XWORKS TECH LTD
TERMS OF SERVICE
These Terms of Service (“Terms”) govern the contractual relationship between:
– Xworks Tech Ltd , a company governed by the laws of England and Wales having its registered office at 3 rd Floor, 86-90 Paul Street, London, EC2A 4NE (hereinafter referred to as “Xworks ”, “we”, “our ”, and “us”) on the one hand,
– each Buyer (as defined below), Seller (as defined below), individual, entity, user or visitor on the other hand (collectively “ you” or “your”) (i) accessing Xworks’ mobile application (“ Mobile App”) and website located at https://xworks-tech.com/ (hereinafter referred to as “Website ”), and/or (ii) using the Services (as defined under Section 2.2 of these Terms) via the Website and/or Mobile App.
You and Xworks shall also hereinafter be referred to together as the “Parties ” and individually as a “Party”.
Please read these Terms carefully before using the Website and/or Mobile App. Your access to the Website and/or Mobile App, your use of the Services (as defined below) is conditioned upon your acceptance of and compliance with these Terms.
1. Acceptance & Modification of the Terms
By accessing the Website and/or Mobile App, and by using the Services (defined below) you agree to be bound by these Terms and accept to comply with all applicable laws and regulations. Should you disagree to be bound by these Terms, in whole or in part, you shall (i) not be permitted/authorized to use the Services (as defined below) on the Mobile App, and (ii) refrain from accessing the Website and Mobile App.
Your continued use of the Website and Mobile App and use of the Services on the Platform (defined below) shall be deemed to constitute your acceptance of these Terms.
Xworks reserves the right, at any time and in its sole discretion, to modify or replace these Terms. You shall be solely responsible for checking these Terms periodically, to stay abreast of any changes to the Terms. Your continued access to the Website, Mobile App and use of the Services on the Platform (as defined below) following the posting of any changes to these Terms shall be subject to the newly modified Terms.
2. Products & Services
2.1 Xworks provides Buyers and Sellers with a Platform (defined below) enabling them to trade a variety of recycled and recovered waste materials, waste to energy, vehicles, machinery, services and equipment (“ Product(s)”). The Products are sold by Sellers (as defined below) on Xworks’ Platform (defined below).
2.2 Xworks also:
(i) provides all Product owners (“Seller(s)”) with a marketplace platform integrated into the Mobile App (hereinafter referred to as the “ Platform”) in order for each Seller to sell Seller’s Products,
(ii) provides potential/prospective Product buyers with the Platform in order for them to view and purchase the Product(s), as well as network and communicate with Sellers (“Buyer(s) ”),
(iii) provides you with the Website so as to learn more about our service offerings, and have access to relevant articles and blogs;
(iv) provides you with networking services on the Platform; where Buyers, Sellers and users can connect and participate in one-on-one or group chats; and
(v) acts as a third party intermediary and as such facilitates the sale and purchase of Products between Seller and Buyer on the Platform,
(collectively the “Service(s)”).
2.3 You acknowledge that Xworks may change, suspend or discontinue any or all of the Services, at its sole discretion at any time, without notice and for any or no reason.
2.4 Support Services . Xworks shall provide you with support services via email firstname.lastname@example.org please provide your email and telephone in order to address any queries and concerns you may have pertaining to the Services as well as to any payment/account issue. We shall endeavour to resolve any queries and concerns you may have within seven (7) working days from the date you first logged the issue with us.
3. Registration, Password and Security
3.1 To be able to use the Services on the Platform, you must register on the Mobile App by providing all required information which shall include but not be limited to your full name, email address, company name, company address, company registration number, company vat number, proof of identity (for example: national identity, driving license or passport) and contact information. Once Xworks has verified your information, an account shall thereafter be opened by Xworks for you on the Mobile App (“ User Account”). You acknowledge that Xworks may use Creditsafe and/or Shufti Pro to verify the validity of the information you have provided to us when registering for your User Account.
3.2 You agree to:
(i) provide true, accurate, current and complete information about yourself as prompted by Xworks’ registration process on the Mobile App; and
(ii) maintain and promptly update the information provided during registration to keep it true, accurate, current, and complete at all times.
3.3 If you provide any information to Xworks that is untrue, inaccurate, outdated, or incomplete, or if we have reasonable grounds to suspect that such information is untrue, inaccurate, outdated, or incomplete, we may close your User Account on the Mobile App and/or deny you the ability to access and use the Services.
3.4 You may indicate, during registration process, to Xworks your choice of User Account’s username and password to be used as login credentials to access your User Account (“ Login Credentials”). You shall be solely responsible for (i) maintaining the confidentiality of your Login Credentials; and (ii) any and all activities which occur under your User Account. You agree to notify Xworks immediately of any unauthorized use of your User Account or any other breach of security. Xworks shall not be liable for any loss that you may incur as a result of any third party using your Login Credentials and/or accessing/using your User Account either with or without your knowledge. However, you may be held liable for losses incurred by Xworks due to any third party using your Login Credentials and/or User Account. You acknowledge and agree that you may not use the User Account of another Buyer or Seller registered on the Mobile App without the express permission of such User Account holder.
4. Purchasing Products on the Platform
4.1 To purchase a Product on Xworks’ Platform a Buyer may either (i) make an offer to purchase the Product for a price acceptable to the Seller, or (ii) purchase a specific Product listed on the Platform at Seller’s selling/asking price.
4.2 The Buyer acknowledges and agrees that:
(i) Xworks facilitates the networking opportunities between Buyer and Seller only and strictly as a third party intermediary. As such, Buyer acknowledges and agrees that any corresponding Product purchase and sale agreement shall be solely and exclusively entered into by and between Buyer and Seller, and shall take place outside the Platform and Mobile App;
(ii) Seller shall be solely and exclusively responsible for setting the price for each of Seller’s Products listed on the Platform;
(iii) all Product purchases made by Buyer outside the Platform are strictly between Buyer and Seller;
(iv) Buyer shall be solely responsible for conducting Buyer’s own due diligence prior to purchasing the Product(s) and completing the sale/purchase transaction with the Seller;
(v) all updates, information, materials and technical support related to the Product(s) shall be provided to Buyer by Seller only; and
(vi) all payments or portions thereof made by Buyer, to purchase any Product shall be strictly between the Buyer and Seller.
5. Selling Products on the Platform
5.1 Seller may freely list Seller’s Product(s) on the Platform provided that Seller’s Product(s) meet(s) Xworks’ Product requirements.
5.2 Once Seller has listed Seller’s Product(s) on the Platform, Seller shall indicate the minimum price Seller would accept for the Product, relevant information/description pertaining to the Product and upload up-to-date and actual photos of the Product listed on the Platform. As such, Seller agrees to not upload generic or stock photographs of the Product(s) Seller lists on the Platform.
5.3 The Seller acknowledges and agrees that:
(i) Seller shall be solely and exclusively responsible for setting/determining the price for any and all Seller’s Products listed for sale on the Platform;
(ii) Seller shall be solely responsible for monitoring the availability of any Seller’s Product(s) listed on the Platform to ensure that all Seller’s Products listed on the Platform truly exist, are valid and are owned by Seller;
(iii) Seller may not and shall not list any Seller’s Product more than once on the Platform;
(iv) Seller shall be solely responsible for any and all Products Seller lists on the Platform,
(v) Seller shall be solely responsible for complying with (a) applicable laws and regulations in relation to any Products which Seller has listed and classified as waste and/or recovered materials that are green-listed (recovered material for recycling), requiring TFS (waste to energy related) or landfill hazardous or non-hazardous, (b) the Basel convention (where applicable), and (c) any other relevant local laws, agencies and governmental authorities; and
(vi) any sale of Seller’s Product shall take place outside the Platform and the purchase sale/transaction shall be strictly between Buyer and Seller.
6. Subscription Plans, Fees and Taxes
6.1 Subscription Plans . Xworks currently offers you three (3) subscription plans, namely Elite Club, Premium and Basic, on the Website and Mobile App that enables you to use the Services (“Subscription Plan(s) ”). The Subscription Plans includes restrictions and requirements that outline the features and privileges of the Subscription Plan that you will have access to as well as the applicable fee. The features of the Subscription Plan are further detailed on a lead page and Mobile App.
6.2 Your use of the Services shall be billed on a recurring and periodic basis (“ Billing Cycle”). Billing Cycles will be set on a yearly basis.
6.3 At the end of each Billing Cycle, your Subscription Plan will automatically renew under the exact same conditions unless (i) you cancel the Subscription Plan from your User Account’s settings, or (ii) Xworks cancels the Subscription Plan, in accordance with these Terms.
6.4 Free Trail Period . Xworks offers you with a seven (7) day free trial period to access and use the Services. Upon the expiry of the seven (7) day free trial period, you acknowledge that Xworks shall automatically collect the Subscription Plan fee from your chosen payment method, unless such Subscription Plan is cancelled by you (in accordance with these Terms) prior to the expiry of the seven (7) day free trial period.
6.5 Fees . A valid payment method, including credit card or debit card, is required to process the payment for your selected paid Subscription Plan. Xworks will process your payment via Xworks’ third-party payment processor, namely Stripe, upon the expiry of the seven (7) day free trial period, unless you cancel your selected Subscription Plan. When you subscribe to a paid Subscription Plan, you shall provide Xworks with your full name, business name, address, contact information, and credit card/bank details. By submitting such payment information, you automatically authorize Xworks and our third-party payment processor to charge all Subscription Plan fees to such credit or debit card on a recurring annual basis, until cancellation of the Subscription Plan or until termination/suspension of these Terms as further provided herein under Section 18 (Suspension, Termination and Cancellation of Subscription Plan), for (i) the applicable Subscription Plan fee, (ii) any other charges as agreed between the Parties, and (iii) any and all applicable taxes.
6.6 You shall be responsible for providing us with true, current, complete and accurate billing and contact information and for notifying us of any changes to such information.
6.7 You warrant that you are authorized to use your respective chosen credit or debit card as a payment method.
6.8 You acknowledge and agree that the fees for your selected paid Subscription Plan shall be (i) quoted and payable in pounds sterling (GBP); (ii) payable on time; and (iii) strictly non-refundable.
6.9 If Xworks does not receive payment from your verified payment method on the due date, you shall immediately pay all amounts due to Xworks upon request. Should Xworks be unable to collect all such outstanding amounts, Xworks may in its sole discretion close and cancel your User Account and access to the Services without any notice to you.
6.10 Xworks may in its sole discretion and at any time, modify the Subscription Plan fees. Any Subscription Plan fee change will become effective at the end of the then-current Billing Cycle. Xworks shall provide you with reasonable prior notice of at least thirty (30) days prior to any change in Subscription Plan fees to give you the opportunity to terminate your Subscription Plan before such change becomes effective. Your continued use of the Services after the Subscription Plan fee change has come into effect shall constitute your agreement to pay the modified Subscription Plan fee amount.
6.11 You agree to notify Xworks of any billing queries and errors within thirty (30) days after receipt of your respective invoice. Should you not notify Xworks of any billing queries and/or errors, this absence of notification on your part shall be deemed to constitute your waiver of your right to dispute such queries and errors at a later date.
6.12 Xworks does not guarantee that the Subscription Plan offered on the Mobile App will be offered indefinitely and reserves the right to change the Subscription Plan fees and to alter the features and options associated with any particular Subscription Plan.
6.13 You acknowledge and agree that Xworks may, from time to time, add additional features or functionalities to the Services, as such your access to and use of any additional features and functionalities to the Services may require the payment of additional fees by you.
6.14 Taxes .
6.14.1 Under these Terms, the term “ Taxes” shall mean taxes, charges, duties, fees, levies, and other charges of a governmental authority, including income, withholding, social security, social contribution, transfer, sales, use, value-added and all other taxes of any kind for which a Party may have any liability imposed by any governmental authority, whether disputed or not, any related charges, interest or penalties imposed by any governmental authority, and any liability for any other person as a transferee or successor by Law, contract or otherwise.
6.14.2 All fees for the Products and/or Services, as illustrated on Xworks’ Website, Mobile App and Platform are exclusive of any and all Taxes.
6.14.3 You shall be responsible for the payment of all Taxes associated with the purchase or sale of the Products via the Platform and as part of your use of the Services. You shall not deduct from the payments due to Xworks, any Taxes, except as is required by applicable law.
7. Acceptable Use of the Website and Mobile App (including the Platform)
7.1 You may not use the Website and Mobile App (including the Platform) to transmit, distribute, store or destroy any material or information (i) in violation of any applicable law or regulation; (ii) in a manner that infringes Xworks’ Intellectual Property Rights (defined below) or any third party’s intellectual property rights; (iii) in a manner that violates the privacy or other personal rights of third parties; and/or (iv) that is defamatory, obscene, threatening, discriminatory, abusive or hateful.
7.2 When accessing the Website and Mobile App (including the Platform), you shall be prohibited from:
(i) using any robot, spider, other automatic device or manual process to monitor or copy any part of the Website and Mobile App (including the Platform);
(ii) using any device, software or the like to interfere or attempt to interfere with the proper functioning of the Website and Mobile App (including the Platform);
(iii) taking any action that imposes an unreasonable or disproportionately large data load on the Website and Mobile App (including the Platform) infrastructure;
(iv) copying, reproducing, altering, modifying, creating derivative works, or publicly displaying any content from the Website and Mobile App (including the Platform) without Xworks’ prior written consent;
(v) reverse-assembling, reverse-engineering or otherwise attempting to discover any source code relating to the Website and/or Mobile App (including the Platform) or any tool therein, except to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
(vi) attempting to access any area of the Website and/or Mobile App (including the Platform) to which access is not authorized;
(vii) conducting any systematic or automated data collection activities on or in relation to the Website and/or Mobile App (including the Platform), including but not limited to data scraping, mining, extraction, harvesting, framing and article spinning, without Xworks’ prior written consent;
(viii) using the Website and/or Mobile App (including the Platform) to transmit or send unsolicited commercial and marketing communications for any purpose, without Xworks’ prior written consent;
(ix) using manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any page of the Website and/or Mobile App (including the Platform) ;
(x) probing, scanning, or testing the vulnerability of any of Xworks’ system or network or breach or circumvent any of Xworks’ security or authentication measures;
(xi) accessing, searching or attempting to access or search the Website, Mobile App (including the Platform) and/or Services by any means other than through Xworks’ currently available, published interfaces that are provided by Xworks, unless you have been specifically allowed to do so in a separate agreement with Xworks;
(xii) uploading, posting, emailing, transmitting, or otherwise offering any unsolicited or unauthorized advertising, promotional flyers, “junk mail,” “spam,” or any other form of solicitation, except in any such areas that may have been designated for such purpose;
(xiii) disrupting or interfering with the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Website;
(xiv) forging captions, headings or titles; or uploading, posting, emailing, transmitting, or otherwise offering any content that you personally have no right to pursuant to any law nor having any contractual or fiduciary relationship;
(xv) uploading, posting, emailing, transmitting, or otherwise offering any source that may contain a software virus or other computer code, any files and/or programs which have been designed to interfere, destroy and/or limit the operation of any computer software, hardware, or telecommunication equipment;
(xvi) disrupting the normal flow of communication, or otherwise acting in any manner that would negatively affect other users’ ability to participate in any real-time interactions with viewers on the Website and/or Mobile App (including the Platform);
(xvii) intentionally or unintentionally violating any local, state, federal, national or international law, in addition to any rules of any nation or other securities exchange, and any regulations having the force of law;
(xviii) impersonating any other person or entity, sell your profile, provide false or misleading identification, payment or address information, or invade the privacy, or violate the personal or proprietary right, of any person or entity; and/or,
(xix) collecting or storing of any personal data relating to any other user in connection with the prohibited conduct and/or activities which have been set forth in the aforementioned paragraphs.
8. User Content
8.1 Xworks allows you to make available certain information, text, graphics, videos, images, personal picture, personal statement(s), or any other material (“ User Content”) on the Platform. You shall be responsible for the User Content that you post to the Platform, including for its legality, reliability, and appropriateness. By posting User Content on the Platform, you grant Xworks the right and (sub-)license to use, modify, perform, display, reproduce, and distribute such User Content on and through the Mobile App and Platform. You shall retain any and all of your rights to any User Content you submit, post or display on or through the Mobile App and Platform, and you shall be solely responsible for protecting those rights.
8.2 You represent and warrant that:
(i) the User Content belongs to you (i.e. you own it) or that you have the right to use it (e.g. as licensee) and grant Xworks the rights and (sub-)license as granted by you under Section 10.1 of these Terms, and
(ii) the posting of User Content on or through the Mobile App (including the Platform) does not violate (a) Xworks’ Intellectual Property Rights (defined below) or any third party’s intellectual property rights, (b) privacy rights, publicity rights, copyrights, contract rights or any other rights of Xworks or of any third party.
8.3 Xworks reserves the right to block or remove User Content that Xworks determines to be: (i) abusive, defamatory, or obscene; (ii) fraudulent, deceptive, or misleading; (iii) in violation of Xworks’ Intellectual Property Rights (defined below) or of any third party’s intellectual property rights or; (iv) offensive or otherwise unacceptable to Xworks in its sole and exclusive discretion. Xworks acknowledges that, by providing you with the ability to view and distribute user-generated content on the Mobile App and Platform, Xworks is merely acting as a passive conduit for such distribution and is not assuming any obligation or liability relating to any contents or activities on the Mobile App and Platform.
8.4 You acknowledge and agree that you shall be solely and exclusively responsible for maintaining, updating, safeguarding and protecting all of your User Content on the Mobile App and Platform. As such, Xworks will not be liable for any loss, damage or corruption of your User Content, or for any costs or expenses associated with backing up or restoring any of your User Content. You further acknowledge and agree that you remain responsible for the transmission of your User Content, data or files to Xworks, and as such it is your responsibility to use a secure encrypted connection to communicate with Xworks.
8.5 Feedback . By sending Xworks any ideas, suggestions, comments, documents or proposals (“Feedback”), you (i) warrant that your Feedback does not contain any confidential or proprietary information belonging to any third-party(ies), (ii) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) agree that we may have feedback which is similar to your Feedback, already under consideration or in development, and (iv) hereby grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback, and you irrevocably waive, and cause to be waived, against Xworks and its vendors and users any claims and assertions of any intellectual property rights and/or moral rights contained in such Feedback.
8.6 During the Subscription Plan term, you hereby grant Xworks a non-exclusive license to use your name, likeness, and/or image or any other identifying aspects of your identity in which you hold exclusive publicity rights (“ Your Personality Attributes”), in order to promote Xworks’ Services on the Website and/or Mobile App (including the Platform). Xworks shall use Your Personality Attributes solely and only during your selected Subscription Plan term. Xworks shall not sell, assign, sub-license or transfer Your Personality Attributes to any third party, without your consent.
9. Buyer’s and Seller’s Representations and Warranties
Each Buyer or Seller hereby represents and warrants that such Buyer’s/Seller’s access to the Mobile App (including Platform), and use of the Services will:
(i) be in accordance with these Terms;
(ii) comply with all applicable laws and regulations (including, without limitation, all applicable laws regarding online conduct and acceptable content, privacy, data protection, and the transmission of technical data exported from the United Kingdom);
(iii) not be for any unlawful purposes;
(iv) not entail, imply or give rise to the publication of any illegal content;
(v) not further any illegal activities;
(vi) not infringe upon or misappropriate any of Xworks’ Intellectual Property Rights (defined below) or any third party’s intellectual property rights; and
(vii) not be used to create, distribute, facilitate or operate in conjunction with malware, spyware, adware, or other malicious programs or code.
10. Disclaimer of Warranties
10.1 Unless otherwise provided under these Terms, the Services shall be provided by Xworks to you “ as is,” and “as available” with all faults, defects, bugs, and errors.
10.2 XWORKS HEREBY (I) DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO YOUR USE OF THE SERVICES AND/OR TO YOUR SALE/PURCHASE (OUTSIDE THE PLATFORM) AND USE OF ANY PRODUCTS; AND (II) MAKES NO WARRANTIES OR GUARANTEES OF ANY KIND WITH RESPECT TO THE USER CONTENT, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT OR INTEGRATION.
10.3 XWORKS AND/OR ITS RESPECTIVE AFFILIATES (IF ANY), LICENSORS AND VENDORS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, ACCURACY, RELIABILITY OR COMPLETENESS OF (i) THE INFORMATION CONTAINED ON THE WEBSITE, MOBILE APP, PLATFORM AND SERVICES, AND (ii) RELATED GRAPHICS PUBLISHED ON THE WEBSITE, MOBILE APP, PLATFORM AND SERVICES FOR ANY PURPOSE. THE WEBSITE, MOBILE APP, PLATFORM, SERVICES AND/OR RELATED GRAPHICS ARE PROVIDED TO YOU BY XWORKS “AS IS” WITHOUT WARRANTY OF ANY KIND. XWORKS AND/OR ITS RESPECTIVE AFFILIATES (IF ANY) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
10.4 YOU ACKNOWLEDGE THAT THE INFORMATION AND RELATED GRAPHICS PUBLISHED ON THE WEBSITE, MOBILE APP, PLATFORM AND/OR SERVICES COULD INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS AND CHANGES, WHICH ERRORS AND CHANGES MAY BE PERIODICALLY MADE TO THE WEBSITE, MOBILE APP, PLATFORM AND/OR SERVICES HEREIN.
10.5 NEITHER XWORKS NOR ITS AFFILIATES (IF ANY), LICENSORS, AND VENDORS MAKE ANY REPRESENTATION, WARRANTY OR GUARANTEE THAT THE INFORMATION THAT MAY BE AVAILABLE ON THE WEBSITE, MOBILE APP, PLATFORM AND SERVICES IS FREE OF INFECTION FROM ANY VIRUSES OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE ELEMENTS OR THAT ARE INTENDED TO DAMAGE, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE YOUR COMPUTER SYSTEM, DATA OR PERSONAL INFORMATION.
10.6 XWORKS PROVIDES YOU WITH THE SERVICES ON THE MOBILE APP IN GOOD FAITH AND MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (II) THAT YOUR ACCESS TO OR USE OF THE WEBSITE, MOBILE APP, PLATFORM AND SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, (III) THAT ANY DEFECTS IN THE WEBSITE, MOBILE APP, PLATFORM AND/OR SERVICES WILL BE CORRECTED, OR (IV) THAT THE WEBSITE, MOBILE APP, PLATFORM AND/OR SERVICES OR ANY SERVER THROUGH WHICH YOU ACCESS THE SERVICES ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.
10.7 ANY MATERIAL/INFORMATION DOWNLOADED, CAPTURED, SUBMITTED, CREATED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE, MOBILE APP, PLATFORM AND SERVICES ARE ACCESSED AT YOUR OWN RISK, AND YOU WILL BE SOLELY LIABLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD, CAPTURING, SUBMISSION OR CREATION BY YOU OF ANY SUCH MATERIAL/INFORMATION.
10.8 THE INFORMATION FOUND ON THE WEBSITE, MOBILE APP, PLATFORM AND WITHIN THE SERVICES IS ONLY FOR INFORMATION PURPOSES ONLY. XWORKS WILL NOT BE HELD RESPONSIBLE FOR ANY DAMAGES THAT MAY BE INCURRED BY YOU AS A RESULT OF SUCH INFORMATION. ALL INFORMATION AND CONTENT ON THE WEBSITE, MOBILE APP, PLATFORM AND SERVICES IS COPYRIGHTED, AND MAY NOT BE REPUBLISHED, COPIED, SOLD OR POSTED ANYWHERE ONLINE OR IN PRINT. DOING SO WILL BE AGAINST THE LAW AND VIOLATORS WILL BE PROSECUTED ACCORDINGLY.
11. Intellectual Property
11.1 All content, trademarks, data, information or information contained in any materials, or documents used in relation to the Website, Mobile App (including the Platform) and Services, including but not limited to any and all copyrighted works, databases, text, graphics, icons, designs, logos, graphics, hyperlinks, domain names, codes, information and agreements (“ Materials”), are the sole and exclusive property of or are licensed to Xworks. You may not reproduce, distribute or copy the Materials by any means, whether electronically or not, without Xworks’ prior written permission.
11.2 Any and all intellectual property rights in the Materials, Website, Mobile App (including the Platform) and Services, including all patents, rights in inventions, rights in designs, trademarks, trade and business names and all associated goodwill, rights to sue for passing off or for unlawful competition, copyright, moral rights and related rights, rights in databases, topography rights, domain names, rights in information (including know how and trade secrets) and all other similar or equivalent rights existing in the Materials, and Services, now or in the future in any part of the world, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights for their full term (“ Xworks’ Intellectual Property Right(s) ”), vests solely and exclusively in Xworks, its affiliates (if any), its licensors, the respective Seller or vendors, as the case may be. All rights not expressly granted by Xworks to you are reserved by Xworks. Save as expressly set out herein, you shall not acquire any right, title or interest in Xworks’ Intellectual Property Rights.
11.3 The Seller shall be the sole and exclusive owner of all Seller’s intellectual property rights in the Products which the Seller lists on the Platform, User Content and Your Personality Attributes (“ Seller’s Intellectual Property Rights”). Xworks may not use any of Seller’s Intellectual Property Rights for any other purpose, other than mentioned under these Terms and not without the Seller’s prior written consent. The Seller hereby grants Xworks the non-exclusive right to use Seller’s Intellectual Property Rights, free of charge, in connection with providing Seller and Buyer with the opportunity to sell Seller’s Products to prospective/potential Buyers on the Platform, to the extent necessary for Xworks to (i) exercise Xworks’ rights under these Terms, and (ii) perform Xworks’ obligations under these Terms.
12.1 You agree to indemnify and hold harmless Xworks from and against any liability, demand, damages, cost, claim or expense arising from a third party claim arising from: (i) your violation of these Terms; (ii) your use or misuse of the Service(s) and/or Product(s); (iii) your infringement of Xworks’ Intellectual Property Rights; (iv) from Seller’s violation/breach of any existing agreement (e.g. sale/purchase agreement) between Seller and Buyer or any such third party in regard to any Product(s) sold by Seller to Buyer outside the Platform (in breach of such existing agreement); and/or (v) any activities conducted by you through/on any third party website. Xworks shall indemnify and hold you harmless from and against any liability or expense arising from a third party claim based on any Negligence of Xworks. “ Negligence” shall mean gross negligence or intentional misconduct.
12.2 In the event of a claim subject to indemnification hereunder, the indemnified Party shall: (i) promptly notify the indemnifying Party of the claim, (ii) provide the indemnifying Party with reasonable cooperation and assistance, at the indemnifying Party’s expense, to defend such claim; and (iii) allow the indemnifying Party the opportunity to assume the control of the defense and settlement of such claim. The indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim. The indemnifying Party must obtain the prior written approval from a duly authorized signatory of the indemnified Party prior to entering into any settlement affecting the indemnified Party’s rights.
13. Limitation of Liability
13.1 XWORKS, ITS AFFILIATES (IF ANY), ITS LICENSORS, VENDORS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS SHALL IN NO EVENT BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, REVENUE OR BUSINESS, ARISING IN WHOLE OR IN PART FROM YOUR ACCESS TO THE WEBSITE AND MOBILE APP (INCLUDING THE PLATFORM), FROM YOUR USE OF THE SERVICES ON THE PLATFORM, EVEN IF XWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.2 WHILE XWORKS TAKES PRECAUTIONS AGAINST SECURITY BREACHES, NO WEBSITE, MOBILE APP OR INTERNET TRANSMISSION IS COMPLETELY SECURE, AND AS SUCH, XWORKS AND ITS AFFILIATES (IF ANY), LICENSORS, AND VENDORS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY RESULT FROM UNAUTHORIZED ACCESS, HACKING, DATA LOSS, OR OTHER BREACHES THAT MAY OCCUR ON THE WEBSITE, MOBILE APP, THROUGH YOUR USE OF THE SERVICES ON THE PLATFORM.
13.3 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, XWORKS’ (INCLUDING ITS AFFILIATES (IF ANY), ITS LICENSORS, VENDORS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS) LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION, SHALL AT ALL TIMES BE LIMITED TO THE TOTAL AMOUNT OF PAID BY YOU FOR YOUR CHOSEN SUBSCRIPTION PLAN IN THE PREVIOUS TWELVE MONTHS PRECEDING THE DATE OF THE CLAIM.
15. Xworks’ Monitoring of the Website, Mobile App (including the Platform) and Services
15.1 You acknowledge and agree that Xworks may:
(ii) report your actions to law enforcement authorities and/or take legal action against any user who/which violates these Terms;
(iii) refuse, deny, disable (to the extent technologically feasible) and restrict your access to any of your User Content which may be (a) in breach of these Terms, (b) in breach of any applicable laws, or (c) excessive in size or burdensome, without prior notice to you; or
(iv) manage the Website and Mobile App in a manner which (a) protects our rights, (b) protects third parties’ rights and property, or (c) facilitates the proper functioning of the Website, Mobile App (including Platform) and Services.
15.2 You acknowledge that there are potential risks, which include but are not limited to the risk of physical harm and the risk associated with communicating with any third party, including persons who may be acting under false pretences. As such, Xworks recommends that you carefully select the information you post on the Mobile App and Platform, and that you share with viewers. As such, you shall assume all risks associated with interacting with other users or third parties with whom you come in to contact with through the Mobile App and Platform.
16. Third Party Links
The Website, Mobile App (including Platform) and/or Services may contain links and/or ads to third-party websites or resources, as well as links to the respective Seller’s website. You acknowledge and agree that Xworks shall not be responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products or services on or available from such websites or resources. Links and ads to such websites or resources do not imply any endorsement by Xworks of such websites or resources or the content, products, or services available from such websites or resources.
Your communications, interactions or business transactions/dealings with any third party found on or through the Website, Mobile App (including the Platform) and/or the Services, including any such third party’s terms, conditions, warranties or representations associated with such communications, interactions or business transactions/dealings, shall be solely between you and such third party. You acknowledge and agree that Xworks shall not be liable for any loss or damage incurred by you as the result of any communication, interaction, business transaction or other dealings you may have with any third party found through (i) the Website, Mobile App (including the Platform) and/or (ii) your use of the Services.
17. Age Restriction
The Products and Services are not intended to persons younger than eighteen (18) years of age. By accessing and using this Website and Mobile App, and by agreeing to these Terms, you warrant and represent that you are at least eighteen (18) years of age.
18. Suspension, Termination and Cancellation of Subscription Plan
18.1 Xworks may, in its sole discretion, suspend or temporarily disable access to all or part of the Website, Mobile App (and Platform), User Account, or Services if (i) Xworks suspects you of partaking in any illegal activity; (ii) Xworks reasonably believes that you have violated these Terms; or (iii) applicable law enforcement or other government agencies have requested Xworks to suspend or temporarily disable your access to the Website,Mobile App (and Platform), and/or Services.
18.2 If Xworks breaches any of its obligations under these Terms, you may terminate these Terms and close your User Account. Upon, your termination of these Terms and closing of your User Account, Xworks may (i) block your access to all of the Mobile App and Platform, (ii) block your use of the Services, (iii) delete all of your information associated with your User Account, including but not limited to your full name, address, contact information, email address and password, and (iv) delete all of your data in your User Account.
18.3 Cancellation of Subscription Plan . Except as otherwise specified under these Terms, you may cancel your chosen Subscription Plan at any time prior to the end of the relevant Subscription Plan term under the account settings tab in your User Account. As such, you shall continue to have access to the features provided under your chosen Subscription Plan, until the expiry date of the Subscription Plan.
19. Compliance with Laws
Each Party shall comply with all applicable laws relating to the Services, keep records evidencing its compliance, on the other Party’s reasonable request, provide these records of compliance to the other Party, and notify the other Party if it becomes aware of any non-compliance in connection with these Terms.
20. Dispute Resolution
20.1 If any dispute or difference shall arise between the Parties as to the meaning or application of these Terms, the rights or liabilities of the Parties or otherwise in relation to these Terms, then (without prejudice to any other express or implied rights or powers) the dispute or difference (“ Dispute“) shall be determined as follows:
(i) A Party must not commence arbitration or court proceedings (except proceedings seeking interlocutory relief) relating to a Dispute arising under these Terms unless it has complied with this Section 20.
(ii) A Party claiming that a Dispute has arisen under these Terms must give the other Party written notice of the particulars of the Dispute.
(iii) In the event of a Dispute, difference or claim between the Parties hereto, arising out of the use of the Website, Mobile App (and Platform) or Services; or in any way relating to these Terms, or any term, condition or provision herein mentioned or the construction or interpretation thereof or otherwise in relation hereto, the Parties shall first endeavour to settle such difference, dispute, claim or question by mutual discussion, failing which the same shall be referred to the the London Court of International Arbitration, or any statutory modification or re-enactment thereof for the time being in force.
20.2 You acknowledge and agree that if any dispute or difference shall arise between you or another user or third-party, you shall be solely responsible for your conduct. You agree that Xworks shall not be liable for any dispute or difference that arises between you and any other user or third-party.
21. General Provisions
21.1 Non-Exclusivity. The Parties’ respective obligations under these Terms are non-exclusive and nothing herein is intended to restrict you from accessing, purchasing, selling or using any other third party’s products or services, even if such products or services are similar to the (i) Products listed by Sellers on the Platform, and (ii) Services provided by Xworks on the Website and Mobile App (including the Platform).
Nothing herein is intended to limit Xworks’ right to provide the Services to other registered users and to facilitate the buying and selling of products between other registered users as a third party intermediary.
21.2 Severability. If any of the provisions or portions of these Terms are held to be invalid under any applicable statute or rule of law, they are to that extent deemed to be omitted from these Terms without in any way invalidating or impairing the other provisions of these Terms.
21.3 No Waiver. Save for Section 6.10, A Party’s failure or delay in enforcing any provision of these Terms will not operate as a waiver of the right to enforce that provision or any other provision of these Terms at any time. A waiver of any provision of these Terms shall be in writing, specify the provision to be waived and signed/executed by the Party agreeing to the waiver.
21.4 Notices. Except as otherwise provided under these Terms, any notice required or permitted to be given will be effective only if it is in writing and sent by certified mail, registered mail, courier or to 3 rd Floor, 86-90 Paul Street, London, EC2A 4NE, UK.
21.5 Entire Agreement. These Terms represents the entire agreement between the Parties relating to the subject matter hereof. These Terms alone fully and completely expresses the agreement of the Parties relating to the subject matter hereof. There are no other courses of dealing, understanding, agreements, representations or warranties, written or oral, except as set forth herein.
21.6 Governing Law & Jurisdiction. These Terms, 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), shall be governed by, and construed in accordance with the laws of the England and Wales. You agree that in respect of any Dispute arising upon, over or in respect of any of the terms and conditions of these Terms, the London Court of International Arbitration and the English Court system shall have jurisdiction to try and adjudicate such Dispute.
22. Contact Information
Should you have any questions concerning these Terms and/or any issues or concerns about the Website, Mobile App, Platform and/or Services you may contact Xworks at email@example.com.
Effective Date: 23 July 2020