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Terms and Conditions

The following terms and conditions ("Agreement") represents the complete agreement and understanding between you and Xyea Ltd. ("Xyea") regarding the use of Xyea’s online service applications (collectively, the "Service"), and supersedes all prior agreements, oral or written.

BY CLICKING THE "Register" BUTTON AS PART OF THE SIGN-UP PROCESS, YOU AGREE TO THIS AGREEMENT GOVERNING YOUR USE OF THE SERVICE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT ACCEPT THIS AGREEMENT, DO NOT COMPLETE THE SIGN-UP PROCESS AND YOU MAY NOT USE THE SERVICE.

Xyea will provide you with use of the Service, including a browser interface and data transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the Xyea website incorporated by reference herein, including but not limited to Xyea's privacy and security policies. A Definitions section is included at the end of this Agreement for reference.

We offer a 15-day free trial of the Service with no further obligation.

1. Privacy & Security; Disclosure

Because the Service is a hosted, online application, Xyea occasionally may need to notify all users of important announcements regarding the operation of the Service. If you become a paying customer of Xyea, you agree that Xyea can disclose the fact that you are a paying customer of Xyea.

2. License Grant & Restrictions

Xyea hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Xyea and its licensors. Each User of the Service must have a separate User account. The sharing of a single User account by multiple people is not permitted.

You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; or (iii) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users and no longer use the Service.

You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.

3. Your Responsibilities

You are responsible for all activity occurring under your User accounts and shall abide by all applicable laws, in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Xyea immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Xyea immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another user of the Service or provide false identity information to gain access to or use the Service.

4. Account Information and Data

Xyea does not own any data, information or material that you submit to Xyea in the course of using the Service ("Customer Data"). You, not Xyea, shall have sole responsibility for the accuracy, reliability, and intellectual property ownership or right to use of all Customer Data, and Xyea shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), Xyea will provide limited access to the Service for the sole purpose of allowing you to export your Customer Data within 30 days of termination. Xyea reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and Xyea shall have no obligation to maintain or forward any Customer Data.

5. Intellectual Property Ownership

Xyea alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to Xyea Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, Xyea Technology or the Intellectual Property Rights owned by Xyea. The Xyea name, the Xyea logo, and the product names associated with the Service are trademarks of Xyea, and no right or license is granted to use them.

6. Charges and Payment of Fees

You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial charges will be equal to the current number of total User licenses requested times the User license fee currently in effect. Payments are due monthly in advance. You are responsible for paying for all User licenses ordered for each month, whether or not such User licenses are actively used. You must provide Xyea with valid credit card or approved purchase order information as a condition to signing up for the Service. An authorized Administrator may add licenses by executing an additional written Order Form or using the Online Order. Added licenses will be subject to the following: (i) added licenses will be coterminous with the preexisting licenses; (ii) the license fee for the added licenses will be the then current, generally applicable license fee; and (iii) licenses added in the middle of a billing month will be charged in full for that billing month. Xyea reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party.

7. Billing and Renewal

Xyea charges and collects in advance for use of the Service. Xyea will automatically renew and bill your credit card or issue an invoice to you every month, or as otherwise mutually agreed upon. The renewal charge will be equal to the then-current number of total User licenses times the license fee in effect during the prior term, unless Xyea has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. In addition, Xyea may charge a $20.00 fee in any month where the automatic credit card charges are declined and must be re-processed. Fees for other services will be charged on an as-quoted basis. Xyea's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Xyea's income.

You agree to provide Xyea with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Xyea reserves the right to terminate your access to the Service in addition to any other legal remedies.

Unless Xyea in its discretion determines otherwise: all entities will be billed in Euro and be subject to payment terms and pricing schemes at the discretion of Xyea.

If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.

8. Non-Payment and Suspension

In addition to any other rights granted to Xyea herein, Xyea reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for User licenses during any period of suspension. If you or Xyea initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that Xyea may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.

Xyea reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that Xyea has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.

9. Termination upon Expiration/Reduction in Number of Licenses

This Agreement commences on the Effective Date. The Term is for one month and this Agreement will automatically renew for successive months at Xyea's then current fees. Either party may terminate this Agreement or reduce the number of licenses, effective only upon the end of each month, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the following month. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. In the event this Agreement is terminated (other than by reason of your breach), Xyea will provide limited access to the Service for the sole purpose of allowing you to export your Customer Data within 30 days of termination. You agree and acknowledge that Xyea has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination.

10. Termination for Cause

Any breach of your payment obligations or unauthorized use of the Service will be deemed a material breach of this Agreement. Xyea, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, Xyea may terminate a trial account at any time in its sole discretion. You agree and acknowledge that Xyea has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.

11. Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Xyea represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that Xyea will perform substantially in accordance with the Service's online help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.

12. Mutual Indemnification

You shall indemnify and hold Xyea, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Xyea (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Xyea of all liability and such settlement does not affect Xyea's business or the Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.

Xyea shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Xyea of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Xyea; provided that you (a) promptly give written notice of the claim to Xyea; (b) give Xyea sole control of the defense and settlement of the claim (provided that Xyea may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to Xyea all available information and assistance; and (d) have not compromised or settled such claim. Xyea shall have no indemnification obligation, and you shall indemnify Xyea pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).

13. Disclaimer of Warranties

Xyea AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. Xyea AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY Xyea AND ITS LICENSORS.

14. Internet Delays

Xyea'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. Xyea IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

15. Limitation of Liability

IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

15. Notice

Xyea may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in the Service's account information, or by written communication sent by first class mail or pre-paid post to your address on record in the Service's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Xyea (such notice shall be deemed given when received by Xyea) at any time by any of the following: letter sent by confirmed facsimile to Xyea at 719-388-1967; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Xyea at the following addresses: Xyea Ltd., Unit 2 - Clashganniv House, Killogilleen, Craughwell, Co Galway, Ireland, addressed to the attention of: Chief Financial Officer.

16. Modification to Terms

Xyea reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.

17. Assignment; Change in Control

This Agreement may not be assigned by you without the prior written approval of Xyea but may be assigned without your consent by Xyea to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Xyea directly or indirectly owning or controlling 50% or more of you shall entitle Xyea to terminate this Agreement for cause immediately upon written notice.

18. General

This Agreement shall be governed by Irish law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or Xyea shall be subject to the exclusive jurisdiction of Ireland. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Xyea as a result of this agreement or use of the Service. The failure of Xyea to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Xyea in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and Xyea and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

19. Definitions

As used in this Agreement and in any Order Forms now or hereafter associated herewith: "Agreement" means these online terms of use, any Order Forms, whether written or submitted online via the Online Order, and any materials available on the Xyea website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by Xyea from time to time in its sole discretion; "Content" means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service; "Customer Data" means any data, information or material provided or submitted by you to Xyea in the course of using the Service; "Effective Date" means the earlier of either the date this Agreement is accepted by completing and submitting the trial sign-up form that includes a link to this Agreement, or the date you begin using the Service; "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; "Administrator(s)" means those Users designated by you who are authorized to purchase licenses online using the Online Order or by executing written Order Forms and to create User accounts and otherwise administer your use of the Service; "Order Form(s)" means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail); "Online Order" means the Service's online application that allows the Administrator designated by you to, among other things, add additional Users to the Service; "Xyea" means collectively Xyea Ltd., an Irish company, having its principal place of business at Unit 2 - Clashganniv House, Killogilleen, Craughwell, Co Galway, Ireland; "Xyea Technology" means all of Xyea's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Xyea in providing the Service; "the Service" means Xyea's online service management application developed, operated, and maintained by Xyea, accessible via http://www.Xyea.com or another designated web site or IP address, or ancillary services rendered to you by Xyea, to which you are being granted access under this Agreement, including the Xyea Technology and the Content; "User(s)" means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by Xyea at your request).

Questions or Additional Information:

If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to support@Xyea.com.

© Copyright 2012 Xyea Ltd. All rights reserved.

 
     
 
 
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Galway: Unit 2 - Clashganniv House, Killogilleen, Craughwell, Co Galway, Ireland. Tel: +353 (0) 91 846636
Dublin: Denshaw House, 121 Lower Baggot St, Dublin 2. Tel: +353 (0) 1 442 9901