Welcome to Xactware
Thank you for choosing our products and services. The products and services are provided by Verisk Risk Rating Australia Pty Ltd, ACN 159 938 397, of Level 17, 324 Queen Street, Brisbane, QLD 4000, Australia on behalf of itself and its affiliates and subsidiaries (hereinafter referenced as “Xactware”, “we”, “our”, or “us”). For purposes of this agreement “you” means the individual accepting the terms of this EULA (as defined below).
If you need to contact us, you can do so on 61-1300 00 XACT (9228), or at firstname.lastname@example.org.
1. Binding Terms
1.1. You, or the company you are employed by (the “Xactware Customer”) has entered into a contract with us for access to and use of the Services as defined below (the “Services Agreement”) and they have requested that you be given access. You have no rights under that Services Agreement unless you are a party to it.
1.2. By using our Services you confirm that you have read, understood, and agree to the terms set out on this page, and that an enforceable contract (the “EULA”) comes into force between you, the end user, and us. If you do not agree to the EULA, you must not use the Services.
1.3. We may change the terms of the EULA from time to time by informing you (either through the Services, on our website, or otherwise), and the updated terms shall come into effect when you first use the Services after we have sent you information about the change. If you do not agree with any change to the terms of the EULA, you may terminate this Agreement by giving us written notice of your intent to terminate within at least thirty (30) days of the date you are notified of the change.
1.4. The EULA applies to these products and services, whether provided online, via a mobile device, or the desktop version: Xactimate, XactAnalysis, XactAnalysis SP, XactContents, ClaimXperience, ContentsTrack, OneXperience, Online Training Center, Allyne, Restoration Manager, Inspection Manager, Punchlist Manager, and Verisk Real Twiin (referenced herein as the “Services”).
2. License and Conditions of Use
2.1. Subject to the terms of this EULA, we grant you a non-exclusive, non-transferrable, temporary license to access and use the Services solely for the internal business purpose of the Xactware Customer, on computer(s) located at your office by you or any of your employees. As a condition for this license, you warrant and represent that you have a right to provide the Confidential Information as defined in 13.1. below to us, to upload the User Generated Content as defined in Section 5.1 below and to grant to the Xactware Customer and its service providers (including us) the rights and the use of such Confidential Information and User Generated Content for and in support of business needs and as required to perform the Services, and where permitted under this EULA, for other uses as you have granted us that right.
2.2. You may not assign, sub-license, or otherwise purport to transfer any of the rights granted to you under this EULA, and any such assignment, sub-licensing, or transfer shall be void.
2.3. In addition to any restrictions on access or use specified in the Services Agreement (which shall apply to you if you are an employee, contractor, or agent of the Xactware Customer), you may not:
(a) perform or attempt automated collection of information from the Services;
(b) decompile, reverse engineer, disassemble, modify, or create derivative works of the Services;
(c) make the Services (or your access to them) available to any other person, for remuneration or otherwise;
(d) use the Services other than in accordance with this EULA and applicable law;
(e) share a single user license of the Services with multiple users/individuals;
(f) create an archive or data base of the data received from the Services;
(g) make an electronic copy of the Services;
(h) use a desktop virtualization application (e.g., Citrix), cloud computing platform, or any other method to make a single user license of the Services available to multiple users; or
(i) you shall not use Verisk RealTwiin imagery for any high risk activities (such as the design, development, production, construction, stockpiling, support, maintenance, or use of chemical or biological weapons, rocket systems (including ballistic missile systems, space launch vehicles and sounding rockets, operation of nuclear facilities, air traffic control or life support systems, where the use of or failure of the Services could lead to death, personal injury or environmental change)).
3. Registration and Security
3.1. You represent and warrant that all information provided by you is accurate, current, and complete in all material respects, and undertake to:
(a) keep all registration and other information up to date; and
(b) choose strong and secure passwords, keep the passwords confidential and, other than with our prior written consent, not disclose the passwords to any other person for any purpose whatsoever.
3.2. You shall promptly notify us if you have grounds to suspect the loss, theft, or unauthorized disclosure of any passwords, and will be responsible for all use of the passwords until you have reported the loss, theft, or disclosure to us. Subject to the foregoing, you are responsible for all activities that occur using your passwords.
3.3. You agree not to attempt to bypass any security mechanism used in connection with the Services, or take any action which undermines the safety or security of the Services or any user.
3.4. You agree that we may monitor your use of the Services to validate your compliance with the terms of the EULA, and validate compliance by the Xactware Customer with the Services Agreement.
4. Compliance with Law
4.1. Each party hereby represents that it is and shall be in compliance with all applicable laws, regulatory requirements and regulations (including those governing the privacy and confidentiality and security of data) that relate to such party’s performance of its obligations under this EULA.
4.2. The Services may be subject to export and reexport control laws and regulations of the United States, Australia and New Zealand, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. Each party warrants that it is (1) not located in Cuba, Iran, North Korea, Sudan, or Syria, and (2) not a denied party as specified in the regulations listed above. Each party agrees to comply with all applicable export and reexport control laws and regulations, including the EAR, trade and economic sanctions maintained by OFAC, and the ITAR. Specifically, each party covenants that it shall not, directly or indirectly, sell, export, reexport, transfer, divert, or otherwise dispose of the product or any other products, software, or technology (including products derived from or based on such technology) received from or provided by Xactware under this EULA to any destination, entity, or person prohibited by the laws or regulations of the United States or New Zealand, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. Furthermore, you agree to indemnify, to the fullest extent permitted by law and independent of any limitation of liability, Xactware, and its service providers, licensors, designees and assigns from and against any fines or penalties that may arise as a result of your breach of this provision.
5. User Generated Content
5.1. Some of the Services may enable you and others to upload, share, or publish materials (“User Generated Content”). In doing so, you grant the Xactware Customer and our respective service providers a perpetual, non-exclusive, royalty free, sub-licensable and transferable right to use, display, copy, modify, disclose and create derivative works of such User Generated Content.
5.2. You represent and warrant, and shall ensure, that any material you upload, share, or publish:
(a) is accurate, correct, and not misleading;
(b) does not infringe the intellectual property rights, rights of privacy (including data privacy), or other rights of any person;
(c) does not contain any sensitive personal data, or protected health information;
(d) does not breach any law, regulatory guidance, or relevant code of conduct;
(e) is not obscene, pornographic, or otherwise objectionable, does not depict violent or sexual acts, and does not perpetuate hatred against any person;
(f) is not abusive, threatening, or defamatory, and does not have the likely effect of causing offence or harm; and
(g) does not contain any instructions (including software) which if implemented might cause damage or injury to any person or property (including intangible property such as data).
5.3. Neither the Xactware Customer not its service providers shall have responsibility to review any User Generated Content or Confidential Information submitted by you or any other person for compliance with this EULA or otherwise, or exercise any degree of editorial control, and you acknowledge that we are acting as a mere conduit. We may however remove, or suspend access to, any User Generated Content at any time in our absolute discretion.
6. Data Use and Ownership
6.1. Data Provided by Xactware for Use with the Licensed Product.
(i) All data provided by Xactware (including but not limited to the Price Data (as defined below)) to you for use with the Services are owned by Xactware and shall not be transferred, copied, or published (other than as part of the Work Product as defined below) by you or any of your employees, representatives, or agents in any form or format without Xactware’s express prior written permission.
(ii) “Price Data” shall mean any applicable pricing information authored by, or licensed to Xactware (including but not limited to Xactware’s copyrighted price lists, and data submitted to Xactware by a third party through a data feed) in an organized format for the specific limited purpose of estimating fixed residential and/or light commercial structural remodel and repair costs, that is compatible with the current version of the Services. This pricing information is provided for informational purposes only.
6.2. Anonymous Data and the Services.
(i) Xactware shall own all data from which assignee, assignor, and non-public client-specific information has been removed, which were created and/or extracted using the Services. Such data shall be referred to as “Anonymous Data”.
(ii) Analytical information provided by the Services is owned by Xactware. Use by you of information gathered from the Services is to be accompanied by appropriate acknowledgement of Xactware’s ownership of the information.
6.3. Work Product.
(i) The data generated using one or more Services (“Work Product”) is shared among the individuals or companies working on the transaction (e.g. the assignment or the estimate). You agree to grant to Xactware a perpetual unlimited license to use and have access to the Work Product.
7. Other Users and Third-Party Services
7.1. No contractual relationship may be formed between you and any other user of the Services as a result of your interaction via the Services. Any such relationships must be entered into using an alternative means of communication.
7.2. We have no responsibility for your arrangements with other users and shall have no liability with respect to any dispute between you and another user. You agree to address such disputes directly to the other user.
7.3. You acknowledge that the transmission of messages through any SMS feature made available as part of the Services is dependent upon the facilities, networks, and connectivity provided by third party service providers, and you consent to their use.
8. Term, Suspension and Termination
8.1. The term of this EULA shall be for twelve (12) months, the period designated in the Services Agreement, or the period designated by you on the order confirmation receipt (“Initial Term”). The term will automatically renew for like terms at the date of expiration unless you provide written verified notification of intent to terminate this EULA at least fifteen (15) days prior to the date of expiration. This EULA may be terminated by Xactware without cause by giving you at least thirty (30) days written notice of its intent to terminate, except in the event of a breach by you of this EULA, in which case this EULA may be terminated by Xactware immediately upon written notice, with no rights of cure. Following expiry of the Initial Term, this Agreement may be terminated by you without cause by giving us at least thirty (30) days written notice of your intent to terminate.
8.2. We may suspend or terminate all or part of your access (and your rights to access and use) the Services without notice if:
(a) we have reason to suspect that: (i) you have violated the EULA; or (ii) the Xactware Customer has breached the Services Agreement;
(b) the Services Agreement or this EULA expires or is terminated;
(c) we consider it reasonably necessary to avoid loss or damage; or
(d) we are requested to do so by the relevant Xactware Customer, or any regulatory authority.
8.3. In the event of termination, you shall promptly, but in no event more than ten (10) days following such written request, deliver, return or destroy all or any portion of the Services, Price Data, or any other procedures, proprietary information, documentation, files, and/or any other property or data provided by Xactware under this EULA.
9.1. If you suffer a claim by a third party alleging that your use of the Services infringes any intellectual property rights of any person (“IPR Claim”), you:
(a) agree to notify us as soon as reasonably practicable and in any event within fourteen (14) days of becoming aware of the allegation;
(b) shall not make any admission of liability, agreement, or compromise in relation to the matter without our prior written consent;
(c) give us complete authority to conduct all proceedings relating to the matter (and agree to cooperate with us in relation to all such proceedings).
9.2. Provided you have complied with Section 9.1, and provided the IPR Claim relates to your use in accordance with the EULA, we shall conduct the defence or settlement of the IPR Claim and shall indemnify you against any settlement which we agree, or any amount awarded by a court of competent jurisdiction, to the extent arising from the IPR Claim.
9.3. In connection with any claim brought by a third party (including IPR Claims and proceedings by regulatory authorities), to the extent any loss, damage, or expense (including reasonably incurred legal fees) suffered or incurred by us in connection with the claim results from your violation of the EULA, you shall indemnify us against such loss, damage, or expense.
9.4. You indemnify us, and shall hold us harmless, against any loss, damage, or expense (including reasonably incurred legal fees) suffered or incurred arising in connection with your breach of Section 5.2, or any allegation by a third party that your User Generated Content infringes the intellectual property rights, rights of privacy (including data privacy), or other rights of any person.
10. Your Representations and Warranties
10.1. You represent and warrant that the information obtained by you through your use of the Services will be treated as opinion and shall not be relied upon by you without independent verification, except at your own risk.
10.2. Xactware cannot and does not represent or assume the accuracy of, or in any way endorse the content provided by its members or any other entity. You agree that as between you and Xactware, you are in the best position to assess your loss potential for any damage or injury incurred by you which arises out of your use of the Services, and you therefore contract and agree to accept the burden of insuring against such loss, including, but not limited to, losses caused by breach of express or implied warranty, product or service defect, negligence, and the acts or omissions of Xactware. You agree to indemnify and hold Xactware harmless from liability incurred by Xactware and/or its affiliates arising out of your misuse of the Services websites, including www.xactware.com, www.restorationmanager.net, www.inspectionmanger.net, www.punchlistmanger.net, and www.verisk.com, or data obtained therefrom which arise out of any such insurable loss. You accept responsibility for all statements made, acts, or omissions that occur as part of the use of these websites when such use is made possible through the use of your ID and password. You agree to indemnify Xactware from claims arising out of your use or from disclosure of your ID or password.
11. Xactware’s Limited Warranties.
11.1. Nothing in this EULA is or should be interpreted as an attempt to modify, limit or exclude any right or remedy, or any guarantee, term, condition, warranty, undertaking, inducement or representation, implied or imposed by legislation which cannot be modified, limited or excluded.
11.2. You agree that you do not rely on any guarantee, term, condition, warranty, undertaking, inducement or representation made by us or on our behalf which is not expressly stated in this EULA. The Services represents an integration point for content obtained from a vast array of sources. You assume the risk of human, mechanical or other error by Xactware, its members, licensees or other contributors that may cause delays, errors, or omissions. You acknowledge and agree that the Services may provide links to sites and information (including but not limited to pricing information) provided by others. Xactware makes no implied or express representation or warranty with respect to the accuracy of information contained in these linked sites or the pricing information.
11.3. Xactware does not warrant that the operation of the Services or any of its parts will meet your particular application requirements, or that operation of the Services or any of its parts will be uninterrupted or error free. You assume full responsibility for determining suitability of the Services and its parts for your use.
11.4. Xactware does not warrant the accuracy of pricing information in the Price Data. Price Data are intended to be a representation of historical information to be used as a baseline or place to begin creation of an estimate. You are responsible to ensure the estimate includes pricing consistent with components including but not limited to actual materials, equipment, and labour pricing. You acknowledge and understand that Price Data provided as part of the Services are intended to target the most representative price of the various price points collected relevant to the specific line item in question. Having this single representative price per line item, computed from all valid price points researched in the market, means that some market price data are higher, and some market price data are lower than that which are reported. You agree not to prohibit or preclude deviations from the Price Data where contractor requirements, market conditions, demand or any other factor warrants the use of a different line item price in the specific situation.
11.5. Xactware is the owner of all rights and title to the rights licensed to you hereunder and has the right to grant to you the license granted under this EULA without violating any intellectual property rights of any third party.
11.6. Xactware warrants that the Services, if properly installed and operated by you in conformity with Xactware’s instructions, including but not limited to periodic updates, shall materially perform substantially as described in the applicable documentation. Xactware further warrants that the Services shall function properly in conformity with the description and documentation as set forth herein and as updated with future releases and upgrades to the Services. Additional statements, such as those made in advertising or presentations, whether oral or written, do not constitute warranties by Xactware and should not be relied upon as such.
11.7. In the event any product licensed hereunder fails to comply with the warranty as described herein, Xactware shall exert commercially reasonable efforts to correct such product so that the product licensed hereunder performs as warranted.
12. Limitation of Licensee’s Remedies.
12.1. Service(s) may be subject to legislation which implies or imposes a guarantee, term, condition, warranty, undertaking, indecument or representation in relation to this document and which does not allow us to exclude that guarantee, term, condition, warranty, undertaking, inducement or representation (“Non-Excludable Provision”).
12.2. Subject to our obligations under the Non-Excludable Provisions:
(a) in the event you shall assert any claim against Xactware, the total of all such claims shall be limited to the lesser of the amounts paid by you under the terms of this EULA during the twelve (12) months immediately preceding such claim, or one million dollars ($1,000,000);
(b) IN NO EVENT SHALL XACTWARE BE LIABLE FOR LOSS OF PROFIT, GOODWILL, OR ANY OTHER GENERAL, SPECIAL, CONSEQUENTIAL (THAT IS NOT REASONABLE FORESEEABLE), INDIRECT, CIRCUMSTANTIAL, OR INCIDENTAL DAMAGES SUFFERED OR CLAIMED BY YOU OR ANY OTHER PERSON, FIRM, OR ENTITY AS A RESULT OF YOUR USE OF THE LICENSED PRODUCT, DOCUMENTATION, DATA, SERVICES, OR OTHER ITEMS PROVIDED HEREUNDER, IRRESPECTIVE OF WHETHER SUCH LOSS OF PROFIT, GOODWILL, OR OTHER DAMAGES OF ANY NATURE WAS KNOWN OR COULD HAVE BEEN REASONABLY FORESEEN BY XACTWARE.
(c) THE SERVICE(S) IS LICENSED FOR USE “AS IS” AND SAID WARRANTIES AND LIMITATIONS SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE REMEDIES AND ARE IN LIEU OF ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER TYPE OF WARRANTY, WHETHER EXPRESS OR IMPLIED.
13.1. “Confidential Information” means all information disclosed to the relevant party by or on behalf of the other party: (i) in connection with the Services; or (ii) which is marked as or otherwise has been indicated to be confidential, or which derives value to a party from being confidential, or which would be regarded as confidential by a reasonable person. To avoid doubt, any materials you upload, share, or publish to any public areas of the Services shall not be Confidential Information.
13.2. Subject to Section 13.3, each party shall treat all Confidential Information as strictly confidential and except as permitted in the EULA or the Services Agreement shall not disclose Confidential Information to any person.
13.3. A party may disclose Confidential Information if and to the extent:
(a) required by law or order of the courts, by existing contractual obligations, or by any securities exchange or regulatory or governmental body to which such party is subject, wherever situated (whether or not the requirement for information has the force of law); or
(b) disclosed on a necessary basis to the professional advisers and auditors of such party; or
(c) the Confidential Information has come into the public domain other than by a breach of any obligation of confidentiality; or
(d) with the prior written approval of the other party, such approval not to be unreasonably withheld, delayed, or made subject to conditions.
13.4. We may share your information (including Confidential Information) with third party subcontractors in connection with the provision of the Services, and with other persons as permitted in this EULA or the Services Agreement.
13.5. This Section 13 shall not limit our ability to use Anonymous Data (including usage information and market data) or information acquired from you through the use of the Services’ feedback system, which shall be and remain our property.
13.6. The restrictions contained in this Section 13 shall continue to apply after the termination or expiry of this Agreement (however arising) without limit in time.
14. Proprietary Rights
14.1. All right, title, and interest in and to the Services, the Price Data, the technology and materials used to provide them, and any information you obtain through them, shall remain with the rights holders. You may not copy, modify, distribute, create derivative works of, or otherwise use the same except as expressly provided.
14.2. You may not use or register any designation, name, or trade mark appearing through the Services, or any designation, name, or trade mark beginning with ‘Xact’ (together the “Xactware Marks”), and shall not use or attempt to register any designation, name, or mark which is the same as or similar to any of the Xactware Marks.
14.3. You shall not use or apply the Xactware Marks or any confusingly similar marks or terms on or in any of your promotional materials, including but not limited to your website, letterhead, business cards, estimates or any contracts. You also shall not use any of the Xactware Marks as a metatag(s).
14.4. Any challenge or any attempt to register or obtain rights in and to the Services, the Xactware Marks, Price Data, and any other Xactware proprietary material, or any variation or simulation thereof, shall be deemed a material breach of this Agreement, subject to immediate termination of this EULA by Xactware, without rights of cure.
15. Xactware’s Remedies; Injunctive Relief.
15.1. You acknowledge that your breach of the terms or conditions of this EULA may substantially diminish the value of the Services, and any other Xactware owned materials, thereby causing irreparable harm to Xactware. As such, you therefore acknowledge and agree that in the event of your breach of this EULA, Xactware shall be entitled to equitable relief, and you consent to the entry of both a preliminary and permanent injunction enjoining you from further violation of this EULA, solely upon a showing by Xactware that such breach by you has occurred.
15.2. Should Xactware seek equitable relief for a breach of this EULA, including but not limited to injunctive relief, you agree that you shall not request that Xactware post a bond or other security in relation to such proceedings, or request that Xactware prove any actual damages. The provisions of this paragraph relating to you are included in this EULA solely at the request of Xactware in order to afford Xactware more security and not for the purpose of permitting you to escape or avoid any laws, rules or regulations of any applicable jurisdiction or any subdivision thereof applicable to you. Xactware’s entitlement to injunctive relief shall not bar it from recovering monetary damages from you as a result of your breach of this Agreement and/or infringement of any Xactware intellectual property.
16. Governing Law and Jurisdiction
16.1. The EULA and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and shall be construed in accordance with the laws of Queensland, Australia excluding that body of law applicable to conflicts of law.
16.2. The parties submit to the non-exclusive jurisdiction of Queensland, Australia for all purposes relating to and in connection with this Agreement and any such dispute or claim.
17. Payment Schedule
17.1. The license fees charged to you for the Services are due at the beginning of the term. In addition, we shall provide an invoice to you for the license fee each month detailing your charges plus any other payments associated with any other service provider products or services being utilized by you under this EULA.
17.2. Depending on the Services being utilized by you, in addition to all other applicable license fees, fees may include upload fees as specified in the applicable invoice. Upload fees are those related to the completion of estimates for specific programs you may participate in to receive assignments for qualified work. Current rates for contractor upload fees can be reviewed in Xactware’s e-Service Center and may be updated from time to time.
17.3. Unless otherwise specified on the invoice, you shall pay all billed charges by the tenth day of the month in which they are invoiced. All billings shall be payable in New Zealand dollars only.
17.4. You will pay interest to us in the amount of ten percent (10%) per annum on amounts on all invoices not paid when due. You will also provide a written list of any charges you dispute within ten (10) days of billing. Any charges not disputed within said period shall be deemed to have been accepted and payable.
17.5. You hereby acknowledge and agree that your failure to make any payment to us within fifteen (15) days after it is due shall constitute a default. Once your account is in default, we, in addition to all other remedies available at law or equity, shall have the right to disable your access rights to the Services.
17.6. You agree to cooperate with us in the establishment of a program that shall allow you to utilize a method of electronic funds transfer as the means for payment to Xactware of the charges you have incurred.
17.7. Payments are to be made according to the invoice or, if paying online, payment is due immediately by valid credit card.
17.8. The license period commences on the date the Services are ordered.
17.9. You shall, in addition to the other amounts payable under this Agreement, pay all applicable sales and use taxes.
18. Database Support, Product Support, Maintenance, and Training.
18.1. Database Support. For the applicable Service(s), Xactware will provide pricing information, which shall consist of unit costs and unit cost breakdowns consistent with those that may be expected from a contract/repair company in specific available geographic market areas in New Zealand that may be served by you. You may be contacted for feedback on current pricing trends. You authorize Xactware to make such contacts and agree to provide personnel knowledgeable of pricing information in each of the areas for which Price Data shall be assembled. Updates to the Price Data shall be made available to each site over an electronic connection for the applicable Xactware Services.
18.2. Training. Training is available for an additional cost at an agreed location or at Xactware’s Melbourne, VIC Office. Please call 1300 009 228 to schedule training.
18.3. Product Support. During the term of this EULA, Xactware shall provide online support to you, without additional charge, via Xactware’s eService Center, located at www.xactware.com. Xactware may also provide telephone support at the fees detailed on Xactware’s eService Center. Due to the added functionality typically associated with newer versions of the Services, Xactware reserves the right to either provide product support electronically or by telephone: (i) for at least one year after the initial release of the Service(s); or (ii) for prior versions of the Service(s) for at least one year after the release of a replacement or updated version of the Service(s); or (iii) for at least six months after the Service(s) has been discontinued (general Distribution ceased); or (iv) require you to update to the most current supported versions of the Service(s) prior to providing support.
18.4. Storage. Xactware will store completed projects, including assignments, estimates, inspections, and/or jobs, in accordance with Xactware’s data retention policy. Xactware reserves the right to remove all data five (5) years from the date last modified or immediately following termination of this EULA or the Services Agreement. Should you discontinue your subscription with Xactware and then begin a new subscription at a later date, Xactware does not guarantee that the original data will remain and/or be available on Xactware’s system. Additional fees to reconnect historical data to a new subscription may apply.
18.5. Copyright. Australian and New Zealand copyright laws and international treaties protect the Services, Price Data, and Xactware materials described in this Agreement. Unauthorized use of the Services, Price Data, and Xactware materials, or any portion of them, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent under the law.
18.6. Publicity. During the term of this EULA, or the Services Agreement, you agree that Xactware shall have the right, but not the obligation, to list your company as a customer who uses the Services on Xactware’s website and/or in presentations. Xactware will remove your company’s name from any such list within thirty (30) days after any termination of this Agreement or upon your written request.
18.7. Disputes. Xactware shall be entitled to seek legal or equitable relief in any court of Queensland, Australia without first submitting the matter to arbitration with respect to alleged breaches or threatened breaches of any material term or provision of this EULA. The courts of Queensland, Australia have exclusive jurisdiction over any such claim. You hereby irrevocably submit to the personal jurisdiction of any such court in Queensland, Australia for any such claims and waive any claim or defense of inconvenient forum or lack of personal jurisdiction under any applicable law, decision, treaty or otherwise. In making the foregoing submission to jurisdiction, you expressly waive the benefit of any contrary provision of the laws of the jurisdiction of your incorporation or where you are doing business. All disputes, disagreements, controversies, questions or claims brought by you, arising out of or relating to this EULA including, without limitation, with respect to its formation, execution, validity, application, interpretation, performance, breach, termination or enforcement, shall be determined by arbitration.
19. Miscellaneous Provisions
19.1. You consent to receiving all information and notices from us electronically (e.g., via e-mail or through the Services).
19.2. A failure to exercise or delay in exercising a right or remedy provided in the EULA shall not constitute a waiver of that right or remedy, and no waiver by a party shall constitute a waiver of any subsequent breach of the same or any other provision. Each right or remedy of a party under the EULA is without prejudice to any other right or remedy of that party under the EULA or at law.
19.3. If any provision of the EULA is declared by any competent court or body to be illegal, invalid or unenforceable under the law of any jurisdiction, or if any enactment is passed that renders any provision of the EULA illegal, invalid or unenforceable under the law of any jurisdiction this shall not affect or impair the legality, validity or enforceability of the remaining provisions of the EULA, nor the legality, validity or enforceability of such provision under the law of any other jurisdiction.
19.4. You may not use the Services if you are located in a location to which the export or re-export of Services are prohibited or are a person to whom the provision of services is prohibited, under the laws of the United States.
19.5. This EULA may have been presented to you in a language other than English depending on the language you selected when logging into the Services. The EULA is made available in multiple language for the sole purpose of ease of review for non-English speakers. You acknowledge and agree that the English version is the official version and is the binding version between you and Xactware. The English version is accessible and can be reviewed by you or your legal advisor at https://www.xactware.com/en-nz/EULA.
20.1. In this EULA: (i) the singular includes the plural and vice versa, and references to the ‘Services’ includes a reference to any part of them; (ii) references to a person include any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having a separate legal personality); and (iii) ‘including’, ‘in particular’, and similar expressions are by way of illustration and emphasis only and do not operate to limit the generality or extent of any other words or expressions.