xApp terms of service
This website is operated by xApp. Throughout the site, the terms “we”, “us” and “our” refer to xApp. xApp offers this website, including all information, tools and services available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.
Please read these Terms of Service carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.
This Agreement applies to all Customers and includes provisions which are applicable to the Customer’s app users, and others who access the Service and those that access the mobile app our Service creates (collectively, “Users”).
In this Agreement (except to the extent expressly provided otherwise):
1.1 “Account” means an account enabling a person to access and use the Hosted Services including both administrator accounts and user accounts;
1.2 “Agreement” means this agreement including any Schedules, and any amendments to this Agreement from time to time;
1.3 “Business Day” means any weekday other than a public holiday in New Zealand;
1.4 “Business Hours” means the hours of 09:00 to 17:00 GMT+13 on a Business Day;
1.5 “Charges” means the following amounts:
1.5.1 the amounts specified Clause;
1.5.2 such amounts as may be agreed in writing by the parties from time to time; and
1.5.3 amounts calculated by multiplying xApp’s standard time-based charging rates (as notified by xApp to the Customer before the date of this Agreement) by the time spent by xApp’s personnel performing the Support Services (rounded down by xApp to the nearest quarter hour);
1.6 “Customer” means any party who has at any time signed up for the Hosted Services via the Hosted Services Specification form.
1.7 “Customer Confidential Information” means: any information disclosed by or on behalf of the Customer to xApp at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure was not in the public domain and:
1.7.1 was marked or described as “confidential”; or
1.7.2 should have been reasonably understood by xApp to be confidential;
1.7.3 the Customer Data; and
1.7.4 The Customer Own Client Data
1.8 “Customer Data” means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to xApp for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer (but excluding analytics data relating to the use of the Platform and server log files);
1.9 “Customer Personal Data” means any Personal Data that is processed by xApp on behalf of the Customer in relation to this Agreement, but excluding data with respect to which xApp is a data controller;
1.10 “Data Protection Laws” means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Customer Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679) (insofar as any party to this agreement or any app user is an EU resident) and the New Zealand Privacy Act 1993;
1.11 “Documentation” means any documentation (whether in printed, digital, sound, text or video format) for the Hosted Services produced by xApp and delivered or made available by xApp to the Customer;
1.12 “Down Payment” means 50% of the Set-up Fee, payable before the work commences.
1.13 “Effective Date” means the date of execution of the Hosted Services Specification form and Payment of the Down Payment;
1.14 “Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
1.15 “Hosted Services” means xApp Services, as specified by the Customer in the Hosted Services Specification Form and which will be made available by xApp to the Customer as a service via the internet in accordance with this Agreement;
1.16 “Hosted Services Defect” means a defect, error or bug in the Platform having a material adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
1.16.1 any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services;
1.16.2 any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
1.16.3 a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or
1.16.4 an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software;
1.17 “Hosted Services Specification” means the specification for the Platform and Hosted Services set out in the Hosted Services Specification Form and in the Documentation;
1.18 “Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights(and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs, mask work rights, moral rights, rights of publicity, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
1.19 “Maintenance Services” means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;
1.20 “Mobile App” means the mobile application subscribed to by the Customer that is made available for download by xApp through the Google Play Store and the Apple App Store;
1.21 “Personal Data” has the meaning given to it in the Data Protection Laws applicable in New Zealand from time to time;
1.22 “Platform” means the platform managed by xApp and used by xApp to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
1.23 “Schedule” means any schedule attached to the main body of this Agreement;
1.24 “Services” means any services that xApp provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;
1.25 “Set-up Fee” means the fee to set up the app infrastructure, the Customer back-end log-in area, and any features the Customer has requested in the Hosted Services Specification Form;
1.26 “Support Services” means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;
1.27 “Supported Web Browser” means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that xApp agrees in writing shall be supported;
1.28 “Term” means the term of this Agreement, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2;
1.29 “Update” means a hotfix, patch or minor version update to any Platform software; and
1.30 “Upgrade” means a major version upgrade of any Platform software.
2. Maintenance and Variation of this Agreement
2.1 This Agreement is maintained on our website and we reserve the right, in our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to our website.
2.2 It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Hosted Services following the posting of any changes to these Terms of Service constitutes acceptance of those changes.
2.3 When we change the Agreement in a material way, we will update the ‘last updated’ date at the bottom of this page. Your continued use of the Service after any such change constitutes your acceptance of the new terms. If you do not agree to any of these terms or any future terms, do not use or access (or continue to access) the Hosted Service. You can review the most current version of the Terms of Service at any time at this page.
3. Hosted Services
3.1 XApp shall create an Account for the Customer and shall provide to the Customer login details for that Account on or promptly following the payment made under clause 220.127.116.11 of this Agreement.
3.2 XApp hereby grants to the Customer a worldwide, non-exclusive license to use the Hosted Services by means of a Supported Web Browser in accordance with the Documentation during the Term.
3.3 The licence granted by xApp to the Customer under Clause 3.2 is subject to the following limitations:
3.3.1 the Hosted Services may only be used by the officers, employees, agents and subcontractors of the Customer;
3.3.2 the Customer must not sub-license its right to access and use the Hosted Services;
3.3.3 the Customer must not permit any unauthorised person to access or use the Hosted Services and shall use reasonable endeavours, including reasonable security measures relating to administrator Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an administrator Account.
3.3.4 the Customer must not republish or redistribute any content or material (except for Customer Data) from the Hosted Services;
3.3.5 the Customer must not make any alteration to the Platform except as permitted by the Documentation; and
3.3.6 the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services without the prior written consent of xApp.
3.4 XApp shall use all reasonable endeavours to maintain the availability of the Hosted Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Hosted Services, but does not guarantee 100% availability.
3.5 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:
3.5.1 a Force Majeure Event;
3.5.2 a fault or failure of the internet or any public telecommunications network;
3.5.3 a fault or failure of the Customer’s computer systems or networks;
3.5.4 any breach by the Customer of this Agreement; or
3.5.5 scheduled maintenance carried out in accordance with this Agreement.
3.6 XApp may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to xApp under this Agreement is overdue, and xApp has given to the Customer at least 10 days’ written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
3.7 Acknowledgements and warranty limitations
3.7.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, xApp gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
3.7.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, xApp gives no warranty or representation that the Hosted Services will be entirely secure.
3.7.3 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specification; and xApp does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
3.7.4 The Customer acknowledges that xApp will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, xApp does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
4. Term & Billing
4.1 Customer acknowledges that payment of Fees is authorization to xApp to begin providing Services. These Services include, but are not limited to, providing platform access, publishing Apps, platform setup and App building. We will start providing Services immediately upon Customer payment of Fees.
4.2 All Fees are earned when received and are non-refundable. Fees may be paid via bank transfer or Credit Card only and Customer authorizes us to set up an automated recurring billing process. If Customer desires to terminate the service, such notice must be delivered to us in writing via email before the next recurring billing is processed. Customer agrees that they are not entitled to receive a refund of any Fee and Customer further agrees that they will not dispute the charges and/or request a chargeback of any Fee from their credit card processor or banking institution.
4.3 Customer will pay:
4.3.1 Set-up Fees
18.104.22.168 50% of the Set up Fee before work commences
22.214.171.124 25% of the Set-up Fee upon Submission to the App Stores; and
126.96.36.199 25% of the Set-Up Fee upon successful publication in the second of the Apply and Google App Stores.
4.3.2 Recurring Subscription Fees monthly in advance commencing on the date in clause 188.8.131.52 of this Agreement.
4.5 The Agreement will continue for the entirety of the Term and automatically renew for successive periods equal to the Term.
4.6 Either party may terminate this Agreement at any time and for any reason without notice to the other party. If a Customer terminates this agreement before the end of the current Term, the customer will be required to pay the remaining amounts due through the end of the Term and are not be entitled to a refund of any amount.
4.7 Termination or expiration of this Agreement shall not affect any rights or obligations of the parties, including the payment obligations due through the end of the Term or which have accrued up to the date of such termination or expiration. The provisions of Sections 4.4– 4.7 shall survive termination or expiration of this Agreement.
5. Responsibility for Apps
5.1 Customer responsibility for Customer’s Apps: The Customer is solely responsible for the activity that occurs on or through the Customer’s App. We (xApp) will not be liable for the Customer’s losses caused by any unauthorized use of the Customer’s account, and the Customer shall be solely liable for the losses due to such unauthorized use.
5.2 The Customer is solely responsible for interactions with App Users. We reserve the right, but have no obligation, to monitor disputes between the Customer and other Users. We will have no liability for your interactions with other Users, or for any User’s action or inaction.
5.3 The Customer must comply with the Acceptable Use Policy, and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an administrator Account comply with the Acceptable Use Policy.
5.4 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
5.5 The Customer must not use the Hosted Services:
5.5.1 in any way that is unlawful, illegal, fraudulent or harmful; or
5.5.2 in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
5.5.3 to not send any prohibited content over the Platform. Prohibited content includes but is not limited to:
184.108.40.206 Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
220.127.116.11 Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
18.104.22.168 Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
22.214.171.124 Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
126.96.36.199 Any content that implicates and/or references personal health information that is protected by legislation in New Zealand; and
188.8.131.52 Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
5.6 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
5.7 Separate End User Policies:
5.7.2 As part of our Service, we will review your app for Compliant with Google and Apple standards; however, Apple and Google will determine final compliance independently; we cannot guarantee that an app will be published by either the Apple or Google Play. For details regarding Google and Apple requirements and standards, go to
184.108.40.206 https://play.google.com/about/developer-content-policy and
220.127.116.11 https://developer.apple.com/app-store/review/guidelines, respectively.
5.8 Changes to the Service. We’re always innovating and finding ways to provide our Users with new and innovative features and services. Therefore, we may, without prior notice, change the Service; change the pricing of the service; add or delete features of the Service, to you or to Users generally; or create usage limits for the Service.
6. Limitations and exclusions of liability
6.1 Nothing in this Agreement will:
6.1.1 limit or exclude any liability for fraud or fraudulent misrepresentation;
6.1.2 limit any liabilities in any way that is not permitted under applicable law; or
6.1.3 exclude any liabilities that may not be excluded under applicable law.
6.2 The limitations and exclusions of liability set out in this Clause 6 and elsewhere in this Agreement:
6.2.1 are subject to Clause 6.1; and
6.2.2 govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
6.3 Neither party shall be liable to the other party in respect of
6.3.1 any losses arising out of a Force Majeure Event;
6.3.2 any loss of profits or anticipated savings;
6.3.3 any loss of revenue or income;
6.3.4 any loss of use or production;
6.3.5 any loss of business, contracts or opportunities;
6.3.6 any loss or corruption of any data, database or software;
6.3.7 any special, indirect or consequential loss or damage.
6.4 The liability of each party to the other party under this Agreement in respect of any event or series of related events shall not exceed the total amount paid and payable by the Customer to xApp under this Agreement in the 12 month period preceding the commencement of the event or events.
6.5 The aggregate liability of each party to the other party shall not exceed the total amount paid and payable by the Customer to xApp under this Agreement.
6.6 The Customer agrees to defend, indemnify and hold xApp harmless, along with our parents, subsidiaries, agents, affiliates, Owners, vendors, officers and employees from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including reasonable attorneys fees and cost) arising from the Customer’s:
6.6.1 use of and access to the Service;
6.6.2 violation of any term of this Agreement;
6.6.3 violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights;
6.6.4 violation of any applicable law, rule, or regulation; or
6.6.5 any claim or damages that arise as a result of any of the Customer’s User Content or any that is submitted via the Customer’s account or app.
6.7 Force Majeure Event
6.7.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
6.7.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must promptly notify the other; and inform the other of the period for which it is estimated that such failure or delay will continue.
6.7.3 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
6.8 In no case shall xApp, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the Hosted Services, or any other service or any products procured using the service, or for any other claim related in any way to your use of the service or any product, 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 the service or any content (or product) posted, transmitted, or otherwise made available via the service, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.
7. Acceptable Use of the Service
We provide Customers with an amazing platform to allow Users discover content, and discuss and share that content with others. To keep the Service running smoothly for all of our Users, you agree that you will use the Service only in a manner consistent with the Acceptable Use Policy below.
7.1 Sharing your Content
7.1.1 Customer & User content: We may allow you to post content on the Service, including comments, photos, blog posts, messages, blog URLs, and other materials. Any content a User submits, posts, displays, or otherwise makes available on the Service, including all Intellectual Property Rights therein, is referred to as “User Content.” The Customer retains ownership of Customer and User content.
7.1.2 How we can use Customer content. The Customer owns all of the User Content that the Customer or it’s Users post or publish (“post”) on the Service. Customer permits xApp to use the Customer and/or trade name and logo on its website and other promotional materials.
7.1.3 Customer responsibility for Customer & User content. By uploading, posting, submitting or otherwise disclosing or distributing Customer or User Content, Customer represents and warrant that the Customer owns all rights in the Customer and User Content and that any User Content posted does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights or rights of publicity or privacy. We reserve the right, but are not obligated, to reject and/or remove any User Content that we believe, in our sole discretion, violates these provisions. We take no responsibility and assume no liability for any User Content that you or any other Users or third parties post or send over the Service. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Content that you send, upload, download, stream, post, transmit, display, or otherwise make available or access through your use of the Service, is solely your responsibility, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. We are not responsible for any public display or misuse of your User Content.
7.2 Our Content
7.2.1 Content. Except for Customer and User Content: the Service, and all Intellectual Property Rights including therein and related thereto, are our exclusive property (“Exclusive Content”).
7.2.2 Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license to the Exclusive Content, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from the Exclusive Content, including without limitation any materials or content accessible on the Service.
7.2.3 Our name and other graphics, logos, designs, page headers, button icons, scripts, and service names are trademarks, trademarks or trade dress protected by the laws of the United States, New Zealand, and/or other countries or jurisdictions. Our trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion. Use of the Exclusive Content or materials on the Service for any purpose not expressly permitted by this Agreement is strictly prohibited.
7.2.4 To publish and update apps to Google Play and the Apple App Store, it is required we provide proprietary information and files such as, but not limited to, APKs, IPAs, P12s, keystore certificates, push notification certificates, etc. These files and information are a proprietary part of our Service and will not provided to Customers or Users.
7.2.5 If we assist the Customer with (including coordinating with a 3rd party) providing enhancement(s) to the Service or Software, create custom functionality, create custom plugins, including any and all derivatives thereto (collectively referred to an “Enhancements”), even if the Customer paid us for such Enhancements, such Enhancements will be owned by us and Customer hereby does and shall make all assignments and take all reasonable acts necessary to accomplish the foregoing ownership.
7.2.6 Feedback you provide. We value input from our Customers and Users, and are always interested in learning of ways we can make the Service better. You may choose to or we may invite you to submit comments, ideas or feedback about the Service, including without limitation about how to improve the Service or our products (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, we do not waive any rights to use similar or related Feedback previously known to us, or developed by our employees, or obtained from sources other than you.
7.2.7 Analytics. We monitor User service activity.
8. Data Protection & Confidentiality
Notwithstanding any other provision in this agreement, XApp ’s confidentiality obligations are as follows:
8.1 XApp must:
8.1.1 keep the Customer Confidential Information strictly confidential;
8.1.2 not disclose the Customer Confidential Information to any person without the Customer’s prior written consent, or only under conditions of confidentiality no less onerous than those contained in this Agreement;
8.1.3 use the same degree of care to protect the confidentiality of the Customer Confidential Information as xApp uses to protect xApp’s own confidential information of a similar nature, being at least a reasonable degree of care; and
8.1.4 act in good faith at all times in relation to the Customer Confidential Information.
8.2 Notwithstanding Clause 8.1, xApp may disclose the Customer Confidential Information to xApp’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to this Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
8.3 This Agreement imposes no obligations upon xApp with respect to Customer Confidential Information that:
8.3.1 is known to xApp before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
8.3.2 is or becomes publicly known through no act or default of xApp; or
8.3.3 is obtained by xApp from a third party in circumstances where xApp has no reason to believe that there has been a breach of an obligation of confidentiality.
8.4 The restrictions in this Agreement do not apply to the extent that any Customer or User Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of xApp on any recognised stock exchange.
8.5 The provisions of this Clause 8 shall continue in force indefinitely following the termination of this Agreement.
8.6 Data protection: Each party shall comply with the Data Protection Laws of New Zealand as applicable from time to time with respect to the processing of the Customer Personal Data.
9.1 No Agency; Waiver. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind us in any respect whatsoever. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
9.2 Notification. We may provide notifications, whether such notifications are required by law or are for other business purposes, to you via email notice, “push” notification on your mobile device, written or hard copy notice, or through posting of such notice on the Service, as determined by us in our sole discretion. We reserve the right to determine the form and means of providing notifications to Customers. We are not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us.
9.3 Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with us in connection with the Service, shall constitute the entire agreement between you and us concerning the Service. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and enforceable.
9.4 Assignment. This Agreement is not assignable, transferable or sub licensable by you except with our prior written consent. We may transfer, assign or delegate this Agreement and its rights and obligations without consent.
9.5.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
9.5.2 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
9.5.3 This Agreement may be varied at xApp’s sole instance from time to time by updating it on the xApp website.
9.5.4 Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.
9.5.5 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
9.5.6 This Agreement shall be governed by and construed in accordance with New Zealand law.
9.5.7 The courts of New Zealand shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.