ACCESS TO MARKETS TERMS OF SERVICE 

(Version effective as of 1 July 2022)

IMPORTANT NOTICE
(1)     The terms contained in this document govern the use of the Service provided by XILLO to its Users. Users should read this document carefully and notify XILLO if any part of this document is unclear. (2)     XILLO may amend or update these terms from time to time. Users will be notified of changes to these terms. THE CONTINUED USE OF THE SERVICES AFTER XILLO HAS PROVIDED NOTIFICATION OF ANY CHANGES SHALL BE DEEMED BY XILLO TO CONSTITUTE AN ACCEPTANCE BY THE USER OF THE AMENDED TERMS. (3)     THESE TERMS CONTAIN SPECIFIC PROVISIONS TO LIMIT XILLO’S LIABILITY, ALLOCATE RISK OR LIABILITY TO THE USER OR CONSTITUTE ACKNOWLEDGEMENT OF FACTS BY THE USER. THESE TERMS HAVE BEEN SET OUT IN CAPITAL LETTERS. PARTICULAR ATTENTION SHOULD BE PAID TO THESE TERMS SINCE THEY LIMIT THE USERS ABILITY TO RECOVER LOSSES INCURRED BY IT IN CONNECTION WITH THE USE OF XILLO’S SERVICES.(4)    The terms contained and referenced in this document shall govern the use of the Service exclusively. No other terms and conditions contained in any other document shall apply to or govern the User’s use of the Service described herein. (5)    The terms contained herein in no way derogate from the general XILLO Website Terms and Conditions available at https://xillo.io/terms-of-service/ governing the access to and use of the XILLO website. In the event of any conflict between the terms contained herein and the Website Terms and Conditions, these terms shall prevail to the extent of the conflict. 

1.        DEFINITIONS   

1.1.     In these terms:

·         “Authorised Representative” means a person authorised to act on behalf of a User which has been notified to XILLO in the prescribed manner and which has been issued with their email address; 

·         “XILLO” means XILLO, INC. as more fully described at https://xillo.io/terms-of-service/

·         “XILLO Policies” means the policies of XILLO governing the use of the Service by Users, as may be prescribed by XILLO from time to time; 

·         “XILLO Portal” means the website currently located at https://xillo.io through which Users are able to make use of the Service; 

·         “Service” means the procurement solutions and management tools made available by XILLO via the XILLO Portal; 

·         “User” means an entity which has validly subscribed to make use of the Service via the XILLO Portal;

·         “User Information” means (i) information (including personal information) made available by the User and its Authorised Representatives to XILLO including via the XILLO Portal, or which is collected and/or generated by XILLO in the course of the Service; (ii) information (including personal information) pertaining to other Users, their officers, representatives and business activities which is collected and/or verified by XILLO in the course of the Services as well as (iii) information (including personal information) of or pertaining to other Users, their officers, representatives and business activities which is generated by XILLO in the course of the Services; 

·         “UserID” means the mechanisms used by XILLO to grant access to the XILLO Portal that are issued to Authorised Representatives to enable a User’s access to the Service including usernames, passwords, and/or personal identification numbers that remain valid and have not expired or been deactivated by XILLO; 

2.          SUBSCRIBING TO THE SERVICE

2.1.     In order to validly subscribe to the Service, the User must provide complete and accurate information when signing up to the Service. The efficacy of the Service is determined by the completeness of the information provided. FAILURE TO PROVIDE COMPLETE OR CORRECT INFORMATION MAY RESULT THE USER NOT BEING ABLE TO UTILISE ALL FEATURES OF THE SERVICE

2.2.     Only a User’s Authorised Representatives will be permitted to access the XILLO Portal to use the Service on behalf of the User. XILLO will grant access to Authorised Representatives to enable them to access the XILLO Portal to make use of the Service on behalf of the User. The User must ensure and shall procure that each login is:

2.2.1.      kept confidential and is not made known to or used by unauthorised persons; and 

2.2.2.      is not used for purposes other than to access the XILLO Portal to use the Service on behalf of the User. 

2.3.     THE USER SHALL BE RESPONSIBLE FOR ALL ACTIONS PERFORMED ON THE XILLO PORTAL THROUGH THE USE OF THEIR EMAIL. IF XILLO BECOMES AWARE OF UNUATHORISED ACCESS TO THE XILLO PORTAL OR ANY FAILURE BY THE USER AND/OR ITS AUTHORISED REPRESENTATIVES TO ABIDE BY THESE TERMS, IT MAY SUSPEND THE USER’S ACCESS TO THE XILLO PORTAL OR ITS RIGHTS TO MAKE USE OF THE SERVICE AS XILLO IN ITS SOLE DISCRETION DEEMS APPROPRIATE

2.4.     Authorised Representatives of the User will have access to the XILLO Portal to make use of the Service for the duration of the period that the User is validly subscribed to make use of the Service, which period will commence on successful completion of the subscription process and will terminate upon:

2.4.1.      the User providing written notice to XILLO at connect@xillo.io confirming that it no longer wishes to make use of the Service; 

2.4.2.      The User’s right to access the XILLO Portal and make use of the Service is terminated in accordance with these terms; or

2.4.3.      Upon the Services being discontinued by XILLO. 

3.       SCOPE OF THE SERVICES 

3.1.     Access to the XILLO Portal will enable Authorised Representatives of the User to make use of the supply chain management and procurement solutions and tools made available by XILLO. The Service features made available to Users is determined inter alia by the nature of the User’s business, the User Information made available to XILLO by the User or which is generated by XILLO as it relates to the business and requirements of the User, as well by XILLO depending on the User’s business profile. 

3.2.     Users will and will procure that their Authorised Representatives at all times comply with any XILLO Policies issued by XILLO from time to time. 

3.3.     User Information will be processed by XILLO for the purpose of enabling the User to make use of and benefit from the Service. The User acknowledges that XILLO may collect User Information relating to the User from publicly available resources such as public registers (such as the Dun and Bradstreet), credit bureaus, money laundering, fraud prevention and law enforcement agencies. The User accordingly authorises XILLO to receive, store, organise, verify and process all the User Information received and collected by it and which relates to the User to the extent necessary to enable XILLO to render the Service to the User, and as may otherwise be expressly authorised under these terms. 

3.4.     The User agrees that XILLO may publish its User Information on the XILLO Portal and provide access thereto to other Users which have been authorised by the User to receive and make use of such User Information. The publication of User Information on the XILLO Portal and the provision of access thereto to other Users will in each case be implemented by XILLO in accordance with the permissions granted by the User. THE USER ACKNOWLEDGES THAT NON-DISCLOSURE OF USER INFORMATION TO OTHER USERS MAY NEGATIVELY IMPACT ITS ABILITY TO FULLY UTILISE CERTAIN SERVICE FEATURES

3.5.     BY PROVIDING USER INFORMATION TO XILLO THE USER WARRANTS THAT IT HAS OBTAINED ALL AUTHORISATIONS AND CONSENT AS MAY BE REQUIRED TO ENABLE XILLO TO USE AND PROCESS SUCH INFORMATION IN CONNECTION WITH THE SERVICES, INCLUDING AS MAY BE AGREED WITH XILLO FROM TIME TO TIME IN RELATION TO THE USE OF SPECIFIC SERVICE FEATURES BY THE USER. 

3.6.     The User may consistent with 3.3 be granted access to and the right to use the User Information of other Users. THE USER HEREBY UNDERTAKES TO USE SUCH USER INFORMATION ONLY FOR ITS OWN INTERNAL BUSINESS PURPOSES CONSISTENT WITH THE PURPOSE FOR WHICH IT WAS DISCLOSED TO THE USER BY XILLO ON BEHALF OF SUCH OTHER USER(S), AND FOR NO OTHER PURPOSE WHATSOEVER UNLESS IT HAS RECEIVED WRITTEN CONSENT THERETO FROM THE RELEVANT USER.

3.7.     XILLO will treat User Information as confidential and proprietary to Users. Accordingly, XILLO undertakes that it will not disclose or use any User Information other than as expressly agreed with each User. NOTWITHSTANDING THE AFOREMENTIONED, THE USER AGREES THAT XILLO MAY USE ITS USER INFORMATION TO DERIVE STATISTICAL INFORMATION AND TO GENERATE AND DISSEMINATE REPORTS IN CONNECTION WITH ITS OWN BUSINESS PURPOSES, PROVIDED THAT SUCH DOES NOT AMOUNT TO OR RESULT IN THE DISCLOSURE OF THE USER’S IDENTITY OR CONFIDENTIAL BUSINESS INFORMATION

3.8.     The User may by email to XILLO at connect@xillo.io at any time:

3.8.1.      Request that XILLO confirm what User Information XILLO holds relating to the User;

3.8.2.      Request confirmation regarding which other Users have access to the User Information of the User; and 

3.8.3.      Request XILLO to correct, erase or cease processing User Information to the extent that such processing is based upon the User’s consent, or that XILLO is no longer permitted to retain, or which is inaccurate, irrelevant, excessive, out of date, incomplete, misleading or has been unlawfully obtained. 

3.9.     XILLO will comply with any request made in terms of 3.8, provided that it will not be obliged to do so insofar as its processing of the relevant User Information is not based on the User’s consent and is otherwise permitted under applicable law. THE USER ACKNOWLEDGES THAT XILLO’S ABILITY TO PROVIDE THE SERVICE TO THE USER MAY BE LIMITED IN THE EVENT THAT XILLO IS PREVENTED FROM PROCESSING THE USER INFORMATION OF THE USER.  

3.10. The rights granted to the User under these terms is personal to the User. The User may accordingly not access the XILLO Portal or make use of the Service on behalf of or for the benefit of any third party, and may furthermore not cede, assign or transfer any of its rights hereunder. 

4.       FEES 

4.1.     The fees due for the Services will be as agreed with the User when it subscribes to the Services. Fees will be payable on a once-off basis in advance. 

4.2.     XILLO may increase its fees for on an annual basis. Such increase will be applied from 1 March of each calendar year and will not exceed the increase applied to the fees charged to other Users of the relevant category. 

4.3.     If the User fails to pay any amount when due, XILLO may in its discretion and without prejudice to any of its rights to claim any amount due to it:

4.3.1.      suspend the User’s access to the XILLO Portal and the Services until it has received payment in full.

4.3.3.      terminate the Users right to access the XILLO Portal and to make use of the Service. 

5.       PROHIBITED CONDUCT 

5.1.     The User may not and shall procure that its Authorised Representatives do not:

5.1.1.      provide false or misleading information to XILLO; 

5.1.2.      provide information to XILLO which it is not authorised to share with XILLO for or with other Users in connection with the Service; 

5.1.3.      share the login credentials issued to the User’s Authorised Representatives with any third party or permit any unauthorised access to the XILLO Portal, whether through the use of the login credentials or otherwise;

5.1.4.      use or disclose User Information relating to any other User for any purpose other than its own business purposes in a manner consistent with the purpose for which it was disclosed to the User by XILLO; 

5.1.5.      publicly disclose or publish any report made available by XILLO in connection with the Service, unless expressly authorised thereto by XILLO in writing; 

5.1.6.      access the XILLO Portal or make use of the Service for the benefit of anyone other than the User; or 

5.1.7.      contravene the XILLO Policies. 

6.       TERMINATION / SUSPENSION OF SERVICE

6.1.     If the User or any of its Authorised Representatives commits any breach of these terms which is not capable of remedy or commits a breach and subsequently fails to remedy such breach upon being notified to do so, then XILLO may without prejudice to any of its rights it may have under law, in its discretion, terminate or suspend the User’s rights to access the XILLO Portal and to make use of the Service. 

7.       DISCLAIMERS 

7.1.     THE USER ACKNOWLEDGES THAT THE XILLO PORTAL AND THE SERVICE AS WELL AS ALL RELATED INFORMATION AND REPORTS MADE AVAILABLE TO THE USER BY XILLO DOES NOT CONSTITUTE PROFESSIONAL ADVICE OF ANY KIND AND THAT ITS USE OF AND RELIANCE ON THE SERVICE ACCORDINGLY OCCURS AT ITS OWN RISK. 

7.2.     XILLO USES ITS BEST ENDEAVOURS TO ENSURE THAT THE INFORMATION AND REPORTS PROVIDED TO THE USER IN CONNECTION WITH THE SERVICE ARE ACCURATE. XILLO HOWEVER CANNOT GUARANTEE THE COMPLETENESS, ACCURACY OR CORRECTNESS OF SUCH INFORMATION, AND ACCORDINGLY HEREBY DISCLAIMS ANY WARRANTY TO THAT EFFECT.  

7.3.     XILLO WILL NOT BE LIABLE FOR ANY FAILURE BY THE USER TO PROVIDE IT WITH THE NECESSARY AUTHORISATIONS AND CONSENTS AS REQUIRED UNDER THESE TERMS, AND THE USER AGREES THAT IT WILL INDEMNIFY AND HOLD XILLO AND ITS PERSONNEL HARMLESS AGAINST ANY LOSSES INCURRED BY XILLO OR CLAIMS MADE AGAINST IT OR ITS PERSONNEL AS A RESULT OF SUCH FAILURE. 

7.4.     XILLO DOES NOT WARRANT THAT THE XILLO PORTAL OR THAT ALL SERVICE FEAUTURES WILL ALWAYS BE AVAILABLE. XILLO RESERVES THE RIGHT TO CANCEL OR SUSPEND A USER’S (OR ANY OF ITS AUTHORISED REPRESENTATIVES) ACCESS TO THE XILLO PORTAL AND USE OF THE SERVICE AT ANY TIME IF IT SUSPECTS THAT THE USER (OR ITS AUTHORISED REPRESENTATIVBES) IS MAKING USE OF THE XILLO PORTAL OR THE SERVICE IN AN UNUATHORISED OR UNLAWFUL MANNER. 

8.       LIABILITY 

8.1.     XILLO’S TOTAL AGGREGATE LIABILITY IN RESPECT OF ANY AND ALL CLAIMS, ACTIONS, DAMAGES, COSTS, LOSSES, EXPENSES AND OTHER LIABILITIES ARISING DURING ANY 3 (THREE) MONTH PERIOD (THE FIRST OF WHICH SHALL COMMENCE ON THE DATE THAT THE USER’S SUBSCRIPTION THE SERVICE COMMENCES) WILL BE LIMITED TO THE AMOUNT OF SERVICE FEES RECEIVED BY XILLO DURING SUCH PERIOD, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON CONTRACT, STATUTE, DELICT OR OTHERWISE.

8.2.     IN NO EVENT SHALL XILLO BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXTRINSIC OR SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSSES (WHETHER FORESEEABLE OR UNFORESEEABLE) OF ANY KIND (INCLUDING, WITHOUT LIMITATION, IN RESPECT OF LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OR CORRUPTION OF DATA, BUSINESS INTERRUPTION, THIRD PARTY CLAIMS OR OTHER PECUNIARY LOSS ARISING OUT OF THE RELIANCE ON THE SERVICE), WHETHER BASED ON CONTRACT, DELICT, STATUTE OR OTHERWISE, EXCEPT TO THE EXTENT THAT THE LIMITATION OF LIABILITY IS NOT PERMITTED BY APPLICABLE LAW. 

9.       GENERAL 

9.1.    If any clause or sentence in these terms is held by a court of law to be void, illegal or unenforceable the remaining terms contained herein shall not be affected thereby and shall remain in full force and effect. 

9.2.    The failure by XILLO to enforce any of the terms contained herein, unless waived in writing, shall not constitute a waiver of XILLO’s rights to enforce such provision or any other provision contained herein in the future. All rules of interpretation which prescribe that an agreement be interpreted against the party responsible for its drafting are hereby excluded. 

9.3.    These terms shall be governed by the laws of the State of Delaware.