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Terms and Conditions

 

 

 

XUVIATE ONLINE USER AGREEMENT

  1. Xuviate (Pty) Limited is the owner of the Xuviate proprietary software platform which provides specialised content and related services to you when you register as a user on this website (‘’the Service”). The Service is intended to guide and support business and IT leaders of small and medium organisations as they are transforming from technology management to business technology management.
  1. THE LEGAL AGREEMENT (“AGREEMENT”) SET OUT BELOW GOVERNS YOUR USE OF THE SERVICE. IT IS IMPORTANT THAT YOU READ AND UNDERSTAND THE TERMS BELOW. YOU CAN ACCEPT THESE TERMS BY CLICKING “AGREE,” OR IF YOU ACCESS OR USE THE SERVICE.

Definitions and interpretation

  1. The following definitions apply to this agreement:
    1. Agreement: means these terms and conditions, read together with Xuviate’s Privacy Policy, found at (insert URL);
    2. Business Day: any day which is not a Saturday, Sunday or public holiday in South Africa;
    3. Confidential Information: information that is proprietary or confidential and is either clearly labelled as such, or identified by a party as confidential;
    4. Content: copyright-protected original works which are made available to Users as part of the Service;
    5. Normal Business Hours:00 am to 5.00 pm local South African time, each Business Day;
    6. User: means a user of the Service who has registered an account on this website either as a Company Admin or as a normal registered user;
    7. Service: Xuviate’s proprietary assessment and learning solution made available to Users using the Software and Content via this website;
    8. Software: Xuviate’s proprietary software application which is used to provide the Service and which is hosted on international data centres;
    9. Website: the website accessible at xuviate.com;
  1. Clause headings shall not affect the interpretation of this agreement.
  1. Reference to a ‘’person’’ includes an individual, or a corporate or unincorporated body, and includes that person’s legal representatives, successors-in-title, or permitted assigns.
  1. Words in the singular shall include the plural and vice versa.
  1. A reference to one gender shall include a reference to the other genders.
  1. A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation made under it which is for the time being in force.
  1. A reference to ‘’writing’’ or ‘’written’’ includes faxes, e-mail, or any other form of electronic communication.

Availability of the Service

  1. While Xuviate will use commercially reasonable efforts to ensure the Service is available 24 hours a day, Xuviate shall not be liable for any loss, damage or inconvenience suffered if the Service is unavailable at any time for any period and for any reason.

Registering an account

  1. You may establish an account as a Company Admin or a registered User and, subject to the terms of this agreement, Xuviate shall make the Service available to you. You may not create an account for anyone other than yourself without that person’s permission.
  1. You agree to provide accurate and complete information when you register with, and as you use, the Service, and you agree to update your account information to keep it accurate and complete.
  1. You agree that Xuviate may store and use your account information to maintain your account.
  1. You will be responsible for keeping your account secure, and for all activities that take place on your account.
  1. Xuviate will not be liable for any loss suffered as a result of any unauthorised use of your account, or account information by any other person.
  1. You agree to immediately notify Xuviate of any security breach of your account or any loss of your account information.
  1. Xuviate reserves the right to suspend your account and/or discontinue providing the Service to you if it suspects that there has been or will be any unauthorised activity taking place on your account, and Xuviate will not be liable to you or any other person for any loss arising from the suspension of your account.
  1. Non-registered users may be granted limited access to certain parts of the Service without registering an account. However, such non-registered users will still be bound by the terms of this agreement.

Subscription fees and payment  

  1. By registering an account, you agree to pay all subscription fees due to Xuviate for your use of the Service.
  1. Subscription fees are billed in advance on a monthly or yearly basis (as per the option chosen by you) and are non-refundable for the subscription period they are purchased for.
  1. You shall ensure that you provide Xuviate with a valid PayPal account, and you hereby authorize Xuviate to charge that PayPal account for the recurring subscription fees payable by you.
  1. If Xuviate does not receive any payment due by you, it may immediately and without liability to you, disable your access to the Service.
  1. All subscription fees are payable in South African rands (ZAR) and are exclusive of value added tax, which shall be added to your invoice at the appropriate rate.
  1. Any foreign exchange rate fluctuations which may affect the fees payable by you to Xuviate will be for your account.
  1. Xuviate may increase the subscription fees charged at the end of each year and such increased fees will automatically apply to your use of the Service thereafter.

Acceptable use of the Service  

  1. You are authorized to use the Service only in terms of the licence granted to you in terms of clause 34 below.
  1. You shall not:
  • attempt to copy, modify, create derivative works from, frame, mirror, republish, display, transmit, or distribute all or any portion of the Service, the Software, or this website, in any form or media or by any means; or
  • attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Service, the Software, or this website; or
  • access all or any part of the Service to build a product or service which competes with the Service or any other product or service offered by Xuviate; or
  • use the Service to provide your own services to third parties; or
  • license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service available to any third party; or
  • attempt to obtain, or assist third parties in obtaining, access to the Service, the Software, or this website, other than as provided for in this agreement.
  1. You agree to use all reasonable commercial efforts to prevent any unauthorised access to, or use of, the Service and to promptly notify Xuviate if you become aware of any unauthorised access or use.
  1. You agree that you will not use the Service to:
  • upload, download, post, email, transmit, store or otherwise make available any content that is unlawful, harassing, threatening, harmful, tortious, defamatory, libelous, abusive, violent, obscene, vulgar, invasive of another’s privacy, hateful, racially or ethnically offensive, or otherwise objectionable;
  • stalk, harass, threaten or harm another;
  • pretend to be anyone, or any entity, you are not;
  • engage in any copyright infringement or other intellectual property infringement, or disclose any trade secret or confidential information in violation of a confidentiality, employment, or nondisclosure agreement;
  • post, send, transmit or otherwise make available any unsolicited or unauthorized email messages, advertising, promotional materials, junk mail, spam, or chain letters, including, without limitation, bulk commercial advertising and informational announcements;
  • upload, post, email, transmit, store or otherwise make available any material that contains viruses or any other computer code, files or programs designed to harm, interfere with or limit the normal operation of the Service (or any part thereof), or any other computer software or hardware;
  • interfere with or disrupt the Service (including accessing the Service through any automated means, like scripts or web crawlers), or any servers or networks connected to the Service, or any policies, requirements or regulations of networks connected to the Service (including any unauthorized access to, use or monitoring of data or traffic thereon); or
  • plan or engage in any illegal activity; and/or gather and store personal information on any other users of the Service to be used in connection with any of the foregoing prohibited activities.

User generated content

  1. Content provided by you in the form of, but not limited to, articles, blog posts, messages, recommendations, comments, reviews or replies, or any other communication left directly by you on this website or provided to Xuviate through any other form of communication (‘’User Generated Content’’) is not pre-screened or approved by Xuviate.
  1. Xuviate does not accept responsibility, under any circumstances for any User Generated Content, but does however reserve the right, in its sole and absolute discretion, to delete, refuse or move any User Generated Content made available on this website.
  1. Xuviate does not endorse any content or opinion, statement, recommendation, comment, reply, review or advice expressed in any User Generated Content and expressly disclaims any and all liability in connection thereto.
  1. If you feel that any User Generated Content found on this website does not comply with the standards set out above, or that such content infringes any of your rights, you can contact Xuviate directly at info@xuviate.co.za.

Copyright and intellectual property

  1. This website and all content made available on it by Xuviate, including but not limited to any photographs, articles, listings, information, software, icons, text, graphics, lay-outs, trade names, logos, advertisements, videos, trademarks and service marks (“Content“), but excluding User Generated Content, are protected by South African and international copyright law and trade mark law, and are owned by or licensed to Xuviate.
  1. Xuviate grants to you, subject to the further terms of this agreement, a non-exclusive, non-transferable, limited and revocable right to access, display, download or use the existing and future Content for personal, non-commercial and information purposes only. Any reproduction of such Content must include the following copyright notice: ‘© Xuviate 2015. ALL RIGHTS RESERVED’.
  1. You agree that you will not use any proprietary information or materials in any way whatsoever except for use of the Service in compliance with this agreement.
  1. No portion of the Service may be reproduced in any form or by any means, except as expressly permitted in these terms. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Service, in any manner.
  2. You may not frame nor use framing technologies to enclose this website or the Content or any part thereof without Xuviate’s prior written consent.
  1. Use of any Content from this website in electronic clipping services, personalised news services, or personal blogs shall only be allowed if a short summary or extract of the Content is copied or provided, and not the whole piece of Content; and Xuviate is acknowledged as the source of the Content; and a correct and working hyperlink is provided to the source of the Content on this website; and the date upon which the Content was sourced from the website is stated in the summary of the Content.
  1. You may quote small and reasonable amounts of Content available from this website only if such quote is placed in inverted commas, the author is acknowledged and a hyperlink to the quoted Content, where available, is provided as a footnote to such quote.
  1. To request permission to use any Content contained on this website, you can contact info@xuviate.co.za with details of the specific Content and your intended use of such Content.

 Confidentiality and privacy

  1. Xuviate may be given access to Confidential Information by you as part of your use of the Service and to enable Xuviate to perform its obligations under this agreement.
  1. Xuviate agrees to hold your Confidential Information in confidence and, unless required by law, not make your Confidential Information available to any other person, for any purpose other than the implementation of this agreement.
  1. Company Admins will have access to all information stored on this website by your organisation if you are using a registered company account.
  1. Please read Xuviate’s Privacy Policy found at (http://www.xuviate.com/privacy-policy/) for more information on Xuviate’s information processing activities, including what types of information are processed and the purpose(s) for such processing.
  1. Confidential Information shall not include information that:
  • is or becomes publicly known other than through any act or omission by Xuviate;
  • was in Xuviate’s lawful possession before the disclosure;
  • is lawfully disclosed to Xuviate by a third party without restriction on disclosure;
  • is independently developed by Xuviate; or
  • is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

Third-party materials 

  1. Certain content and services available via this website may include materials from third parties. Xuviate may provide links to third-party web sites as a convenience to you.
  1. You agree that Xuviate is not responsible for examining or evaluating the content or accuracy and Xuviate does not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services provided by third parties as part of the Service or otherwise.
  1. You agree that you will not use any third-party materials in a manner that would infringe or violate the rights of any other party and that Xuviate is not in any way responsible for any such use by you.

Take down notice procedure

  1. Any notice of unlawful activity sent to Xuviate must be in writing and must be addressed to either Xuviate or its designated agent. The notice must include the following:
  • the full names and address of the complainant;
  • the written or electronic signature of the complainant;
  • identification of the right that has allegedly been infringed;
  • identification of the material or activity that is claimed to be the subject of unlawful activity;
  • the remedial action required to be taken by the service provider in respect of the complaint;
  • telephonic and electronic contact details, if any, of the complainant;
  • a statement that the complainant is acting in good faith;
  • a statement by the complainant that the information in the take-down notification is to his or her knowledge true and correct.
  1. Any person who lodges a notification of unlawful activity with a service provider knowing that it materially misrepresents the facts is liable for damages for wrongful take-down.

Termination 

  1. If you fail, or Xuviate suspects that you have failed, to comply with any of the provisions of this agreement, Xuviate, at its sole discretion, without notice to you may:
  • terminate this Agreement and/or your Account; and/or
  • terminate the license to the Service; and/or
  • suspend or deny you access to the Service (or any part thereof).
  1. Xuviate reserves the right to modify, suspend, or discontinue the Service (or any part or content thereof) at any time with or without notice to you, and Xuviate will not be liable to you or to any third party should it exercise such rights. 

Disclaimer of warranties; liability limitation

  1. XUVIATE DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME XUVIATE MAY REMOVE THE SERVICE FOR INDEFINITE PERIODS OF TIME, OR CANCEL THE SERVICE AT ANY TIME, WITHOUT NOTICE TO YOU.
  1. YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE AND ALL PRODUCTS AND SERVICES DELIVERED TO YOU THROUGH THE SERVICE ARE (EXCEPT AS EXPRESSLY STATED BY APPLE HEREIN) PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.
  1. IN NO CASE SHALL XUVIATE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OR INABILITY TO USE THE SERVICE OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE, EVEN IF ADVISED OF THEIR POSSIBILITY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, XUVIATE’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
  1. XUVIATE SHALL USE REASONABLE EFFORTS TO PROTECT MATERIALS OR INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE SERVICE, BUT YOU AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND XUVIATE HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.
  1. XUVIATE DOES NOT REPRESENT OR GUARANTEE THAT THE SERVICE WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND XUVIATE DISCLAIMS ANY LIABILITY RELATING THERETO.

Waiver and indemnity

  1. BY USING THE SERVICE, YOU AGREE TO INDEMNIFY AND HOLD XUVIATE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR BREACH OF THIS AGREEMENT, YOUR USE OF THE SERVICE, OR ANY ACTION TAKEN BY XUVIATE AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS MEANS THAT YOU CANNOT SUE OR RECOVER ANY DAMAGES FROM XUVIATE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS AS A RESULT OF ITS DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, TO WARN YOU, TO SUSPEND OR TERMINATE YOUR ACCESS TO THE SERVICE, OR TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF XUVIATE’S CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN, RESULTING FROM, OR CONTEMPLATED BY THIS AGREEMENT.

General

  1. This agreement constitutes the entire agreement between you and Xuviate and governs your use of the Service, superseding any prior agreements between you and Xuviate regarding the Service.
  1. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software.
  1. If any part of this agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Xuviate’s failure to enforce any right or provisions in this agreement will not constitute a waiver of such or any other provision.
  1. Xuviate will not be responsible for failures to fulfill any obligations due to causes beyond its control.
  1. The Service is operated by Xuviate from its offices in South Africa. The laws of South Africa apply to your use of the Service. All transactions on the Service are governed by South African law, without giving effect to its conflict of law provisions. Your use of the Service may also be subject to other laws. You expressly agree that exclusive jurisdiction for any claim or dispute with Xuviate or relating in any way to your use of the Service resides in the courts of South Africa.
  1. Xuviate may send you notice with respect to the Service by sending an email message to your Account email address or a letter via postal mail to your Account mailing address, or by a posting on the Service. Notices shall become effective immediately.
  1. Xuviate reserves the right to take steps it believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this agreement. You agree that Xuviate has the right, without liability to you, to disclose any Registration Data and/or Account information to law enforcement authorities, government officials, and/or a third party, as Xuviate believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of this agreement (including but not limited to Xuviate’s right to cooperate with any legal process relating to your use of the Service, and/or a third-party claim that your use of the Service is unlawful and/or infringes such third party’s rights).

Changes to this agreement

  1. Xuviate reserves the right at any time to modify this agreement and to impose new or additional terms or conditions on your use of the Service. Such modifications and additional terms and conditions will be effective immediately and incorporated into this agreement. Your continued use of the Service will be deemed acceptance thereof.

 

Last updated: 7 December 2015