XAMUN TERMS OF SERVICE
BlastAsia, Inc. (“BAI”, BlastAsia), a corporation formed under the laws of the Republic of the Philippines, with an office address at 23/F The Orient Square Building, Emerald Ave, San Antonio, Pasig, Metro Manila, Philippines 1605
the entity agreeing to the terms herein (“Participant”, “You”, “you” or “Customer”).
By using or accessing any part of the Service, Customer agrees that Customer has read, understands, and agrees to be bound by all these Terms of Service (“Terms”). If the Customer does not agree to all these Terms, the Customer must not use, avail or access the Service. If Customer is entering into these Terms on behalf of a company, Customer acknowledges that Customer has the authority to bind that company to the terms of these Terms. If the individual accepting these terms does not have such authority, such individual must not accept these terms and may not use, avail or access the service.
1. Xamun Professional Services.
Subject to the terms and conditions of these Terms, BlastAsia will perform the Xamun Professional Services such as software engineering services, design services, consultation services, project management services, research and development services, product management services, product development services or product testing services (“Xamun Services”) set forth on an Agreement (Order form, Statement of work, Contract, Proposal) or as otherwise requested. The manner and means by which BlastAsia chooses to complete the Services are in BlastAsia’ sole discretion and control. BlastAsia’ obligations to provide the Services are conditioned upon receiving such information and cooperation from you as may be reasonably necessary to perform the Services.
Upon request and execution of an Agreement, BlastAsia shall provide the Professional Services to Customer. The scope of Professional Services shall be limited to those outlined in the Agreement.
3. No Support or Maintenance.
Unless you have a subscription that provides for support, you acknowledge and agree that BlastAsia will have no obligation to provide you with any support or maintenance except as stated in an Agreement
4. Change Orders
Any changes, modifications or additions to the Professional Services, including scope, Fees and/or Expenses shall only be valid if agreed to in by both Parties in a signed Agreement. A validly executed Change Order shall modify the Agreement, Professional Services and the Fees, and shall be binding on the parties.
5. Acceptance Criteria
Upon completion of each Deliverable or the conclusion of a milestone, BlastAsia will: (i) submit a complete copy of the Deliverable to Customer via electronic communication; and (ii) demonstrate and test its functionality in accordance with test specifications (if any) set forth in the Agreement. A Customer shall provide Notice of any defect or problem relating to the Deliverable not later than five (5) business days after the date of delivery stating any objection to the Deliverable in sufficient detail to clearly explain the nature of the problem alleged. Absent such Notice, the Company shall have no obligation to make further changes to the Deliverable and the Services shall be deemed fulfilled.
BlastAsia will make commercially reasonable efforts to achieve timelines explicitly written into an Agreement executed by both parties. From time to time, BlastAsia may make additional informal estimations for specific activities. However, only timelines explicitly written into a Statement of Work may be relied upon. BlastAsia and Customer agree not to rely on informal estimations made outside the context of an official Statement of Work.
BlastAsia may subcontract the services to any of its affiliates.
8. Modification of Terms of Service
BlastAsia reserves the right to update and change the Terms of Service from time to time; an updated version will be published on our website at https://www.xamun.com/terms-of-service
Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to this Terms of Service. Customers may terminate use of the Services if the Terms are modified in a manner that substantially affects Customer’s rights in connection with use of the Services. Should the modification include the introduction or changes to provisions which affect Customer’s personal information, Customer will be made to actively consent to the changes (via a click or opt-in mechanism).
Customer’s continued use of the Service after any such changes shall constitute consent to such changes. Customer can review the most current version of the Terms and Conditions at any time at https://www.xamun.com/terms-of-service
9. Fees and Payment Terms
The fees for any Services are as set forth on an Agreement. You will authorize BlastAsia to invoice the fees for hourly or milestone-based service fees in advance, in accordance with the billing frequency set forth on an Agreement. Fees are non-refundable once services are rendered and invoiced or when milestones are funded for work.
Confidential Information" shall mean all confidential and Confidential information of both parties, including, but not limited to, all ideas, techniques, models, inventions, know-how, processes, software programs, source code, trade secrets, and works of authorship relating to current, future, and proposed products and services; customer, employee, and supplier lists; and any and all content shared by both parties.
a. Subject to clause 10-b, each party (and all its personnel) must:
keep confidential; and
not use or permit any unauthorized use of, all Confidential Information.
The Disclosing Party assume all risks associated with use of your Confidential information, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your confidential information that personally identifies you or any third party. You represent and warrant that your Confidential information does not violate BlastAsia’s Acceptable Use Policy (set forth below). You may not represent or imply to others that your Confidential information is in any way provided, sponsored or endorsed by BlastAisa. Because you alone are responsible for your Confidential information, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy.
b. Clause 10-a does not apply where:
the information is in, or comes into, the public domain (other than by a breach of this clause 10 by the relevant party); the relevant party has the prior written consent of the party that disclosed the Confidential Information;
the disclosure is required by law;
the disclosure is required in order to comply with this Agreement, provided that the party disclosing the Confidential Information ensures the recipient complies with the terms of this clause 10; and
the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the party disclosing the Confidential Information ensures the adviser complies with the terms of this clause 10.
c. Each party acknowledges and agrees that monetary damages may not be an adequate remedy for a breach of this Confidentiality clause. A party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause.
d. This clause 6 will survive the termination or expiry of this Agreement.
a. Copyrights and Source Codes. Any product(s) (including, without limitation, software, computer programs, program tools, program listings, code, algorithms, schematics, data, know-how, processes, ideas, inventions, reports, documentations (whether patentable or not)) developed or created by Client, or for Client by BlastAsia, during the term of this Agreement and/or in performance of any Statement of Work (“Work Product” and “Materials”) is “Work made for Hire” and shall be the property of Client upon complete receipt of all payments. Client shall have exclusive ownership of all rights, title, and interest in such Work Product and Materials, subject to the rights of BlastAsia for its Catalysts and Developer Tools referenced below.
b. Pre-existing Work. In the event Materials supplied by Client are pre-existing or originate from third parties, all copyright notices and/or other legend of ownership must be reproduced under the licenses granted in this section. All rights, title, and interest will belong to Client and BlastAsia will provide updates of the source code to Client as work progresses.
c. Other Rights. No other rights or licenses, including but not limited to patent licenses, are granted under this Agreement.
d. Work Made for Hire. BlastAsia agrees that the development of the Software (but excluding Blueprints, Catalysts and Developer Tools) is “Work Made for Hire” within the meaning of the Copyright Act of 1976, as amended from time to time, and that the Software shall be the sole property of the Client, subject to the rights of the BlastAsia for its Catalysts and Developer Tools referenced below.
e. Blueprints, Catalysts and Developer Tools. Blueprints, Catalysts and developer tools include Solution Templates, materials information, trade secrets, generic program codes and standards, algorithms, methodologies, processes, tools, reference data models, documents, notes, programming techniques, reusable libraries, routines, formulae, and other templates that:
are developed prior to the Software and utilized by BlastAsia in connection with the Software;
are designed to perform generalized functions not specific to the particular requirements of the Client or the Software;
do not contain any of the Client’s Confidential Information or other information or items provided by the Client; and
cannot reasonably be expected to provide Client an advantage over its competitors. These Blueprints, Catalysts and Developer Tools shall, at all times, continue to remain the be sole property of the BlastAsia except that the perpetual and non-transferrable right to use the same shall be transferred to the Client in accordance with the terms and conditions of this agreement.
f. Assignment. To the extent any Work performed by the BlastAsia does not qualify as a “Work Made for Hire” under applicable law, BlastAsia hereby irrevocably and unconditionally assigns to Client, without further compensation, all of its rights, title, and interest in and to the Software and any and all related patents, copyrights, and trade names or other rights or licenses, including but not limited to patent licenses, are granted under this Agreement, subject to the rights of the BlastAsia for its Catalysts and Developer Tools referenced below.
12. Relationship of Parties.
BlastAsia and you are independent contractors. You understand that BlastAsia is not an employee, and that the performance of Services requires a collaborative, professional relationship of equals where mutual professional respect, courtesy and consideration are expected. Due to the virtual nature of the relationship, you understand the importance of communication, and agree to respond to questions, requests and communications from BlastAsia in a timely manner. You understand that BlastAsia is a business with other clients, and requires fair, realistic notice in order to attend to requests and projects. You understand that BlastAsia may require detailed clarification of tasks in order to meet expectations and provide the best support and highest quality work, and agrees to provide specifications at the level of detail required by BlastAsia.
13. Term; Termination.
a. Term. The term of these Terms begins on the date you accept these Terms and continues until all agreements have completed, expired, or been terminated, unless otherwise set forth in an Agreement (Statement of Work, Proposal, Contract, Order Form) (the “Term”).
b. Termination. Either party may terminate the Agreement upon sixty (60) days’ notice to the other party. Either party may terminate this Agreement immediately if the other party breaches the terms of this Agreement and the breach remain uncured for 30 days from the date of receipt of notice. In case of termination, BlastAsia shall be paid for the Services provided on a pro-rata basis.
14. Force Majeure:
Neither party shall be liable for any failure or delay in fulfilling the terms of this Agreement due to fire, strike, war, civil unrest, terrorist action, government regulations, act of Nature or other causes which are unavoidable and beyond the reasonable control of the party claiming force majeure. This provision shall not be construed as relieving either party from its obligation to pay any sum due to the other party.
EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
16. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL BLASTASIA BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES OR SOFTWARE DEVELOPED, EVEN IF BLASTASIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES OR SOFTWARE DEVELOPED IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY, BLASTASIA’ LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (I) THE FEES YOU HAVE PAID BLASTASIA IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY AND (II) US$50. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
1. To The fullest extent permitted by law, Customer will indemnify BlastAsia from and against any and all liabilities, suits, losses, damages and judgments, costs and expenses (including reasonable outside counsel's fees and expenses) in connection with (i) Customer use of the Services in a manner not authorized under these Terms, (ii) any other breach of these Terms by Customer, and (iii) Customer’s use of Prior Inventions or Reusable Modules in a manner not authorized under these Terms.
18. Electronic Communications.
By using availing of Services, you consent to receiving electronic communications from BlastAsia. You agree that any notices BlastAsia is required to provide you may be provided electronically.
19. Non-Hire and Non-Solicitation:
During the term of this Agreement and for one (1) year thereafter, neither party will directly or indirectly recruit, solicit or induce any personnel, Consultant or advisor of the other party to terminate his or her relationship with such other party without the prior written permission of the other party.
20. GOVERNING LAW AND VENUE.
No failure or delay by either party in exercising any right under these Terms will constitute a waiver of that right. If any term or provision of these Terms is determined to be illegal or invalid, such illegality or invalidity will not affect the validity of the remainder of these Terms. This terms shall be governed, construed and enforced in accordance with the laws of the Republic of the Philippines, without regard to its conflict of laws provisions. These terms shall be governed, construed and enforced in accordance with the laws of the Republic of the Philippines, without regard to its conflict of laws provisions. In case of any matter, dispute or claim arising from the terms of this Agreement, the parties agree to mutual consultation in good faith to resolve the matter, dispute or claim. Should the parties be unable to arrive at a resolution, the parties agree to submit the matter, dispute or claim to arbitration with the Philippine Dispute Resolution Center, Inc. (PDRCI) in accordance with the PDRCI rules in force at the time. The arbitration shall be conducted in English and there shall be one (1) arbitrator mutually agreed upon by the parties. The seat of arbitration shall be in Pasig City, Philippines.. These Terms, which include any Agreements, are the entire agreement between the parties hereto with respect to the subject matter hereof. Neither party may assign these Terms without the other party’s consent, except that BlastAsia may assign these Terms without consent in connection with any merger where BlastAsia is not the surviving entity, reorganization, or sale of all or substantially all of its assets. These Terms will be binding upon each party’s successors and permitted assigns.
LAST REVISED ON: March 9, 2023