individuals designated as contact points for support will be provided ticket opening credentials.
For customers of services that do not serve their end users directly, for example XUBIUM Web, the maximum number of people designated as contact points for support is 1, for customers with services that directly serve end users, for example XUBIUM Mail, the maximum it is 3 or 5% of the number of users of the services adjusting fractions to the next higher unit, whichever is less.
Hours of operation are Monday through Friday, excluding holidays, from 9:00 a.m. to 6:00 p.m. UTC / GMT -5. Within these hours, the tickets have a maximum time to start the service of 2 hours.
LIMITATION OF LIABILITIES
For no reason or circumstance, an alleged and eventual economic responsibility of Xubium towards the client or third parties, as a result of or in relation to the services, may exceed the amount actually and effectively paid to Xubium by the client, for the specific service that the originates, from the beginning of the provision of the specific service or the last 6 months, whichever is less. In principle, and without prejudice to the foregoing, Xubium may only be liable for duly proven direct damages, caused by inexcusable negligence or fault.
Xubium will not be responsible for loss or lost profits.
The protections that cover Xubium under the terms of this clause also extend to partners and staff of its professional or administrative staff.
In relation to the information provided in the framework of this agreement and designated as confidential by the party that provides it, the party that receives it agrees to:
- Protect such confidential information reasonably and adequately, in accordance with applicable standards.
- Use confidential information solely for the purpose of performing your obligations under the agreement.
- Reproduce such confidential information only to the extent necessary to perform your obligations under the agreement.
- Do not disclose such confidential information to third parties without the prior authorization of the other part.
This Article will not apply to information that:
- Be in the public domain.
- It is already known to the party that receives it.
- It has been provided to a third party without restrictions.
- Has been independently developed.
- Has been disclosed due to legal requirements or the fulfillment of a mandate or requirement of a competent authority.
The customer may use the Services only for their own internal purposes. You may not: (i) transfer the services or make them available to any third party; or (ii) provide any services based on our services without prior written permission.
Xubium retains all right, title and interest in:
- The services, including by way of illustration, all patents, copyrights, trademarks or other intellectual property rights related to the services.
- Any methodology, procedure, technique, idea, concept, trade secrets and know-how incorporated or related to the services or that Xubium may develop or contribute in relation to this agreement (the “Xubium knowledge”).
In addition to all other terms and conditions of this agreement, you must not: (i) use the services in any way that may damage, disable, overload, impair or damage any Xubium server, network, computer system, resource; (ii) violate any law; or (iii) create a false identity to mislead any person as to the identity or origin of any communication.
SPAMMING AND ILLEGAL ACTIVITIES
You agree to be solely responsible for the content of your transmissions through the services. You agree not to use the services for illegal purposes or for the transmission of material that is illegal, defamatory, harassing, invasive of another person’s privacy, abusive, threatening, harmful, vulgar, pornographic, obscene or that is objectionable, offends religious feelings, promotes racism, contains viruses or malicious code, or those that infringe or may infringe the intellectual property or other rights of third parties.
You agree not to use the services for the transmission of “junk mail”, “spam”, “chain letters”, “phishing” or unsolicited bulk distribution of email. We reserve the right to terminate your access to the services if there are reasonable grounds to believe that you have used the services for any illegal or unauthorized activity.
The agreement requires the client to notify us of his intention to terminate the contractual relationship established by this agreement at least 30 days in advance. The purpose of this provision is to ensure that we will have sufficient time during the term of the agreement to transfer to the client the elements of the services that should remain under its control, for example, the administration of the client’s domains or the contents of Web sites.
If THE CLIENT communicates its intention to terminate the contracting of the XUBIUM Web service (design, construction, hosting, technical management and maintenance of website content), XUBIUM will transfer the contracted website to THE CLIENT in the standard way for migrations defined by WordPress (providing all content compressed in a .ZIP file and the exported database in a .SQL file).
The website transfer will be made when THE CLIENT does not owe any amount to XUBIUM, and under the following conditions:
- • Products and arrangements. All products, as well as related solutions and fixes used during the design and construction of the website, are licensed in accordance with the terms of the respective license agreements included with or applicable to such products. If applicable, THE CLIENT will be responsible for paying the license fees related to the products if they wish to receive updates or official support after the website is transferred to them. “Product” means any computer code, web-based services, images, videos, or materials that comprise released, pre-released or beta products (either licensed for consideration or free) and derivative products of the foregoing, that XUBIUM puts available to THE CLIENT under licenses published by a third party.
- Pre-existing work. All rights over computer code or materials (other than products or fixes) developed or obtained in another way independently of the agreement between THE CLIENT and XUBIUM (“pre-existing work”) will continue to be the exclusive property of XUBIUM. By transferring the XUBIUM website you grant a non-exclusive, perpetual and fully paid license to use, reproduce and modify (if applicable) the pre-existing work, in the form that has been provided to you as part of the deliverables. “Deliverables” means any computer code or materials (other than products or fixes) that we leave with you after the website is transferred. The licenses on the pre-existing work of XUBIUM are conditioned to the fulfillment of the Terms and Conditions of Service of XUBIUM, and the perpetual license will correspond only to the pre-existing work that we provide to them at the time of the transfer of the website.
- Developments. By transferring the website, XUBIUM grants THE CLIENT the exclusive property of all the rights over each and every one of the elements of the website (other than products, arrangements or pre-existing work) including the patrimonial rights of author or intellectual property, derived from the design and / or creation of the contracted website and actions that correspond to it, and that will be recognized in the future in any country.
STATEMENTS AND COMMITMENTS
The Client declares that, hereby, expressly and unequivocally, he has given his free consent so that Xubium may use his data, sensitive or not, for the development of its business activities. This implies incorporating them into its databases, and implies that these are considered within the portfolio of clients applicable to its various present and future services in order to incorporate it into promotional campaigns and service offers; provided that such information is used for Xubium’s business purposes. This authorization is for an indefinite period, which includes, at least, the entire duration of the commercial relations between the client and Xubium, and a period of 5 years from the conclusion of these. Likewise, the client acknowledges that they may request the rectification of their personal data and even revoke the authorization granted by email communication to Xubium.
- Neither party will be liable for delays or failures due to circumstances beyond its reasonable control.
- Xubium may use subcontractors for the implementation and operation of the services.
- This agreement does not make either party an agent or legal representative of the other, and does not create any type of association or joint venture. The parties act as independent contractors and fully assume and on their own behalf their respective obligations, derived from this agreement.
- Although some documents may legally belong to the client, Xubium reserves the right to destroy correspondence and other documentation once there are no legal reasons that require their conservation, unless the client communicates his opposition in writing.
- In the event that any term or stipulation of this agreement is declared illegal, void or voidable, said term or stipulation will be considered eliminated, surviving the rest of the agreement.
- These terms and conditions, and the proposal, will be governed and interpreted in accordance with Peruvian law.
- Any discrepancy, conflict or controversy that arises between the parties, in relation to the interpretation, execution, compliance or any other aspect related to the existence, validity or nullity of this agreement, will be negotiated and resolved directly within a period of fifteen (15 ) calendar days from the notification of the dispute, made in writing by one party to the other. When the parties cannot resolve the aforementioned conflict or controversy within the negotiation period through the direct treatment referred to in the preceding paragraph, these will be resolved by arbitration of law through a procedure processed in accordance with the Conciliation and Arbitration Regulations of the National and International Arbitration Center of the Lima Chamber of Commerce, to whose rules both parties submit unconditionally, the General Arbitration Law being of supplementary application.
The arbitration will be held in the city of Lima, Peru, it will be conducted in Spanish, and the arbitration award will be issued within a period of sixty (60) business days from the date on which the Sole Arbitrator or the Arbitral Tribunal is installed. The arbitration will be carried out before a Sole Arbitrator, for which purpose the parties will agree on the appointment of this. If they do not agree, it will be brought before an Arbitration Tribunal. The Arbitration Tribunal will be made up of three (3) members. Each party will designate an arbitrator, and the third arbitrator will be appointed by agreement of the two arbitrators appointed by the parties, who in turn will be a member of the Arbitral Tribunal. If the two arbitrators do not choose the third arbitrator within ten (10) days following the appointment of the second arbitrator, the third arbitrator will be appointed by the Lima Chamber of Commerce, at the request of either party. If one of the parties does not comply with choosing their respective arbitrator within ten (10) days of having requested it, it will be understood that they have waived their right to do so and the arbitrator will be appointed by the Lima Chamber of Commerce, upon reques of the other part.
The parties agree that the decision made by the Arbitral Tribunal will be final and unappealable.
VALIDITY, INTELLECTUAL PROPERTY AND CONFIDENTIALITY OF THE PROPOSAL AND OF THE TERMS AND CONDITIONS
The reproduction, distribution, public communication, transformation, total or partial, free or onerous, by any means or procedure of this document, without the prior written authorization of Xubium is prohibited. This document is strictly confidential.
The proposal will be valid for a period of three months from its date of issue.
Xubium will retain ownership of all intellectual property rights and other economic rights of any kind on the Xubium Technology that it may use or develop in connection with this agreement (other than the materials that the client has provided to Xubium, on which the client or a third party maintains intellectual property rights).
“Xubium Technology” refers to all know-how, software, system interfaces, templates, methodologies, ideas, concepts, techniques, tools, processes and technologies, including web-based technology and algorithms licensed to or developed by Xubium, and that are used by Xubium to provide the Services or perform other obligations.
CREDENTIAL AND LOGO USE
The client authorizes Xubium to use this service as an experience and service credential. For this purpose, the client authorizes Xubium to use its corporate name, logo, isotype and trademarks in working documents, its website and other proposals to clients, for which Xubium will act with the corresponding care and responsibility.