This Cloud Subscription Business Software-as-a-Service (“SaaS”) Agreement (this “Agreement”) is an agreement between the individual or business entity obtaining the Service (as defined below) (“you” or “Customer”) and XERPA, Inc. (“XERPA”).

 

XERPA provides a subscription service to which you intend to subscribe. This Agreement sets forth the terms pursuant to which you will be permitted access to the Service, and becomes effective upon the earlier of your first use of the Service or execution of the XERPA Order Form. The Parties agree as follows:

1.    Definitions.

 

XERPA” means XERPA, Inc., a Delaware corporation, and its Affiliates. “XERPA Order Form” means the XERPA Order Form you signed when you purchased the Service from your Authorized XERPA Reseller or XERPA.

 

Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control by either Party. For purposes of the preceding sentence, "control" means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

 

Agreement” means this XERPA Cloud Subscription Business SaaS Agreement, including the SLA (as may be updated from time to time), and any schedules or exhibits to this Agreement.

 

App” is a specialized group of features available for installation in the Software , cloud service or mobile application, and listed in the pricing section of XERPA INC’s website.

 

Authorized XERPA Reseller or Partner” means a business partner that has entered into a contractual relationship with XERPA to sell XERPA software licenses and services to end users.

 

"Authorized Parties" means you or your authorized Affiliate’s Employees and third party providers you authorize to access your Tenants and/or to receive Subscriber Data

(i)              in writing,

(ii)             through the Service’s security designation, or

(iii)            by system integration or other data exchange process.

 

“Bug” Is considered a Bug any failure of the Software or of a Covered Extra Module that results in a complete stop, error traceback or security breach, and is not directly caused by a defective installation or configuration. Non-compliance with specifications or requirements will be considered as Bugs at the discretion of XERPA INC (typically, when the Software does not produce the results or performance it was designed to produce, or when a country-specific feature does not meet legal accounting requirements anymore).

    

 

      "Confidential Information" means all your and XERPA’s information, material and data or

        any third party data

(i)              labeled or designated in writing as confidential or proprietary,

(ii)             which is verbal or otherwise intangible and the disclosing party advises the receiving party is proprietary or confidential or

(iii)            which, in view of the nature of such information and/or the circumstances of its disclosure the receiving party knows or reasonably should know is confidential or proprietary, including, but not limited to, software, information relating to financial data, plans, forecasts, intellectual property, methodologies, algorithms, agreements, market intelligence, technical concepts, customer information, strategic analyses and internal developments.

        Confidential Information does not include information

(i)              which is or becomes publicly known without any fault of or participation by the receiving party,

(ii)             was in receiving party’s possession prior to the time it was received from disclosing party or came into receiving party’s possession thereafter, in each case lawfully obtained from a source other than disclosing party and not subject to any obligation of confidentiality or restriction on use, or

(iii)            is independently developed by the receiving party by persons not having exposure to disclosing party’s Confidential Information.

 

 

“Covered Extra Module” A Covered Extra Module is an Extra Module for which the Customer chooses to pay a maintenance fee in order to get support, upgrade and bug fixing services.

 

Documentation" means XERPA’s electronic and hardcopy user guide for the Service, which may be updated by XERPA from time to time.

 

"Employee" means your employees, consultants, contingent workers, independent contractors, and retirees and of your Affiliates whose business record(s) are or may be managed by the Service and for which a subscription to the Service has been purchased.

 

“Extra Module” An extra module is a directory of source code files, or a set of Python-based customizations created in a database, that adds features or changes the standard behavior of the Software. It may have been developed by the Customer, by XERPA INC, by an XERPA Partner on behalf of the Customer, or by third parties.

 

Improvements” means all improvements, updates, enhancements, error corrections, bug fixes, hot fixes, changes, release notes, upgrades and changes to the Service and Documentation, as developed by XERPA and made generally available for Production use without a separate charge to you.

 

Intellectual Property Rights” means any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto. “Law” means any local, state, national and/or foreign law, treaties, and/or regulations applicable to a respective Party. “Licensing Guide” which can be found at www.XERPA.com/agreements provides guidance to help you answer questions on the Service and your use of the Service.

 

Malicious Code” means viruses, worms, time bombs, Trojan horses, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another.

 

Personal Data” means any information that is related to an identified or identifiable individual and has been provided by you or your Affiliates as Subscriber Data within the Service to enable XERPA to process the data on your behalf. “Production” means the use by you, your Employee or other Authorized Party to use the Service

(i)              to administer Employees;

(ii)             o generate data for your books/records; or

(iii)            in any decision support capacity.

 

Security Breach” means

(i)              any actual or reasonably suspected unauthorized use of, loss of, access to or disclosure of, Subscriber Data; provided that an incidental disclosure of Subscriber Data to an Authorized Party or XERPA, or incidental access to Subscriber Data by an Authorized Party or XERPA, where no reasonable suspicion exists that such disclosure or access involves theft, or is fraudulent, criminal or malicious in nature, shall not be considered a “Security Breach” for purposes of this definition, unless such incidental disclosure or incidental access triggers a notification obligation under any Law and

(ii)             any security breach (or substantially similar term) as defined by Law.

 

"Service" means XERPA’s software-as-a-service (“SaaS”) applications delivered by XERPA pursuant to the XERPA Order Form. “SLA” means the Service Level Agreement, attached as Schedule 1, which may be updated by XERPA from time to time. No update shall materially diminish XERPA’s responsibilities under the Service Level Agreement.

 

"Subscriber Data" means the electronic data or information submitted by you, your Employees or Authorized Parties to the Service.

 

Subscriber Input” means suggestions, enhancement requests, recommendations or other feedback provided by you, your Employees and Authorized Parties relating to the operation or functionality of the Service.

 

Subscription Service Fees” means all amounts invoiced and payable by you for the Service.

Supported Version of the Service” means a version of the Service that is listed as a supported version of the Service in XERPA’s lifecycle policy. All versions of the Service are supported for at least 18 months after their initial release.

 

"Tenant" means a unique instance of the Service, with a separate set of Subscriber Data held by XERPA in a logically separated database (i.e., a database segregated through password- controlled access).

 

Term” has the meaning set forth in Section 10.1.

 

Third Party Applications” means applications licensed from third parties which connect with or interoperate with the Service.

 

User” Any user account indicated as active in the Software, with access to creation and/or edition mode. Deactivated user accounts and accounts used by external people (or systems) who only have limited access to the Software through the portal facilities (known as “portal Users”) are not counted as Users.

2.    Provision of Service.

 

The Customer can use the Software hosted on the Cloud Platform. The Cloud Platform is hosted and fully managed by XERPA INC, and accessed remotely by the Customer. For the duration of this Agreement, XERPA INC gives the Customer a non-exclusive, non-transferable license to use the SaaS service

 

2.1  XERPA Obligations .

During the Term of this Agreement, XERPA shall:

 

(i) make the Service available to you in accordance with the Documentation, the SLA and pursuant to the terms of this Agreement;

(ii) not use Subscriber Data except to provide the Service to Authorized Parties, or to prevent or address service or technical problems, or to verify Improvements to the Service, or in accordance with this Agreement and the Documentation, or in accordance with your instructions; and

(iii) not disclose Subscriber Data to anyone other than Authorized Parties in accordance with this Agreement. XERPA reserves the right to deny access to the Service to anyone at any time in the event that XERPA, in good faith, believes it is necessary for purposes of ensuring your compliance with this Agreement or to protect the rights, property, and interests of XERPA, its Affiliates, service providers and licensors.

 

2.2  Subscriber Obligations.

You may enable access of the Service for use only by Authorized Parties solely for your internal business purposes and those of your Affiliates in accordance with the terms of this Agreement and the Documentation and not for the benefit of any third parties. You are responsible for all Authorized Party use of the Service and compliance with this Agreement.

You shall:

 

(i)              have sole responsibility for the evaluation, selection and for the results obtained from the Service,

(ii)             comply with all rules and regulations relating to the Service in the Documentation or sent to you by email or other electronic means as they may be amended from time to time,

(iii)             have sole responsibility for the accuracy, quality, and legality of all Subscriber Data,

(iv)           be responsible for all electronic communications, including those containing business information, account registration, financial information, Subscriber Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service, and

(v)            take commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, notify XERPA promptly of any such unauthorized access or use, and cooperate with and assist XERPA in identifying and preventing any unauthorized use, copying, or disclosure of the Service, the Documentation, or any portion of the Service or the Documentation.

 

You shall not:

 

(vi)           use the Service in violation of Law or in such a manner as is likely to harm XERPA, its Affiliates, service providers, licensors, suppliers and/or customers,

(vii)          in connection with the Service, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights,

(viii)         send or store Malicious Code in connection with the Service,

(ix)           interfere with or disrupt performance of the Service or the related data,

(x)            attempt to breach the security of the Service, or access or attempt to access data belonging to third parties, or

(xi)           attempt to gain access to the Service or its related systems or networks in a manner not set forth in this Agreement or the Documentation. You shall be liable for the acts and omissions of all of your Authorized Parties and Affiliates relating to this Agreement.

 

2.3  Failure to Maintain Supported Version of the Service.

In the event you do not maintain a Supported Version of the Service, then you will be charged a premium upon renewal of the Service.

 

2.4 Temporary Limited Service.

In the event XERPA has made the Service available to you (i) to evaluate the Service, (ii) as an XERPA Authorized Reseller, not for resale, (iii) as an institution of higher education, for use by staff and/or students, without Subscription Service Fees, or (iv) when otherwise no Subscription Service Fees are charged for use of the Service, then, subject to your compliance with the terms and conditions of this Agreement, XERPA grants you access to use the Service solely for the purpose(s) agreed upon by XERPA and you. The use of the service granted under this Section 2.4 shall be limited as follows: (a) you may use the Service only for the user counts, transaction volumes, and resource level utilization specifically authorized by XERPA; (b) you may use the Service only for the purposes expressly authorized by XERPA and subject to such further restrictions agreed upon by XERPA and you; (c) the Service may be terminated by XERPA upon ten (10) days written notice; (d) the Service is provided “As Is” without warranty of any kind, either express or implied, including, without limitation, the implied warranties or merchantability, fitness for a particular purpose; and (e) Sections 5.2, 5.5, 6, 8.1, 101 and 10.3, and Schedule 1 of this Agreement shall not apply.

 

2.5 Bug Fixing Service

For the duration of this Agreement, XERPA INC commits to making all reasonable efforts to remedy any Bug of the Software and Covered Extra Modules submitted by the Customer through the appropriate channel (typically, the web form or phone numbers listed on XERPA.com/help, or when working with an XERPA Partner, the channel provided by the partner), and to start handling such Customer submissions within 7 business days. As soon as the Bug is fixed an appropriate remedy will be communicated to the Customer. If the Customer is using a Covered Version, they will not be asked to upgrade to a more recent Covered Version of the Software as a remedy to a Bug. When a Bug is fixed in any Covered Version, XERPA INC commits to fixing the Bug in all more recent Covered Versions of the Software. Both parties acknowledge that as specified in the license of the Software and in the  Limitation of Liability section of this Agreement, XERPA INC cannot be held liable for Bugs in the Software or in Covered Extra Modules.

2.6 Security Updates Service

XERPA INC commits to apply the security remedies for any security Bug discovered in a version of the Software hosted on the Cloud Platform, on all systems under its control, as soon as the remedy is available, without requiring any manual action of the Customer.

2.7 Upgrade Services

Upgrade Service for the Software: For the duration of this Agreement, the Customer can submit upgrade requests through the appropriate channel (typically XERPA INC’s website), in order to convert a database of the Software from any version of the Software to a more recent Covered Version (the “Target Version”).

This service provided through an automated platform in order to allow the Customer to perform unattended upgrades once a previous version of the Customer’s database has been successfully upgraded for a Covered Version.

The Upgrade Service is limited to the technical conversion and adaptation of the Customer’s database to make it compatible with the Target Version, the correction of any Bug directly caused by the upgrade operation and not normally occurring in the Target Version, and the conversion of the source code and data of Covered Extra Modules for the Target Version.

It is the responsibility of the Customer to verify and validate the upgraded database in order to detect Bugs, to analyze the impact of changes and new features implemented in the Target Version, and to convert and adapt for the Target Version any third-party extensions of the Software that were installed in the database before the upgrade (e.g. non-convered Extra Modules). The Customer may submit multiple upgrade requests for a database, until an acceptable result is achieved.

2.8 Cloud Hosting Services

For the duration of this Agreement, when the Customer chooses to use the Cloud Platform, XERPA INC commits to providing at least the following services:

·       Choice of multiple hosting regions (minimum 3: Europe, America, Asia/Pacific)

·       Hosting in Tier-III data centers or equivalent, with 99.9% network uptime

·       Grade A SSL (HTTPS) Encryption of communication

·       Fully automated, verified backups, replicated in multiple regions

·       Disaster Recovery Plan, tested regularly

The details of the Cloud Hosting Services are described in the Service Level Agreement

2.9 Support Services

Scope

For the duration of this Agreement, the Customer may open an unlimited number of support tickets free of charge, exclusively for questions regarding Bugs (see Bug Fixing Service) or guidance with respect to the use of the standard features of the Software and Covered Extra Modules.

Other assistance requests, such as questions related to development or customizations may be covered through the purchase of a separate service agreement. In case it’s not clear if a request is covered by this Agreement, the decision is at the discretion of XERPA INC.

Availability

Tickets can be submitted via the web form or phone numbers listed on XERPA.com/help, or when working with an XERPA Partner, the channel provided by the partner, subject to local opening hours.

2.10 Working with an XERPA Partner

For bug fixes, support and upgrade services, the Customer may either work with an XERPA Partner as the main point of contact, or work with XERPA INC directly. If the Customer decides to work with an XERPA Partner, XERPA INC will subcontract services related to the Covered Extra Modules to the XERPA Partner, who becomes the main point of contact of the customer. The XERPA Partner may contact XERPA INC on behalf of the customer for second-level assistance with regard to standard features of the Software. If the Customer decides to work with XERPA INC directly, services related to Covered Extra Modules are provided if and only if the Customer is hosted on the XERPA Cloud Platform.

 

2.11 Use Reporting.

XERPA reserves the right to gather data on usage of the Service to ensure that the Service is being used in accordance with the terms of this Agreement and the type of Service purchased by you. The Service monitors user counts, transaction volumes, resource level utilization, License Key numbers, server IP addresses and other information. In the event (a) transaction volumes or resource level utilization of your database exceeds, for any three (3) months during the trailing twelve (12) month period, the transaction volumes or capacity, respectively, purchased by you, or (b) any other unauthorized use of the Service is discovered, it shall be considered a material breach of this Agreement. You agree not to block, electronically or otherwise, the transmission of data required for the monitoring of compliance with this Agreement. Any blocking of data required for compliance may result in immediate termination of this Agreement.

 

3.    Proprietary Rights.

 

3.1 Ownership and Reservation of Rights to XERPA Intellectual Property. XERPA and its licensors own all right, title and interest in and to the Service, Documentation, and other XERPA Intellectual Property Rights. Subject to the limited rights expressly granted under this Agreement, XERPA reserves all rights, title and interest in and to the Service, and Documentation, including all related Intellectual Property Rights. No rights are granted to you other than as expressly set forth in this Agreement.

 

3.2 Access to and Use of Content. You and your Affiliates have the right to access and use the Service and Documentation subject to the terms of this Agreement and the Documentation.

 

3.3 Restrictions. You shall not; (i) modify or copy the Service or create any derivative works based on the Service, (ii) modify or copy the Documentation or create any derivative works based on the Documentation, except for internal training purposes, (iii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Service or Documentation available to any third party, other than to Authorized Parties as permitted by this Agreement, (iv) reverse engineer or decompile any portion of the Service, including but not limited to, any software utilized by XERPA in the provision of the Service, (v) access the Service or Documentation in order to build any commercially available software product or service, or (vi) copy any features, functions, integrations, interfaces or graphics of the Service or Documentation.

 

3.4 Ownership of Subscriber Data. As between XERPA and you, you own your Subscriber Data.

 

3.5 License to Host Subscriber Data and Applications. You grant XERPA and its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, store, record, transmit, display, view or otherwise use Subscriber Data, as reasonably necessary for XERPA to provide the Service in accordance with this Agreement. Subject to the limited licenses granted in this Agreement to XERPA, XERPA acquires no right, title or interest from you or your licensors under this Agreement in or to any of Subscriber Data.

 

3.6 Subscriber Input. XERPA shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Service any Subscriber Input. XERPA shall have no obligation to make Subscriber Input an Improvement. You shall have no obligation to provide Subscriber Input.

 

3.7 Aggregated Statistical Information. XERPA owns the aggregated and statistical data derived from the operation of the Service, including, without limitation, the number of records in the Service, the number and types of transactions, configurations, and reports processed in the Service and the performance results for the Service (the “Aggregated Statistical Information”). Nothing in this Agreement shall be construed as prohibiting XERPA from utilizing the Aggregated Statistical Information for purposes of providing or improving the Service, benchmarking the Service performance, preparing statistics and system metrics, and marketing; provided however, that XERPA’s use of Aggregated Statistical Information will not reveal your identity or your Personal Data to any third party.

 

3.8 Injunctive Relief. The Parties acknowledge that, in the event of a breach of any of the provisions of this Section 3, the non-breaching Party will not have an adequate remedy at law. The non-breaching Party shall, therefore, be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. The non-breaching Party’s right to obtain injunctive relief shall not limit its right to seek further remedies.

 

4.    Confidentiality.

 

4.1 Confidentiality. A Party shall not disclose or use any Confidential Information of the other Party except as reasonably necessary to perform its obligations or exercise its rights pursuant to this Agreement except with the other Party's prior written permission.

 

4.2 Protection. Each Party agrees to protect the Confidential Information of the other Party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care.

 

4.3 Compelled Disclosure. A disclosure by one Party of Confidential Information of the other Party to the extent required by Law shall not be considered a breach of this Agreement, provided the Party so compelled promptly provides the other Party with prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the other Party's cost, if the other Party wishes to contest the disclosure.

 

4.4 Remedies. If a Party discloses or uses (or threatens to disclose or use) any Confidential Information of the other Party in breach of the confidentiality protections described in this Agreement, the other Party shall have the right, in addition to any other remedies available, to injunctive relief to enjoin such acts, it being acknowledged by the Parties that any other available remedies are inadequate.

 

4.5 Exclusions. Confidential Information shall not include any information that:

 

(i)              is or becomes generally known to the public without breach of any obligation owed to the other Party;

(ii)             was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party;

(iii)            was independently developed by a Party without breach of any obligation owed to the other Party; or (iv) is received from a third party without breach of any obligation owed to the other Party. Subscriber Data shall not be subject to the exclusions set forth in this Section 4.5.

5.    Subscriber Data.

 

5.1  Privacy and Security.

XERPA has taken reasonable actions, including encryption of Subscriber Data during transmission and firewalls, to ensure that Subscriber Data is disclosed only to Authorized Parties. However, you acknowledge that the Internet is an open system and XERPA cannot and does not warrant or guarantee that Subscriber Data will not be intercepted by third parties. XERPA disclaims any liability for interception of any Subscriber Data or electronic communications. Notwithstanding the first sentence in this Section 5.1, XERPA may disclose information you submitted to XERPA if required by law or in the event that XERPA, in good faith, believes disclosure is necessary to (i) comply with legal process, or (ii) protect the rights or property of XERPA, its Affiliates, licensors or others. XERPA does not sell or rent Personal Data to third parties for their marketing purposes without your explicit consent and XERPA only uses your information as described in the Privacy Statement. For more information on XERPA’s Privacy Statement, see the Privacy Statement posted on www.XERPA.com/agreements. If you object to your information being used in the manner set forth in the Privacy Statement, you should discontinue use of the Service.

 

5.2  Subscriber Data Upon Termination.

Upon termination of this Agreement, all Subscriber Data retained by XERPA in the system database files shall be made available to you for a period of 60 days after the termination of this Agreement. Thereafter, all of Subscriber Data, if retained by XERPA in the system database files, shall be made available to you only upon remittance to XERPA of a reasonable fee to cover the servicing and handling of Subscriber Data.

 

5.3  Use of Subscriber Data.

Notwithstanding Section 5.2, it is XERPA’s practice to make backup copies of the Subscriber Data. You acknowledge and agree that XERPA may store and maintain Subscriber Data for such period of time as it deems necessary. Subject to the terms and conditions of this Agreement, you grant XERPA a limited, non-exclusive, non-transferable license to copy, store, record, transmit, display, view, print, or otherwise use Subscriber Data to the extent necessary to perform the Service. You agree that the license to store and maintain Subscriber Data shall survive the termination of this Agreement.

 

5.4  Limitations on Use .

XERPA shall maintain in confidence, and shall not disclose to any third party, Subscriber Data, and XERPA will not use Subscriber Data for any purposes other than the provision of the Service and as provided in Section 3.7 of this Agreement and XERPA’s Privacy Statement.

 

5.5  XERPA Remediation of Certain Unauthorized Disclosures.

In the event that any unauthorized access to or acquisition of Personal Data is caused by XERPA’s breach of its security and/or privacy obligations under this Agreement, XERPA shall provide you notification as required by Law and pay the reasonable and documented costs you incur in connection with the following items: (a) costs of any required forensic investigation to determine the cause of the breach, (b) providing notification of the security breach to applicable government and relevant industry self-regulatory agencies, to the media (if required by Law) and to individuals whose Personal Data may have been accessed or acquired, (c) providing credit monitoring service to individuals whose Personal Data may have been accessed or acquired for a period of one year after the date on which such individuals were notified of the unauthorized access or acquisition for such individuals who elected such credit monitoring service, and (d) operating a call center to respond to questions from individuals whose Personal Data may have been accessed or acquired for a period of one year after the date on which such individuals were notified of the unauthorized access or acquisition. NOTWITHSTANDING THE FOREGOING, OR ANYTHING IN THE AGREEMENT TO THE CONTRARY, XERPA SHALL HAVE NO RESPONSIBILITY TO PAY COSTS OF REMEDIATION THAT ARE DUE TO RECKLESS MISCONDUCT, GROSS NEGLIGENCE, WILLFUL MISCONDUCT AND/OR FRAUD BY YOU OR YOUR EMPLOYEES, AGENTS OR CONTRACTORS.

 

6.    Limited Warranties; Disclaimer of Warranties.

6.1  Service Limited Warranty; Exclusive Remedy.

XERPA warrants that the performance and functionality of the Service, in all material respects, meet the specifications set forth in the Documentation. XERPA does not warrant that the Service will be error-free. Your sole and exclusive remedy for XERPA’s breach of this limited warranty shall be that XERPA shall use commercially reasonable efforts to modify the Service to meet the performance and functionality specifications, in all material respects, described in the most current Documentation, and if XERPA is unable to restore such performance and functionality, you shall be entitled to terminate this Agreement and shall be entitled to receive a pro-rata refund of the Subscriber Service Fees paid for under this Agreement for your use of the Service for the terminated portion of the Term. XERPA shall have no obligation with respect to a warranty claim (i) unless notified of such claim within sixty (60) days of the first instance of any material performance and/or functionality issue, or (ii) if you fail to upgrade to a Supported Version of the Service, or (iii) if you fail to meet capacity recommendations in the Licensing Guide, or (iv) if the warranty claim is the result of a Third Party Application or a customization of the Service prepared by you or a third party. Any notice required to be sent pursuant to this Section 6.1 must be sent pursuant to Section 11.2

6.2  Service Level Limited Warranty; Exclusive Remedy.

XERPA warrants that the Service will meet the service level specified in the SLA. Except as provided in Section 10.3, in the event that XERPA fails to achieve the applicable service level in any month, you will be entitled, as your sole and exclusive remedy, to a credit in accordance with the SLA. You agree that XERPA’s system logs and other records shall be used for calculating any service level events.

6.3  No Virus Warranty.

XERPA warrants that it will provide the Service free of Malicious Code. This warranty does not extend to your media files, alterations and customizations, Subscriber Data, or Third Party Applications or third-party customizations.

6.4  Security, Data And Backup Warranty .

XERPA warrants that XERPA will use commercially reasonable efforts to safeguard and accurately maintain Subscriber Data, consistent with industry security standards and backup procedures. In the event of a breach of this Section 6.4, XERPA shall use commercially reasonable efforts to correct Subscriber Data or restore Subscriber Data as quickly as possible, but in any case not to exceed three (3) business days.

6.5  Warranty of Title.

XERPA warrants that XERPA is the owner of the Service or otherwise has the right to provide the Service to you as set forth in this Agreement without violating any proprietary rights of any third parties.

6.6  Disclaimer.

Except as provided in this Section 6, XERPA disclaims, to the extent authorized by law, any and all warranties, whether statutory, express or implied, including, without limitation, (i) warranties of merchantability, fitness for a particular purpose, or workmanlike effort; (ii) warranties arising through course of dealings or usage of trade; and (iii) warranties that the Service will be error free. Without limiting the foregoing, XERPA expressly disclaims any warranty that the Service will meet your requirements. You assume responsibility for selecting the Service to achieve your intended results, and for the results obtained from your use of the Service. You shall bear the entire risk as to your use of the Service in accordance with the Documentation. This disclaimer applies to any expenses, damages or injury, regardless of the cause, whether for breach of contract, strict liability, tortuous behavior, negligence, or for any other cause of action.

6.7  No Other Warranties.

No advice or information provided by XERPA shall create any warranty.

 

7.    Limitation of Liability.

7.1  Limitation of Liability.

In no event shall either party be liable to the other or any other party for any indirect, incidental, consequential, special, exemplary, or punitive damages (including damages for business profits, business interruption, loss of business information or similar losses), even if advised of the possibility of such damages. This limitation on liability set forth in this Section 7.1 is independent of your exclusive remedy and survives in the event such remedy is deemed unenforceable.

7.2  Limitation on Damages.

To the maximum extent permitted by law, except for a breach of section 3.4, 4, 5.5 or 8.1, XERPA’s cumulative liability to you, your affiliates, or any other party related to you for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this agreement shall be limited to the amount of subscription service fees for the Service for twelve (12) months, aggregate for all occurrences. This limitation applies to all causes of action or claims in the aggregate, including, without limitation, breach of contract, negligence, strict liability, and other torts.

7.3  Application of Limitations.

All limitations on liability, damages and claims are intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective.

7.4  No Third Party Representations or Warranties.

No third party is authorized by XERPA to make any representation or warranty to you regarding the Service.

8.    Indemnification.

8.1  By XERPA.

XERPA will, at its expense, indemnify and hold you harmless against any claims made by an unaffiliated third party that the Service infringes its Intellectual Property Rights; provided (i) you notify XERPA, in writing, not later than 20 days after you receive notice of the claim, (ii) you give XERPA sole control of the defense and any settlement negotiations, and (iii) you cooperate with XERPA in defending against or settling the claim. XERPA’s obligation of indemnification will not apply to the extent that the claim is based on (a) your and/or your Affiliates’ use of the Service after XERPA notifies you to discontinue use due to such a claim, (b) your combining the Service with non-XERPA service, product, data or business process including third party add-ons or programs, (c) damages attributable to the value of the use of a non-XERPA service, product, data or business process, (d) your altering or modifying the Service, including any modifications by third parties, or (e) your use of the Service in violation of this Agreement. You will reimburse XERPA for any costs or damages that result from these actions. If XERPA receives information concerning an infringement or misappropriation claim related to the Service, XERPA may, at its expense and without obligation to do so, either (y) procure for you the right to continue to use the Service, or (z) modify the Service with a functional equivalent, to make it non-infringing. If, as a result of an infringement or misappropriation claim, your use of the Service is enjoined by a court of competent jurisdiction, XERPA will, at its option, either procure the right to continue its use, replace it with a functional equivalent, modify it to make it non-infringing, or refund the Subscription Service Fees paid and terminate this Agreement. This Section 8.1 constitutes your exclusive remedy for third party infringement and trade secret misappropriation claims.

8.2  By Subscriber.

You shall indemnify, defend and hold harmless XERPA from and against any and all claims, proceedings, damages, liability and costs (including reasonable attorneys’ fees) incurred by XERPA in connection with any claim arising out of (i) any breach or alleged breach of any of your obligations set forth in this Agreement, and (ii) your or your Affiliates’ use of the Service, or the use by any party related to you, or any party acting upon your authorization in a manner that is not expressly authorized by this Agreement, regardless of the type or nature of the claim. You shall cooperate as fully as reasonably required in the defense of any claim. XERPA reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without the written consent of XERPA.

9.    Third Party Applications.

9.1  No Warranty of Third Party Applications.

XERPA does not warrant any Third Party Application regardless of who you may purchase or license the application from.

9.2  Use of Third Party Application .

Any agreement for use by you of a Third Party Application is solely between you and the applicable third party provider. You may not use a Third Party Application to enter and/or submit transactions to be processed and/or stored in the Service, unless you have procured the applicable license or subscription to do so.

9.3  No Obligation As to Third Party Application.

XERPA is not responsible for any aspect of a Third Party Application that you may purchase, license, subscribe to or connect to through the Service, or any interoperation or other information related to the foregoing. If you install or enable a Third Party Application for use with Service, you agree that XERPA may enable such third party provider to access Subscriber Data for the interoperation of such Third Party Application with the Service. XERPA is not responsible for any exchange of data or other interaction between you and a third party provider of the Third Party Application. Any such exchange or interaction is solely between you and such third party provider and is subject to a separate privacy policy or other terms governing your access to or use of the Third Party Application. XERPA shall not be responsible for any disclosure, modification, corruption or deletion of Subscriber Data resulting from any such access by a Third Party Application for third party providers.

10. Term; Suspension of the Service; Termination.

 

10.1     Term of Agreement.

The initial term of this Agreement for the Service commences as provided in your XERPA Order Form. The length of the initial term of this Agreement for the Service is set forth in your XERPA Order Form. It is your responsibility to contact XERPA regarding any potential expiration that you deem inappropriate. This Agreement will terminate upon expiration of the initial term or any renewal term should you fail to renew this Agreement. XERPA is not liable for any damages or costs incurred in connection with expiration of the Service.

 

10.2     Suspension of the Service.

XERPA reserves the right to suspend your and your Affiliates’ access to and /or use of the Service:

(a) if any payment for the Service is due but unpaid but only after XERPA has provided you with at least 30 days’ prior written notice, or

(b) if XERPA reasonably determines that your use of the Service is being used to engage in denial of service attacks, spamming, or illegal activity, and/or your use of the Service is causing immediate, material and ongoing harm to XERPA or others. In the event XERPA suspends access to the Service pursuant to Section 10.2(b), XERPA will use commercially reasonable efforts to limit the suspension to the offending portion of the Service and work with you to resolve the issues which resulted in the suspension of the Service. XERPA shall not be liable to you nor to any third party for any suspension of the Service under such circumstances as described in this Section. Any suspension pursuant to this Section shall not relief you of your obligation to make payments for the Service.

10.3     Termination.

Either Party may terminate this Agreement:

(i)              upon thirty (30) days prior written notice to the other Party of a material breach by the other Party if such breach remains uncured at the expiration of such notice period, or

(ii)             immediately in the event the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. XERPA may terminate this Agreement upon thirty (30) days prior written notice to you if you fail to pay the Subscription Service Fees and do not cure such failure within the 30 day notice period. You may terminate this Agreement upon fifteen (15) days prior written notice to XERPA if XERPA fails to meet a 99.5% Monthly Uptime Percentage (as defined in the Schedule 1) for three (3) consecutive months. Upon any termination by you pursuant to this section, XERPA shall refund to you any prepaid Subscription Service Fees for the affected Service that were to be provided after the effective date of termination.

10.4     Effect of Termination.

Upon any termination of this Agreement, you shall, as of the date of such termination, immediately cease accessing and otherwise utilizing the Service and XERPA Confidential Information. Termination for any reason shall not relieve you of the obligation to pay any Subscription Service Fees accrued or due and payable prior to the effective date of termination, and termination for any reason other than for uncured material breach by XERPA shall not relieve you of the obligation to pay all future amounts due.

 

10.5     Surviving Provisions.

The following provisions of this Agreement shall survive the termination of this Agreement; Sections 3.1, 3.3, 3.4, 3.6, 3.7, 4, 5, 6, 7, 8, 9.1, 10.4, 10.5, and 11

11.  General Provisions.

 

11.1     Additional Products and Services.

You acknowledge that other agreements found at www.XERPA.com/agreements shall apply if other XERPA products or services are ordered or activated. Such other agreements do not apply to the Service covered by this Agreement.

11.2     Relationship of the Parties.

The parties are independent contractors. This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.

11.3     Notices.

All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the third business day after first class mailing; or (iii) the second business day after sending by facsimile with telephonic confirmation of receipt. Notices to XERPA shall be addressed to Attn: Legal Department, XERPA, Inc. Notices to you shall be addressed to your contact provided to XERPA. Each Party may modify its recipient of notices by providing notice pursuant to thisAgreement.

11.4     Waiver.

No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right or any other right.

11.5     Force Majeure .

Except for your payment obligations, neither Party shall be liable for any failure or delay in performance under this Agreement for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving XERPA or your employees, respectively). Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

11.6     Assignment.

Neither Party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other Party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety without consent of the other Party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets so long as the assignee agrees to be bound by all of the terms of this Agreement and all past due Subscription Service Fees are paid in full. Any attempt by a Party to assign its rights or obligations under this Agreement other than as permitted by this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

11.7     Governing Law;

Waiver of Jury Trial. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Washington, USA, without regard to its conflicts of law rules. Any claim or dispute arising in connection with this Agreement shall be resolved in the federal or state courts situated in the State of Washington. To the maximum extent permitted by law, you hereby consent to the jurisdiction and venue of such courts and waive any objections to the jurisdiction or venue of such courts. You and XERPA agree that the Uniform Computer Information Transactions Act (UCITA) as adopted in any state, in which this Agreement may be performed, shall not apply to this Agreement. Each Party waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

11.8     Export.

Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Service. Without limiting the generality of the foregoing, you shall not make the Service available to any person or entity that: (i) is located in a country that is subject to a U.S. government embargo; (ii) is listed on any U.S. government list of prohibited or restricted parties; or (iii) is engaged in activities directly or indirectly related to the proliferation of weapons of mass destruction.

11.9     Use of Subscriber’s Name .

Unless you provide XERPA with written notice to the contrary, you give XERPA the right to use your name in print, on-line, and in other multimedia advertising and marketing materials for the purpose of disclosing that you are a customer of XERPA.

11.10   Modification of Terms.

XERPA reserves the right from time to time to modify the terms under which the Service is provided to its subscribers, including you, and as a result to modify the terms and conditions of this Agreement. If XERPA makes a material change to any of the terms of this Agreement, then XERPA will notify you by either sending an email to the notification email address or by mail to the mailing address which has been provided to XERPA. The current version of the XERPA Cloud Subscription Business SaaS Services Agreement can also be found on www.XERPA.com/agreements. If the change has a material adverse impact on you and you do not agree to the change, you must so notify XERPA in writing within thirty (30) days after receiving notice of the change. If you notify XERPA as set forth in this Section 11.11, then your use of the Service will remain governed by the Agreement as in effect immediately prior to the change until the end of the then current subscription term for the Service. If you renew the Service at the end of the then current term, it will be renewed under XERPA’s then current XERPA Cloud ERP Subscription SaaS Services Agreement.

11.10  Miscellaneous.

This Agreement, including all schedules and exhibits to this Agreement, together with your XERPA Order Form, constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement. This Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as provided in Section 11.11, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. Notwithstanding any language to the contrary therein, no terms or conditions stated in a purchase order or in any other order documentation you submit shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

 

12. General Provisions.

 

12.1     Standard charges

The standard charges for the XERPA subscription and the Services are based on the subscription package, number of Users and the installed Apps used by the Customer, and specified in the order form at the moment of purchase of the subscription.

When during the Term, the Customer has more Users or more installed Apps than specified at the time of conclusion of this Agreement, the Customer agrees to pay an extra fee equivalent to the applicable list price (at the beginning of the Term) for the additional Users or Apps, for the remainder of the Term.

12.2     Renewal charges

Upon renewal, if the charges applied during the previous Term (excluding any “Initial User Discounts”) are lower than the most current applicable list price, these charges will increase by up to 7% every year

12.3     Taxes

All fees and charges are exclusive of all applicable federal, provincial, state, local or other governmental taxes, fees or charges (collectively, “Taxes”). The Customer is responsible for paying all Taxes associated with purchases made by the Customer under this Agreement, except when XERPA INC is legally obliged to pay or collect Taxes for which the Customer is responsible.

Uptime – 99 %

 

XERPA will use commercially reasonable efforts to make Service Instances (defined below) available with a Monthly Uptime Percentage (defined below) of at least 99 % during any month of the year (the "Service Commitment").

In the event XERPA does not meet the Monthly Uptime Percentage commitment, you will be eligible to receive a Service Credit as described below.

Definitions

       "Monthly Uptime Percentage" for a given Service Instance is calculated by subtracting from 100% the percentage of 1 minute periods during the month in which the Service Instance was "Unavailable". If you have been running that Service Instance for only part of the month, your Service Instance is assumed to be 100% available for the portion of the month that it was not running. Monthly Uptime Percentage measurements exclude downtime resulting directly or indirectly from any XERPA SLA Exclusion (defined below).

       "Service Instance" means an XERPA SaaS service instance. • "Unavailable" means that all connection requests to the running Service Instance fail during a 1 minute period.

       A "Service Credit" is a dollar credit, calculated as set forth below, that XERPA may credit to an eligible account. Service Credits Service Credits are calculated as a percentage of the value of the Service for the month, based on current list price, in which XERPA SaaS did not meet the Monthly Uptime Percentage commitment.

 

Monthly Uptime Percentage Service Credit Percentage (per month) Less than 99.5% but equal to or greater than 99.0% 10% Less than 99.0% 20% Service Credits will not entitle you to any refund or other payment you may owe to XERPA or an XERPA provider.

 

A Service Credit will be applicable and issued only if the credit amount is greater than one United States Dollar ($1 USD).

 

You are not entitled to a Service Credit if the Monthly Uptime Percentage is 99% or greater. Credit Request and Payment Procedures To receive a Service Credit, you will need to submit a claim by sending an email to SLA@XERPA.CLOUD

 

To be eligible, the credit request must be received by us within 30 days of the occurrence of the incident and must include:

i. the words "SLA Credit Request" in the subject line;

ii. the dates and times of each Unavailability incident you are claiming;

iii. the XERPA URL of the affected service instances; and

iv. your request logs or screen shots that document the errors and corroborate your claimed outage (any confidential or sensitive information in these logs should be removed or replaced with asterisks).

If the Monthly Uptime Percentage of such request is confirmed by us and is less than the Service Commitment, then XERPA will issue the Service Credit to you within 90 days of your request. Your failure to provide the request and other information as required above will disqualify you from receiving a Service Credit. XERPA will notify you within 90 days if your Service Credit request is denied for any reason.

 

XERPA SLA Exclusions The Service Commitment does not apply to any unavailability, suspension or termination of XERPA Service, or any other XERPA performance issues:

(a) that result from a suspension due to non-payment of Subscription Service Fees,

(b) that result from your failure to upgrade to a Supported Version of the Service,

(c) caused by factors outside of our reasonable control, including any force majeure event or Internet access or related problems beyond the demarcation point of XERPA and its providers, (d) that result from any voluntary actions or inactions from you or any third party (e.g., snapshot restores, customization publishing, not scaling storage when the storage is close to full, misconfiguring security groups, VPC configurations or credential settings, etc.),

(e) that result from you not following the guidelines described in the XERPA Licensing Guide,

(f) that result in long recovery time due to insufficient resource level capacity purchased for your database workload,

(g) that result from your equipment, software or other technology and/or third-party equipment, software or other technology (other than third party equipment within our direct control),

(h) that result from any regularly scheduled maintenance as provided for pursuant to the Agreement, or

(i) arising from our suspension and termination of your right to use XERPA in accordance with the Agreement (collectively, the "XERPA SLA Exclusions"). If availability is impacted by factors other than those explicitly used in our Monthly Uptime Percentage calculation, then XERPA may issue a Service Credit considering such factors at our discretion. This SLA applies separately to each account using XERPA Service.

 

 

High Availability

  • Our data centers are Tier-III certified or equivalent, with N+1 redundancy for power, network and cooling

  • Each customer database is replicated in real-time on redundant storage located in the same data center, so a failover can happen quickly in case of hardware failure, with no data loss.

 

Backups & Disaster Recovery

  • 14 full backups for at least 3 months: 1/day for 7 days, 1/week for 4 weeks, 1/month for 3+ months

  • Users can download manual backups of their live data at any time

 

Security

The safety of your data is very important to us, and we design our systems and procedures to guarantee it. Some highlights are

  • SSL  - All web connections to client instances are protected with 256-bit SSL encryption (HTTPS with a 2048-bit modulus SSL certificate), and running behind Grade-A SSL stacks. All our certificates chains are using SHA-2 already.

  • Reliable Platform  - Servers with full hardware guarantee, redundant data storage, network and electrical supplies

  • Passwords  - Customer passwords are protected with industry-standard PBKDF2+SHA512 encryption (salted + stretched for thousands of rounds)

  • Safe Systems -  Our servers are running recent Linux distribution with up-to-date security patches, with firewall and intrusion counter-measures (not disclosed for obvious reasons) 

  • Isolation -  Client data stored in dedicated databases - no sharing of data between clients, no access possible from one database to another

XERPA collects some Personal Data from its Users.

Users may be subject to different protection standards and broader standards may therefore apply to some. In order to learn more about the protection criteria, Users can refer to the applicability section.

This document can be printed for reference by using the print command in the settings of any browser.

Owner and Data Controller

XERPA Inc 3422 Old Capitol Trail, Suite 700 Wilmington, DE 19808 USA

Owner contact email:  privacy@XERPA.com

Types of Data collected

Among the types of Personal Data that XERPA collects, by itself or through third parties, there are: Cookies; Usage Data; email address; first name; last name; date of birth; Email; gender; company name; phone number.

Complete details on each type of Personal Data collected are provided in the dedicated sections of this privacy policy or by specific explanation texts displayed prior to the Data collection. Personal Data may be freely provided by the User, or, in case of Usage Data, collected automatically when using XERPA. Unless specified otherwise, all Data requested by XERPA is mandatory and failure to provide this Data may make it impossible for XERPA to provide its services. In cases where XERPA specifically states that some Data is not mandatory, Users are free not to communicate this Data without consequences to the availability or the functioning of the Service. Users who are uncertain about which Personal Data is mandatory are welcome to contact the Owner. Any use of Cookies – or of other tracking tools – by XERPA or by the owners of third-party services used by XERPA serves the purpose of providing the Service required by the User, in addition to any other purposes described in the present document and in the Cookie Policy, if available.

Users are responsible for any third-party Personal Data obtained, published or shared through XERPA and confirm that they have the third party's consent to provide the Data to the Owner.

Mode and place of processing the Data

Methods of processing

The Owner takes appropriate security measures to prevent unauthorized access, disclosure, modification, or unauthorized destruction of the Data. The Data processing is carried out using computers and/or IT enabled tools, following organizational procedures and modes strictly related to the purposes indicated. In addition to the Owner, in some cases, the Data may be accessible to certain types of persons in charge, involved with the operation of XERPA (administration, sales, marketing, legal, system administration) or external parties (such as third-party technical service providers, mail carriers, hosting providers, IT companies, communications agencies) appointed, if necessary, as Data Processors by the Owner. The updated list of these parties may be requested from the Owner at any time.

Legal basis of processing

The Owner may process Personal Data relating to Users if one of the following applies:

    Users have given their consent for one or more specific purposes. Note: Under some legislations the Owner may be allowed to process Personal Data until the User objects to such processing (“opt-out”), without having to rely on consent or any other of the following legal bases. This, however, does not apply, whenever the processing of Personal Data is subject to European data protection law;

    provision of Data is necessary for the performance of an agreement with the User and/or for any pre-contractual obligations thereof;

    processing is necessary for compliance with a legal obligation to which the Owner is subject;

    processing is related to a task that is carried out in the public interest or in the exercise of official authority vested in the Owner;

    processing is necessary for the purposes of the legitimate interests pursued by the Owner or by a third party.

In any case, the Owner will gladly help to clarify the specific legal basis that applies to the processing, and in particular whether the provision of Personal Data is a statutory or contractual requirement, or a requirement necessary to enter into a contract.

Place

The Data is processed at the Owner's operating offices and in any other places where the parties involved in the processing are located. 

 Depending on the User's location, data transfers may involve transferring the User's Data to a country other than their own. To find out more about the place of processing of such transferred Data, Users can check the section containing details about the processing of Personal Data.

If broader protection standards are applicable, Users are also entitled to learn about the legal basis of Data transfers to a country outside the European Union or to any international organization governed by public international law or set up by two or more countries, such as the UN, and about the security measures taken by the Owner to safeguard their Data. 

 If any such transfer takes place, Users can find out more by checking the relevant sections of this document or inquire with the Owner using the information provided in the contact section.

Retention time

Personal Data shall be processed and stored for as long as required by the purpose they have been collected for.

Therefore:

    Personal Data collected for purposes related to the performance of a contract between the Owner and the User shall be retained until such contract has been fully performed.

    Personal Data collected for the purposes of the Owner’s legitimate interests shall be retained as long as needed to fulfill such purposes. Users may find specific information regarding the legitimate interests pursued by the Owner within the relevant sections of this document or by contacting the Owner.

The Owner may be allowed to retain Personal Data for a longer period whenever the User has given consent to such processing, as long as such consent is not withdrawn. Furthermore, the Owner may be obliged to retain Personal Data for a longer period whenever required to do so for the performance of a legal obligation or upon order of an authority. 

 Once the retention period expires, Personal Data shall be deleted. Therefore, the right to access, the right to erasure, the right to rectification and the right to data portability cannot be enforced after expiration of the retention period.

The purposes of processing

The Data concerning the User is collected to allow the Owner to provide its Service, comply with its legal obligations, respond to enforcement requests, protect its rights and interests (or those of its Users or third parties), detect any malicious or fraudulent activity, as well as the following: Analytics, Remarketing and behavioral targeting, User database management, Tag Management, Heat mapping and session recording, Traffic optimization and distribution, RSS feed management, Hosting and backend infrastructure, Advertising, Displaying content from external platforms, Registration and authentication, Managing contacts and sending messages, Contacting the User, Handling payments, Platform services and hosting, Managing landing and invitation pages, Content performance and features testing (A/B testing) and Information collection.

For specific information about the Personal Data used for each purpose, the User may refer to the section “Detailed information on the processing of Personal Data”.

Detailed information on the processing of Personal Data

Personal Data is collected for the following purposes and using the following services:

                                     Advertising This type of service allows User Data to be utilized for advertising communication purposes displayed in the form of banners and other advertisements on XERPA, possibly based on User interests. This does not mean that all Personal Data are used for this purpose. Information and conditions of use are shown below. Some of the services listed below may use Cookies to identify Users or they may use the behavioral retargeting technique, i.e. displaying ads tailored to the User’s interests and behavior, including those detected outside XERPA. For more information, please check the privacy policies of the relevant services. In addition to any opt out offered by any of the services below, the User may opt out of a third-party service's use of cookies by visiting the  Network Advertising Initiative opt-out page . Google AdSense (Google Inc.) Google AdSense is an advertising service provided by Google Inc. This service uses the “Doubleclick” Cookie, which tracks use of XERPA and User behavior concerning ads, products and services offered.

                                     Users may decide to disable all the Doubleclick Cookies by clicking on: google.com/settings/ads/onweb/optout. Personal Data processed: Cookies; Usage Data. Place of processing: US –  Privacy Policy  –  Opt Out . Google Ad Manager Google Ad Manager is an advertising service provided by Google LLC or by Google Ireland Limited, depending on the location XERPA is accessed from, that allows the Owner to run advertising campaigns in conjunction with external advertising networks that the Owner, unless otherwise specified in this document, has no direct relationship with. In order to opt out from being tracked by various advertising networks, Users may make use of Youronlinechoices. In order to understand Google's use of data, consult  Google's partner policy .

                                     This service uses the “DoubleClick” Cookie, which tracks use of XERPA and User behavior concerning ads, products and services offered.   Users may decide to disable all the DoubleClick Cookies by clicking on: www.adssettings.google.com/authenticated?hl=en. Personal Data processed: Cookies; Usage Data. Place of processing: United States –  Privacy Policy ; Ireland –  Privacy Policy . 




                                     Analytics The services contained in this section enable the Owner to monitor and analyze web traffic and can be used to keep track of User behavior. Google Analytics (Google Inc.) Google Analytics is a web analysis service provided by Google Inc. (“Google”). Google utilizes the Data collected to track and examine the use of XERPA, to prepare reports on its activities and share them with other Google services.

                                     Google may use the Data collected to contextualize and personalize the ads of its own advertising network. Personal Data processed: Cookies; Usage Data. Place of processing: US –  Privacy Policy  –  Opt Out . Google Ads conversion tracking (Google Inc.) Google Ads conversion tracking is an analytics service provided by Google LLC or by Google Ireland Limited, depending on the location XERPA is accessed from, that connects data from the Google Ads advertising network with actions performed on XERPA. Personal Data processed: Cookies; Usage Data. Place of processing: US –  Privacy Policy . User ID extension for Google Analytics (Google Inc.) Google Analytics on XERPA makes use of a feature called User ID. This setup allows for a more accurate tracking of Users by associating that User with the same ID over various sessions and devices. It is set up in a way that doesn’t allow Google to personally identify an individual or permanently identify a particular device.

                                     The User ID extension might make it possible to connect Data from Google Analytics with other Data about the User collected by XERPA.

                                     The opt-out link below will only opt you out for the device you are on, but not from tracking performed independently by the Owner. Contact the Owner via the email address provided in this privacy policy to object to the aforementioned tracking as well. Personal Data processed: Cookies. Place of processing: US –  Privacy Policy  –  Opt Out . Analytics collected directly (XERPA) XERPA uses an internal analytics system that does not involve third parties. Personal Data processed: Cookies; Usage Data.

                                    

                                     Purpose

                                     Customer relationship management by means of subscription analytics & user engagement tracking

                                    

                                     Personal Data collected

                                     Email address

                                     Application usage data

                                     Cookie

                                     Subscription analytics (based on Stripe) 




                                     Contacting the User Phone contact (XERPA) Users that provided their phone number might be contacted for commercial or promotional purposes related to XERPA, as well as for fulfilling support requests. Personal Data processed: phone number. Contact form (XERPA) By filling in the contact form with their Data, the User authorizes XERPA to use these details to reply to requests for information, quotes or any other kind of request as indicated by the form’s header. Personal Data processed: email address; first name; last name; phone number. 




                                     Content performance and features testing (A/B testing) The services contained in this section allow the Owner to track and analyze the User response concerning web traffic or behavior regarding changes to the structure, text or any other component of XERPA. Google Optimize Google Optimize is an A/B testing service provided by Google LLC or by Google Ireland Limited, depending on the location XERPA is accessed from, ("Google"). Google may use Personal Data to contextualize and personalize the ads of its own advertising network. Personal Data processed: Cookies; Usage Data. Place of processing: United States –  Privacy Policy ; Ireland –  Privacy Policy . 




                                     Displaying content from external platforms This type of service allows you to view content hosted on external platforms directly from the pages of XERPA and interact with them. This type of service might still collect web traffic data for the pages where the service is installed, even when Users do not use it. Google Fonts (Google Inc.) Google Fonts is a typeface visualization service provided by Google LLC or by Google Ireland Limited, depending on the location XERPA is accessed from, that allows XERPA to incorporate content of this kind on its pages. Personal Data processed: Usage Data; various types of Data as specified in the privacy policy of the service. Place of processing: US –  Privacy Policy .

                                     Handling payments Payment processing services enable XERPA to process payments by credit card, bank transfer or other means. To ensure greater security, XERPA shares only the information necessary to execute the transaction with the financial intermediaries handling the transaction. Some of these services may also enable the sending of timed messages to the User, such as emails containing invoices or notifications concerning the payment. Stripe (Stripe Inc) Stripe is a payment service provided by Stripe Inc. Personal Data processed: various types of Data as specified in the privacy policy of the service. Place of processing: US –  Privacy Policy . 




                                     Heat mapping and session recording Heat Mapping services are used to display the areas of a page where Users most frequently move the mouse or click. This shows where the points of interest are. These services make it possible to monitor and analyze web traffic and keep track of User behavior. Some of these services may record sessions and make them available for later visual playback. Hotjar Heat Maps & Recordings (Hotjar Ltd.) Hotjar is a session recording and heat mapping service provided by Hotjar Ltd.

                                     Hotjar honors generic „Do Not Track” headers. This means the browser can tell its script not to collect any of the User's data. This is a setting that is available in all major browsers. Find Hotjar’s  opt-out information here . Personal Data processed: Cookies; Usage Data; various types of Data as specified in the privacy policy of the service. Place of processing: Malta –  Privacy Policy  –  Opt Out . 




                                     Hosting and backend infrastructure This type of service has the purpose of hosting Data and files that enable XERPA to run and be distributed as well as to provide a ready-made infrastructure to run specific features or parts of XERPA. Some of these services work through geographically distributed servers, making it difficult to determine the actual location where the Personal Data are stored. GitHub Pages (GitHub Inc.) GitHub Pages is a hosting service provided by GitHub, Inc. Personal Data processed: various types of Data as specified in the privacy policy of the service. Place of processing: US –  Privacy Policy . LINODE.com Linode Cloud Storage is a hosting service provided by Google Inc. Personal Data processed: various types of Data as specified in the privacy policy of the service. Place of processing: US –  Privacy Policy. 




                                     Information collection Refiner This service has the purpose of surveying users/customers in an automated, regulary way to probe for things like customer happiness, where they found out about us, etc.

                                    

                                     Personal Data collected

                                     Email address

                                     Name

                                     Company name

                                     Data about usage of XERPA

                                     Cookies

                                     Visit data

                                    

                                     Place of processing: US

                                     Managing contacts and sending messages This type of service makes it possible to manage a database of email contacts, phone contacts or any other contact information to communicate with the User. These services may also collect data concerning the date and time when the message was viewed by the User, as well as when the User interacted with it, such as by clicking on links included in the message. Mailchimp (The Rocket Science Group, LLC.) Mailchimp is an email address management and message sending service provided by The Rocket Science Group LLC. Personal Data processed: email address. Place of processing: US –  Privacy Policy . Sendgrid (Sendgrid) Sendgrid is an email address management and message sending service provided by Sendgrid Inc. Personal Data processed: email address. Place of processing: US –  Privacy Policy . 




                                     Managing landing and invitation pages This type of service helps with building and managing landing and invitation pages, i.e., pages for presenting a product or service, where you may add your contact information such as an email address. Managing these pages means that these services will handle the Personal Data collected through the pages, including Usage Data. Unbounce (Unbounce Marketing Solutions Inc.) Unbounce is a landing page management service provided by Unbounce Marketing Solutions Inc., that allows XERPA to collect the email addresses of Users interested in its service.

                                     Unbounce allows the Owner to track and analyze the User response concerning web traffic or behavior regarding changes to the structure, text or any other component of the created landing pages. Personal Data processed: Cookies; email address; Usage Data. Place of processing: Canada –  Privacy Policy . 




                                     Platform services and hosting These services have the purpose of hosting and running key components of XERPA, therefore allowing the provision of XERPA from within a unified platform. Such platforms provide a wide range of tools to the Owner – e.g. analytics, user registration, commenting, database management, e-commerce, payment processing – that imply the collection and handling of Personal Data. Some of these services work through geographically distributed servers, making it difficult to determine the actual location where the Personal Data are stored. WordPress.com (Automattic Inc.) WordPress.com is a platform provided by Automattic Inc. that allows the Owner to build, run and host XERPA. Personal Data processed: various types of Data as specified in the privacy policy of the service. Place of processing: USA –  Privacy Policy . 




                                     Registration and authentication By registering or authenticating, Users allow XERPA to identify them and give them access to dedicated services. Depending on what is described below, third parties may provide registration and authentication services. In this case, XERPA will be able to access some Data, stored by these third-party services, for registration or identification purposes. Google OAuth Google OAuth is a registration and authentication service provided by Google Inc. and is connected to the Google network. Personal Data processed: various types of Data as specified in the privacy policy of the service. Place of processing: United States –  Privacy Policy ; Ireland –  Privacy Policy .                          Remarketing and behavioral targeting This type of service allows XERPA and its partners to inform, optimize and serve advertising based on past use of XERPA by the User. This activity is facilitated by tracking Usage Data and by using Trackers to collect information which is then transferred to the partners that manage the remarketing and behavioral targeting activity. Some services offer a remarketing option based on email address lists. In addition to any opt-out feature provided by any of the services below, Users may opt out by visiting the  Network Advertising Initiative opt-out page . Users may also opt-out of certain advertising features through applicable device settings, such as the device advertising settings for mobile phones or ads settings in general . Facebook Remarketing (Facebook, Inc.) Facebook Remarketing is a remarketing and behavioral targeting service provided by Facebook, Inc. that connects the activity of XERPA with the Facebook advertising network. Personal Data processed: Cookies; Usage Data. Place of processing: US –  Privacy Policy  –  Opt Out . Facebook Custom Audience (Facebook, Inc.) Facebook Custom Audience is a remarketing and behavioral targeting service provided by Facebook, Inc. that connects the activity of XERPA with the Facebook advertising network. Personal Data processed: Cookies; email address. Place of processing: US –  Privacy Policy  –  Opt Out . AdRoll (AdRoll, Inc.) AdRoll is an advertising service provided by AdRoll, Inc. Personal Data processed: Cookies; Usage Data. Place of processing: US –  Privacy Policy  –  Opt Out . Google Ads Remarketing (Google Inc.) Google Ads Remarketing is a remarketing and behavioral targeting service provided by Google LLC or by Google Ireland Limited, depending on the location XERPA is accessed from, that connects the activity of XERPA with the Google Ads advertising network and the DoubleClick Cookie. Users can opt out of Google's use of cookies for ads personalization by visiting Google's  Ads Settings . Personal Data processed: Cookies; Usage Data. Place of processing: US –  Privacy Policy  –  Opt Out . Remarketing with Google Analytics (Google Inc.) Remarketing with Google Analytics is a remarketing and behavioral targeting service provided by Google LLC or by Google Ireland Limited, depending on the location XERPA is accessed from, that connects the tracking activity performed by Google Analytics and its Cookies with the Google Ads advertising network and the Doubleclick Cookie. Personal Data processed: Cookies; Usage Data. Place of processing: US –  Privacy Policy  –  Opt Out . 




                                     Traffic optimization and distribution This type of service allows XERPA to distribute their content using servers located across different countries and to optimize their performance. Which Personal Data are processed depends on the characteristics and the way these services are implemented. Their function is to filter communications between XERPA and the User's browser. Considering the widespread distribution of this system, it is difficult to determine the locations to which the contents that may contain Personal Information of the User are transferred. Cloudflare (Cloudflare) Cloudflare is a traffic optimization and distribution service provided by Cloudflare Inc.

                                     The way Cloudflare is integrated means that it filters all the traffic through XERPA, i.e., communication between XERPA and the User's browser, while also allowing analytical data from XERPA to be collected. Personal Data processed: Cookies; various types of Data as specified in the privacy policy of the service. Place of processing: US –  Privacy Policy . 




                                     User database management This type of service allows the Owner to build user profiles by starting from an email address, a personal name, or other information that the User provides to XERPA, as well as to track User activities through analytics features. This Personal Data may also be matched with publicly available information about the User (such as social networks' profiles) and used to build private profiles that the Owner can display and use for improving XERPA. Some of these services may also enable the sending of timed messages to the User, such as emails based on specific actions performed on XERPA

                                     Providing Customer Relationship Management Services

                                    

                                     Personal Data collected

                                     As user identification, i.e. to identify you as user of XERPA's services:

                                     - Email address & Name

                                    

                                     As part of the Services, i.e. to help you manage your customer data:

                                     - Email data: With the purpose of creating contacts, compiling email timelines, providing email tracking services, creating automated follow up tasks, calculating lead scoring and importing email signatures.

                                     - Calendar data: With the purpose of creating contacts, compiling calendar timelines and creating automated follow up tasks.

                                     - Contact data: With the purpose of automatically importing these contacts into your customer database.

                                    

                                     Google User Data

                                     XERPA's use of information received from Google APIs will adhere to  Google API Services User Data Policy , including the Limited Use requirements.

                                    

                                     Data Processing Agreement

                                     The Data Processing Agreement (DPA) further outlines roles and responsibilities with regard to the managing, securing and/or processing of personal data and the obligations to comply with the Privacy Legislation.

                                    

                                     To request a Data Processing Agreement for signature,  fill out the form here . You can find a sample of the agreement  here . 




Further information about Personal Data

                                     XERPA is a Business Management service provided by XERPA BVBA. 

 Purpose Customer relationship management 

 Personal Data collected Email address Various types of data as specified in the privacy policy and data processing agreement (DPA) of the service Cookies Visit data 

 Data Processing Agreement To request a Data Processing Agreement for signature,  fill out the form here . 




                                     Push notifications XERPA may send push notifications to the User. 




                                     The Service is not directed to children under the age of 13 Users declare themselves to be adult according to their applicable legislation. Minors may use XERPA only with the assistance of a parent or guardian. Under no circumstance persons under the age of 13 may use XERPA. 




The rights of Users

Users may exercise certain rights regarding their Data processed by the Owner.

Users entitled to broader protection standards may exercise any of the rights described below. In all other cases, Users may inquire with the Owner to find out which rights apply to them.

In particular, Users have the right to do the following:

    Withdraw their consent at any time.  Users have the right to withdraw consent where they have previously given their consent to the processing of their Personal Data.

    Object to processing of their Data.  Users have the right to object to the processing of their Data if the processing is carried out on a legal basis other than consent. Further details are provided in the dedicated section below.

    Access their Data.  Users have the right to learn if Data is being processed by the Owner, obtain disclosure regarding certain aspects of the processing and obtain a copy of the Data undergoing processing.

    Verify and seek rectification.  Users have the right to verify the accuracy of their Data and ask for it to be updated or corrected.

    Restrict the processing of their Data.  Users have the right, under certain circumstances, to restrict the processing of their Data. In this case, the Owner will not process their Data for any purpose other than storing it.

    Have their Personal Data deleted or otherwise removed.  Users have the right, under certain circumstances, to obtain the erasure of their Data from the Owner.

    Receive their Data and have it transferred to another controller.  Users have the right to receive their Data in a structured, commonly used and machine readable format and, if technically feasible, to have it transmitted to another controller without any hindrance. This provision is applicable provided that the Data is processed by automated means and that the processing is based on the User's consent, on a contract which the User is part of or on pre-contractual obligations thereof.

    Lodge a complaint.  Users have the right to bring a claim before their competent data protection authority.

Details about the right to object to processing

Where Personal Data is processed for a public interest, in the exercise of an official authority vested in the Owner or for the purposes of the legitimate interests pursued by the Owner, Users may object to such processing by providing a ground related to their particular situation to justify the objection.

Users must know that, however, should their Personal Data be processed for direct marketing purposes, they can object to that processing at any time without providing any justification. To learn, whether the Owner is processing Personal Data for direct marketing purposes, Users may refer to the relevant sections of this document.

How to exercise these rights

Any requests to exercise User rights can be directed to the Owner through the contact details provided in this document. These requests can be exercised free of charge and will be addressed by the Owner as early as possible and always within one month.

Applicability of broader protection standards

While most provisions of this document concern all Users, some provisions expressly only apply if the processing of Personal Data is subject to broader protection standards.

Such broader protection standards apply when the processing:

    is performed by an Owner based within the EU;

    concerns the Personal Data of Users who are in the EU and is related to the offering of paid or unpaid goods or services, to such Users;

    concerns the Personal Data of Users who are in the EU and allows the Owner to monitor such Users’ behavior taking place in the EU.

Cookie Policy

XERPA uses Trackers. To learn more, the User may consult the  Cookie Policy .

Additional information about Data collection and processing

Legal action

The User's Personal Data may be used for legal purposes by the Owner in Court or in the stages leading to possible legal action arising from improper use of XERPA or the related Services. The User declares to be aware that the Owner may be required to reveal personal data upon request of public authorities.

Additional information about User's Personal Data

In addition to the information contained in this privacy policy, XERPA may provide the User with additional and contextual information concerning particular Services or the collection and processing of Personal Data upon request.

System logs and maintenance

For operation and maintenance purposes, XERPA and any third-party services may collect files that record interaction with XERPA (System logs) use other Personal Data (such as the IP Address) for this purpose.

Information not contained in this policy

More details concerning the collection or processing of Personal Data may be requested from the Owner at any time. Please see the contact information at the beginning of this document.

How “Do Not Track” requests are handled

XERPA does not support “Do Not Track” requests. To determine whether any of the third-party services it uses honor the “Do Not Track” requests, please read their privacy policies.

Changes to this privacy policy

The Owner reserves the right to make changes to this privacy policy at any time by notifying its Users on this page and possibly within XERPA and/or - as far as technically and legally feasible - sending a notice to Users via any contact information available to the Owner. It is strongly recommended to check this page often, referring to the date of the last modification listed at the bottom. 

 Should the changes affect processing activities performed on the basis of the User’s consent, the Owner shall collect new consent from the User, where required.

Definitions and legal references

Personal Data (or Data)

Any information that directly, indirectly, or in connection with other information — including a personal identification number — allows for the identification or identifiability of a natural person.

Usage Data

Information collected automatically through XERPA (or third-party services employed in XERPA), which can include: the IP addresses or domain names of the computers utilized by the Users who use XERPA, the URI addresses (Uniform Resource Identifier), the time of the request, the method utilized to submit the request to the server, the size of the file received in response, the numerical code indicating the status of the server's answer (successful outcome, error, etc.), the country of origin, the features of the browser and the operating system utilized by the User, the various time details per visit (e.g., the time spent on each page within the Application) and the details about the path followed within the Application with special reference to the sequence of pages visited, and other parameters about the device operating system and/or the User's IT environment.

User

The individual using XERPA who, unless otherwise specified, coincides with the Data Subject.

Data Subject

The natural person to whom the Personal Data refers.

Data Processor (or Data Supervisor)

The natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Controller, as described in this privacy policy.

Data Controller (or Owner)

The natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of Personal Data, including the security measures concerning the operation and use of XERPA. The Data Controller, unless otherwise specified, is the Owner of XERPA.

XERPA (or this Application)

The means by which the Personal Data of the User is collected and processed.

Service

The service provided by XERPA as described in the relative terms (if available) and on this site/application.

European Union (or EU)

Unless otherwise specified, all references made within this document to the European Union include all current member states to the European Union and the European Economic Area.

Cookie

Cookies are Trackers consisting of small sets of data stored in the User's browser.

Tracker

Tracker indicates any technology - e.g Cookies, unique identifiers, web beacons, embedded scripts, e-tags and fingerprinting - that enables the tracking of Users, for example by accessing or storing information on the User’s device.

Email

Provides access to the User's primary email address.

 

 

Third Party Disclosure

Except as explicitly mentioned above, we do not sell, trade, or otherwise transfer your personal data to third parties. We may share or disclose aggregated or de-identified information, for research purposes, or to discuss trends or statistics with third-parties .

 

Cookies

Cookies are small bits of text sent by our servers to your computer or device when you access our services. They are stored in your browser and later sent back to our servers so that we can provide contextual content. Without cookies, using the web would be a much more frustrating experience. We use them to support your activities on our website, for example your session (so you don't have to login again) or your shopping cart.

Cookies are also used to help us understand your preferences based on previous or current activity on our website (the pages you have visited), your language and country, which enables us to provide you with improved services. We also use cookies to help us compile aggregate data about site traffic and site interaction so that we can offer better site experiences and tools in the future.

We also use third-party services such as Google Analytics, who set and use their own cookies to identify visitors and provide their own contextual services. For more information regarding those third-party providers and their Cookie Policy, please see the relevant references in the  Third-Party Service Providers  section.

Here is an overview of the cookies that may be stored on your device when you visit our website:

Category of Cookie

Purpose

Cookies

Session & Security

Authenticate users, protect user data and allow the website to deliver the services users expects, such as maintaining the content of their cart, or allowing file uploads. The website will not work properly if you reject or discard those cookies.

session_id (XERPA)

fileToken (XERPA)

__cfduid (CloudFlare)

Preferences

Remember information about the preferred look or behavior of the website, such as your preferred language, region and timezone. Your experience may be degraded if you discard those cookies, but the website will still work.

frontend_lang (XERPA)

XERPA_no_push (XERPA)

tz (XERPA)

Interaction History

Users to collect information about your interactions with the website, the pages you've seen, and any specific marketing campaign that brought you to the website. We may not be able to provide the best service to you if you reject those cookies, but the website will work.

im_livechat_history (XERPA)

im_livechat_previous_operator_pid (XERPA)

utm_campaign (XERPA)

utm_source (XERPA)

utm_medium (XERPA)

fs_uid (FullStory)

Advertising & Marketing

Used to make advertising more engaging to users and more valuable to publishers and advertisers, such as providing more relevant ads when you visit other websites that display ads or to improve reporting on ad campaign performance.

Note that some third-party services may install additional cookies on your browser in order identify you.

You may opt out of a third-party's use of cookies by visiting the  Network Advertising Initiative opt-out page . The website will still work if you reject or discard those cookies.

__gads (Google)

__gac (Google)

_fbp (Facebook)

Analytics

Understand how visitors engage with our website, via Google Analytics. Learn more about  Analytics cookies and privacy information.

 

The website will still work if you reject or discard those cookies.

_ga (Google)

_gat (Google)

_gid (Google)

_gac_* (Google)

 

Legal information

This privacy statement has been prepared based on provisions of multiple legislations, including Art. 13/14 of Regulation (EU) 2016/679 (General Data Protection Regulation).

This privacy policy relates solely to XERPA, if not stated otherwise within this document.

 

Whatsapp chatbot Support

If any query please ask to support team

We are fully compliant with the GDPR laws. We promise to safeguard your data and protect your privacy rights.