This agreement (the “Agreement”) constitutes a binding agreement between xyzt.ai BV, with registered office at Brouwersstraat 80, 3000 Leuven, Belgium, VAT-BE-0721.781.156 (the “Service Provider”), and the customer entity on behalf of which the Services trial subscription is being procured, as per the details provided by or on behalf of this entity on the Service Provider’s website (the “Customer”).
BY ACCESSING THE SERVICES, YOU ACCEPT (TO BE COMMITTING THE CUSTOMER) TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, INCLUDING THOSE SET OUT IN ANY DOCUMENTS ANNEXED TO OR REFERENCED IN THIS AGREEMENT. BY ACCESSING THE SERVICES, OR CLICKING ON THE AGREEMENT “ACCEPT” BUTTON, YOU ARE CONSENTING (AND COMMITTING THE CUSTOMER ) TO BE BOUND BY THIS AGREEMENT AND ANY DOCUMENTS ANNEXED TO OR REFERENCED IN IT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND ANY DOCUMENTS ANNEXED TO OR REFERENCED IN IT ON BEHALF OF THE CUSTOMER AND TO BIND THE CUSTOMER TO THESE TERMS, AND THAT THE CUSTOMER DETAILS PROVIDED ARE ACCURATE AND COMPLETE. IF YOU DO NOT AGREE TO ALL OF THOSE TERMS, OR DO NOT HAVE THE AUTHORITY TO BIND THE CUSTOMER, IMMEDIATELY DISCONTINUE (ANY ATTEMPT TO) ACCESS OR USE THE SERVICES.
This Agreement shall commence on the date the Customer consents or is deemed to have consented (as per the terms of this Agreement) to the terms and conditions of this Agreement (the “Effective Date”) and shall continue for the term of the Trial Period (as per clause 3.1. below).
The Customer and the Service Provider may individually be referred to as a “Party” and jointly as the “Parties”.
PREAMBLE
Whereas the Service Provider has developed and/or owns certain software applications through which it provides services to customers in a ‘software as a service’ mode;
Whereas the Parties are currently discussing their mutual interests in concluding an agreement for the Customer’s use of the Service Provider’s ‘software as a service’ in its business operations;
Whereas in order to determine its business interests in the afore mentioned contractual relationship with the Service Provider, the Customer wishes to evaluate the Service Provider’s ‘software as a service’ that would be the subject of such agreement;
Whereas such evaluation requires the Customer to obtain a restricted ‘software as a service’ trial subscription from the Service Provider;
Whereas the Service Provider is willing to grant to the Customer such restricted trial subscription, subject to the terms and conditions set forth herein.
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Services
For the purposes of this Agreement:
- “Access Credentials” shall mean the username, password, private keys, certificates, account details and similar credentials as may be issued to the Authorised Users (whether by the Service Provider or a third party (subcontractor)), enabling access to the Services;
- “Authorised Users” shall mean employees of the Customer (any third parties being subject to the Service Provider’s prior written consent) who are authorised by the Customer to access and use the Services for the Customer’s internal business operations;
- “Documentation” shall mean the documentation made available to the Customer by the Service Provider from time to time (in a format and through means of the Service Provider’s choice), which documentation sets out a description of the Services and the user instructions for the Services.
- “Services” shall mean the Service Provider’s xyzt.ai end-to-end location data analytics ‘Software as a Service’ solution.
2. Services Trial Subscription
2.1. The Parties are in the process of discussing their mutual interests in concluding a contract regarding the Customer’s use of the Service Provider Services in its business operations (the “SaaS Agreement”). For the sole purpose of allowing the Customer to determine its business interests in concluding such SaaS Agreement (“the Purpose”), the Customer shall be entitled to use the Services during a limited trial period as per Section 2.2 hereof.
2.2. Solely to the extent necessary for the Purpose, to allow the Customer to gain a more thorough understanding of the features and capabilities of the Services, the Service Provider hereby grants to the Customer a personal, restricted, temporary, revocable, non-exclusive, non-transferrable, non-assignable, without the right to sublicense, right to permit a maximum of one (1) Authorised User to use the Services and Documentation solely for the Customer’s internal business operations, for such limited period (“the Trial Period”) as specified in Section 3 hereof (“the Trial Subscription”).
The Customer acknowledges and agrees that it is not granted any software license pursuant to this Agreement, and that the Customer shall not be provided with a copy of the software underlying the Services pursuant to this Agreement. The Customer shall merely be entitled to access such software for the purpose of obtaining the Services. To this end, the Customer shall be provided with Access Credentials in respect of each of the Authorised Users. The Customer shall be responsible for identifying and authenticating all Authorised Users, for approving and revoking access to the Services by such Authorised Users, for controlling against unauthorised access to the Services, and for maintaining the confidentiality of the Access Credentials.
2.3. The Customer acknowledges and agrees that the Service Provider (and/or its licensors) shall at all times retain the (intellectual property rights) ownership in the Services, the Documentation, the underlying infrastructure, the software, and any databases created in performing the Services. This Agreement does not grant the Customer any title, interest or right, including any intellectual or industrial property rights, in or to any of the afore listed, except for the restricted user rights expressly set out in this Agreement.
2.4. The Service Provider may subcontract performance hereunder, in which case it shall remain responsible for such subcontracted Services. Notwithstanding the foregoing, any third-party Cloud/hosting services shall be subject to the applicable third-party provider terms and conditions as these may change over time. In the event of a conflict between such third-party terms and conditions and the Agreement, such third-party terms and conditions shall prevail as regards the activities subcontracted to such third-party provider.
3. Trial Period
3.1. The Trial Period, and thus also the Trial Subscription, shall be ten (10) days commencing on the date the Services are first made available to the Customer for use hereunder, and shall automatically terminate upon expiry of such period, unless the Trial Subscription is terminated early in accordance with this Agreement.
3.2. This Agreement, including the Trial Subscription, shall in any event promptly and automatically terminate in the event either Party indicates that it no longer wishes to discuss a potential SaaS Agreement as per Section 2.1 above.
3.3. The Service Provider shall be entitled to terminate the Agreement (or alternatively, at its option, suspend the Services), including the Trial Subscription, with immediate effect on giving written notice to the Customer in the event the Customer breaches the terms of this Agreement. The Service Provider may additionally suspend the Services upon becoming legally compelled to do so, or in the event of the security of the Services, of the Customer data, or of the Services infrastructure being compromised, or if the Service Provider reasonably determines that suspension of the Services is needed to protect the integrity of the Services, Customer data or Services infrastructure.
3.4. In the event of the expiration or termination of this Agreement on whatever ground, the Customer shall (procure that the Authorised Users) promptly cease all use of the Services and Documentation. In the event the Customer fails to cease use of the Services, the Service Provider may block the Customer’s access to the Services.
3.5. Rights and obligations under this Agreement that are expressly stipulated or which by their nature are intended to survive expiration or termination of this Agreement, shall survive and shall remain in effect after termination or expiration of this Agreement (including Sections, 3.5, 4, and 5 through 10).
4. Fees
The Trial Subscription is granted to the Customer free of charge, considering the Purpose.
5. Customer Undertakings
5.1. The Customer shall be responsible for the use of the Services by the Authorised Users. The Customer undertakes that it shall not (and shall procure that the Authorised Users shall not:
- attempt to obtain, or assist third parties in obtaining, access to the Services other than as expressly permitted hereunder;
- perform any Services benchmarks, or disclose the results of any such benchmark tests, without the Service Provider’s prior written consent;
- bypass or breach any security device or protection used for or contained in the Services;
- engage in any activity which interferes with or disrupts the Services;
- except to the extent such restriction is prohibited under applicable law:
- (attempt to) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services, the underlying software and/or Documentation (as applicable) in any form or media or by any means, save as may be expressly permitted hereunder; or
- (attempt to) reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the software underlying the Services (the foregoing prohibition includes review of data structures or similar materials produced by such software);
- (attempt to) access all or any part of the Services, the underlying software and Documentation for any purpose other than as expressly permitted herein, including (without limitation) in order to build a product or service which competes with such software, the Services and/or the Documentation (as determined by the Service Provider in its sole discretion); or
- license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except (to the Authorised Users) as expressly permitted hereunder.
If the Customer becomes aware of any breach of this Section 5, it shall promptly notify the Service Provider thereof.
5.2. The Customer shall not perform, or disclose any results of, security testing in respect of the Services or the underlying infrastructure or software (including network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing), except to the extent the Service Provider has provided its prior written authorisation for such performance or disclosure or to the extent required pursuant to a request by a regulatory authority (in which case, to the extent permitted under such request, the Customer shall notify the Service Provider of such request and the information to be shared, the Customer shall limit disclosure to what is strictly required for the purposes of such request, and shall use reasonable efforts to have confidential treatment accorded to such information). In the event the Service Provider has provided its consent, the Parties shall separately agree in writing on the conditions and modalities related to such performance or disclosure (as applicable).
5.3. The Customer shall not knowingly or by negligence introduce viruses into the Services (infrastructure) through its use of the Services. To this end, the Customer shall implement proven actions and precautions to prevent the introduction and proliferation of a virus into the Services (infrastructure). In the event a virus is found to have been so introduced, without limiting the Service Provider’s other rights and remedies, the Customer shall assist the Service Provider in reducing the effects of the virus and, if the virus causes a loss of operational efficiency or loss of data, to assist the Service Provider to mitigate and restore such losses.
5.4. In using the Services, the Customer may transmit and upload data to the Services infrastructure. The Customer acknowledges and agrees that, if the Customer uploads data, the Customer (rather than the Service Provider) shall control such data and the Customer shall have sole responsibility for the content, legality, reliability, integrity, accuracy and quality of those data, and for obtaining the necessary authorisations to use (and have the Service Provider use as per the terms of this Agreement) such data. The Service Provider shall only process such data to the extent required for the performance of the Services. The Customer hereby grants the Service Provider authorisation to view, store, copy and delete or otherwise process such data as part of the Service Provider’s performance of the Services, and the Customer irrevocably consents and agrees to the processing of such data by the Service Provider, to the extent the purpose of such processing is legitimate and limited to the provision of the Services. The Customer shall indemnify and hold the Service Provider harmless in respect of any third-party claim based on an (alleged) breach of the Customer’s undertakings as set out in this Article.
5.5. To the extent that the data as per clause 5.4. contain personal data, resulting in the processing of personal data by the Service Provider on behalf of the Customer pursuant to this Agreement (‘personal data’ and ‘processing’ as defined in the General Data Protection Regulation (Regulation (EU) 2016/679), such processing shall be subject to the terms of the Data Processing Agreement available at https://insidegroupbe.wpcomstaging.com/data-processing-agreement/ (Data Processing Agreement), which the Customer hereby agrees to. The Customer acknowledges and agrees that, except as strictly required for the Customer to be able to use the Services and for the Service Provider to be able to perform the Services hereunder, the Service Provider does not wish to receive any personal data (whether related to the Customer, its customers, the Authorised Users, or otherwise) pursuant to this Agreement. If the Customer provides the Service Provider with personal data in excess of what is stipulated above, the Service Provider cannot be held liable towards the Customer in the event of a breach of any data protection, information security or confidentiality obligations under the Agreement in respect of such excess data.
6. Confidential Information
6.1. The Customer acknowledges and agrees that it may receive trade secrets, competitively sensitive information and other confidential and/or proprietary information of the Service Provider and its affiliates pursuant to this Agreement, including information concerning the Service Provider’s and its affiliates’ products and services (including the Services, underlying software and Documentation), intellectual property, customers, business, financial information, roadmaps, competitively sensitive information, or other dealings, transactions or affairs. All such information which is either marked “confidential” (or a similar designation), or which should reasonably be considered confidential given its nature or the circumstances surrounding its disclosure (regardless of whether or not such information is expressly designated as proprietary or confidential or a similar designation) constitutes “Confidential Information” of the Service Provider. The Customer agrees not to use the Confidential Information except for the purposes of this Agreement, and to disclose Service Provider Confidential Information solely to the extent necessary for the purposes of this Agreement and then only to those of its employees that have a demonstrable legitimate need to know such information for the purposes of this Agreement and that have committed in writing to adequate confidentiality undertakings prior to being granted access to the Confidential Information. Any other use or disclosure shall require the Service Provider’s prior written consent. The Customer shall be liable towards the Service Provider for any breach of these confidentiality undertakings by its employees or any third parties acting under its control or on its behalf.
6.2. The obligations of confidentiality set out herein shall survive the termination of this Agreement.
7. Limitation of Liability
7.1. To the maximum extent permitted under applicable law, the Service Provider excludes its liability for special, incidental, consequential, indirect, direct, and other damage arising from this Agreement (including under the afore referenced Data Processing Agreement), for loss of profits or revenue, loss of anticipated savings, opportunity loss, loss of goodwill, loss of use of the Services, loss or corruption of data, costs of recreating lost or corrupted data, the cost of having to procure replacement goods or services, and other economic loss and reputational damage.
8. Warranty disclaimer
8.1. The Service Provider does not make any warranty or representation in relation to the Services, the Documentation and the user rights granted hereunder. The Customer acknowledges and agrees that the Services and Documentation are provided “as is”, without any maintenance, debugging, support or improvement obligation on the part of the Service Provider except as set out in Article 8.3. below. The Service Provider does not make any representations or warranties, either express or implied, and disclaims all express or implied representations and warranties, including without limitation any implied warranties of merchantability, fitness for a particular purpose, or non-infringement. The Service Provider does not warrant that the Services will be uninterrupted or error-free.
8.2. The Customer shall be responsible for adequately protecting and backing up its data and equipment used in connection with the Services.
8.3. The Service Provider shall provide the Customer with such limited support as reasonably determined by the Service Provider, and any such support shall not be subject to any commitment or service levels on the part of the Service Provider. Additional support, if reasonably requested by the Customer, can be made available at a charge.
9. Assignment
9.1. The Customer may not transfer, assign, delegate, or sublicense this Agreement whether in whole or in part, without the prior written consent of the Service Provider.
10. Miscellaneous
10.1. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof.
10.2. The Service Provider shall be entitled to modify the terms and conditions of this Agreement (including its annexes and the documents referenced herein) at any time, at its discretion, which modifications shall be communicated to the Customer (web notification shall suffice). The Customer acknowledges and agrees that its continued use of the Services shall be subject to its acceptance of such modified Agreement as set forth herein.
10.3. A failure by the Service Provider to exercise any right or remedy hereunder shall not constitute a waiver of such right or remedy or of future enforcement thereof.
10.4. The Service Provider may freely use any Feedback without attribution or the need for the Service Provider (or any third party) to pay the Customer or any third party any royalties or other fees of any kind, whereby “Feedback” means any suggestions or recommendations for improvement of, or modifications to, the Services made by or on behalf of the Customer.
10.5. If any provision of this Agreement is held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the remaining provisions of this Agreement, which shall remain in full force and effect.
10.6. The Agreement shall be exclusively governed by the laws of Service Provider’s country/state of incorporation, and the Parties submit to the exclusive jurisdiction of the courts of Service Provider’s city/state of incorporation.