This Terms of Service agreement (the “Agreement”) governs the terms and conditions under which use of the software, the website or any application operated by Xdroid International N.V.(collectively or individually the “Service”) is granted and is an agreement entered into by and between:

Xdroid International N.V. („XDROID, “us”, “we”, “our”) and the entity accepting this agreement  („Customer” or “you”).

BY CREATING AN ACCOUNT, CLICKING ‘I AGREE’, ACCESSING OR USING THE SERVICES, THE CUSTOMER ACKNOWLEDGES TO HAVE READ THE AGREEMENT AND AGREES TO BE BOUND BY THE TERMS OF THE AGREEMENT INCLUDING ALL TERMS INCORPORATED BY REFERENCE.

1. Definitions

In this Agreement the following words and expressions shall have the following meaning:

1.1. “Affiliate” shall mean in relation to any party, any company or other legal entity, that is controlled by, controls or is under the common control with such party. “Control(led)” is the ability to determine the management policies of an entity through equity ownership of a majority of interests of suc h entity.;

1.2. “Confidential Information” shall have the meaning set forth in Section 16 of this Agreement;

1.3. “Documentation” shall mean all related user documentation and manuals, in whatever medium, regarding the proper use of the Service;

1.4. ”Effective Date” means the day and year on which Customer pays for the Service;

1.5. “Service” shall mean the computer software, infrastructure  together with the Documentation provided by Xdroid;

1.6. “Subscription Plan” Subscription Plan shall mean the specific plan corresponding with the specific package of the Service, the Customer, as detailed on the Xdroid Website, which entitles the Customer to continuous access for a specified Subscription Term in exchange for the payment of recurring Subscription Fees. Xdroid reserves the right to change the Subscription Plan;

1.7. “Subscription Fee” shall mean the recurring fee paid by the Customer in exchange for the continued right to access and use the Service, updates, or support as specified in this Agreement together with the appropriate Documentation;

1.8. “Subscription Period” means the initial subscription period and all Renewal Subscription Periods;

1.9. “Renewal Subscription Period(s)” means each subsequent period after the Initial Subscription Period. Each renewal subscription period shall commence on the anniversary date of commencement of the Initial period;

1.10. “Initial Subscription Period” refers to the minimum duration for the initial subscription. The Initial Subscription Period shall begin on the earliest date the Service was ordered and paid for; 

1.11. “Term” shall have the meaning set forth in Section 17 of this Agreement; 

1.12. “Upgrade” shall mean the release of a version of the Service containing major changes to the structure of the Service where important new features may be added. The change to an Upgrade will be recognized by an increase in value of the primary version number (e.g. version 3.x to be replaced by version 4.x);

1.13. “Update” shall mean the release of a version of the Service containing improvements and adjustments to the Service, however not including major structural changes and/or new important features. The change to an Update will be recognized by an increase in value of the secondary version number (e.g. version 3.0 to be replaced by version 3.1);

1.14. “Intellectual Property Rights” means any and all domestic and foreign intellectual property rights, including: (a) inventions, patents, applications for patents and reissues, divisions, continuations, re-examinations, renewals, extensions and continuations-in-part of patents or patent applications; (b) copyrights, copyright registrations and applications for copyright registration; (c) mask works, mask work registrations and applications for mask work registrations; (d) trade names, business names, corporate names, domain names, website names and world wide web addresses, common law trade-marks, trade-mark registrations, trade-mark applications, trade dress and logos, and the goodwill associated with any of the foregoing; and (e) trade secrets, confidential information and know-how.

2. Terms

Subject to and conditioned upon Customer’s payment of the Subscription Fee to XDROID, and in accordance with the conditions set forth in both this Agreement and any other relevant policies, XDROID grants to the Customer use of the Service. Access to the Service is granted under the terms of this Agreement and is further defined by the specifics outlined in your Subscription Plan, including any limits for source data volume, in object code or other machine-executable format and the Documentation during the Term and according to the terms and conditions set out herein.

XDROID has the right to increase the Subscription Fee.

Customer is prohibited to copy the Service, LCustomer may not and will not permit any third party to: (i) lend, publish, rent, lease, sell, sublicense, assign, transfer, or otherwise make available to any third party not authorized within this Agreement the Service in any manner, including, but not limited to, access to the Service on the internet or any timesharing, service bureau, software as a service, cloud, or similar technology or service, (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction and provided that Customer has first requested XDROID the tools necessary to create interoperable programs), or create derivative works based on the Service, (iii) copy the Service (except as specified herein), (v) remove any proprietary notices or labels on the Service, (vi) separate, remove or replace any components of the Licensed Software provided by third parties (the “Component Software”); or (vii) use any Component Software independently of the Service; or use the Service without the Component Software.

3. Xdroid’s General Obligations

Documentation. The Documentation shall be the most recent version distributed by Xdroid in the English language in the form of document files. Customer acknowledges that the Documentation is protected by copyright and may be reproduced or translated only as permitted in this Agreement. Any translations and copies of Documentation are derivative works and are owned by Xdroid.

4. Subscription

4.1. Subject to the payment of the Fees XDROID provides access to the Service onServiceon a subscription basis in accordance with your chosen Subscription Plan..

4.2. Use of the Service on a subscription basis is conditioned upon acceptance of the following recurring Subscription Periods and conditions (the “Subscription”): 

(i) Access to the Service through up-front payment of the Subscription Fee is being provided as a recurring subscription service for a specific period of time as stated in the Plan (e.g. 1-month)”; 

(ii) Customer shall purchase the Subscription for a minimum of one (1) month as from the Effective Date;

(iii) Customer agrees that, upon expiration of the Subscription Period, Customer shall be re-invoiced and its Subscription shall be renewed for the same Subscription Period, unless Customer cancels the Subscription through the online portal. Customer agrees that there is no money-back guarantee or refund available after said re-invoicing or invoicing has occurred. If Customer cancels the services before the end of your current paid up month, your cancellation will take effect immediately.

However, the Xdroid applications will remain functional through the end of your current monthly billing period.

5. Registration and Ordering

5.1. Registration. By accepting these terms, the customer acknowledges and agrees to register itself in accordance with the then current registration process…

5.2. Ordering. Customer shall order by selecting their chosen Subscription plan through the Xdroid Portal.

6. Payment and Taxes

6.1. Payment. Customers’ credit card will be charged for access to the Service in advance on a recurring monthly or yearly basis depending on which Subscription Plan you have selected. Xdroid reserves the right to vary pricing. We may employ the use of third party services for the purpose of facilitating payment and the completion of Purchases. By submitting your information, you grant us the right to provide the information to these third parties subject to our Privacy Policy.

6.2. Change in Subscription Plan. For any change in plan level, your credit card will automatically be charged the new rate on your next billing cycle. Your plan and access fees will be adjusted automatically based upon data thresholds as set forth in the plan pricing. Downgrading your services may cause you to lose access to certain content or features of your account or the services. Xdroid does not accept any liability for such loss.

6.3. Information. If you wish to purchase the Service made available by Xdroid (“Purchase”), you may be asked to supply certain information relevant to your Purchase including but not limited to, your credit or debit card number, the expiration date of your card, your billing address, and your shipping information. You represent and warrant that: (i) you have the legal right to use any card(s) or other payment method(s) in connection with any Purchase; and that (ii) the information you supply to us is true, correct and complete.

6.4. Currency. All amounts payable under the Agreement shall be in Euro’s (EUR).

6.5. Invoices. XDROID shall invoice the Customer in respect of the Subscription Fees and any other fees related to XDROID Services.

6.6. Taxes. All payments due hereunder are inclusive of all sales taxes, use taxes, value added taxes . In the event that any withholding taxes or any other similar taxes are imposed by any federal, state, provincial or local governmental entity on the transactions contemplated by this Agreement, Customer shall pay such taxes in such amounts as are necessary to ensure that XDROID receives the full amount of the then due fees.

6.7. Late fees. Late undisputed payments shall accrue interest at the rate of twelve percent (12%) annually or the maximum permitted by applicable law, whichever one is less, and Customer shall reimburse Xdroid for all costs of collection incurred.

6.8. Xdroid has the right to increase Subscription Fees. Prices of all services, including but not limited to monthly subscription plan fees for services, are subject to change upon 30 days notice from Xdroid. Such notice may be provided at any time by posting the changes to the website (www.xdroidinsights.com) or such other method as chosen by Xdroid and/or via a software application we offer.

6.9. All fees, of whichever kind, are up-front and non-refundable.

7. Limited Warranty

7.1. XDROID is the owner or licensee of all Intellectual Property Rights in and to the Service and there is no pending litigation against XDROID which could materially impact upon its ability to perform its obligations under this Agreement.

7.2. XDROID shall have no obligation or other liability with regard to any error or noncompliance with the warranties set forth above that is caused, in whole or in part by; (a) modifications or alterations to the Service made by the Customer; (b) use of the Service by the Customer other than as contemplated herein; (c) products or services not provided by XDROID; (d) the negligence or misconduct of Customer; (e) electrical malfunction. XDROID shall have no liability to the Customer under this Agreement, or otherwise, by reason of content supplied by the Customer, content owners, end users or other third parties.

7.3. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED IN THIS SECTION, THE SOFTWARE DOCUMENTATION, AND SUPPORT ARE PROVIDED “AS IS” AND WE DO NOT MAKE, AND HEREBY DISCLAIM ON BEHALF OF XDROID,AND ITS AFFILIATES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY, TIMELINESS, COMPLETENESS OR ACCURACY. WITHOUT LIMITING THE FOREGOING, XDROID, DO NOT WARRANT THAT USE OF THE CLOUD SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL DEFECTS WILL BE CORRECTED. TO THE EXTENT THAT A WARRANTY CANNOT BE DISCLAIMED AS A MATTER OF LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER APPLICABLE LAW.

7.4. The Customer assumes all responsibility and risk for use of the Service and acknowledges that the Service may not meet all the Customers’ expectations or requirements.

8. Indemnification

8.1. XDROID’s indemnification. XDROID agrees to indemnify and hold harmless the Customer from and against any and all third party claims or actions, including any losses, costs, liabilities, reasonable attorney’s fees and other expenses arising from such claim or action, alleging that the software used in relation to the Service infringes or violates any copyright, trademark, patent or trade secret of a third party, provided: (i) the Customer promptly gives written notice of any claim to XDROID; (ii) the Customer provides any assistance which XDROID may reasonably request for the defense of the claim; and (iii) XDROID has the right to control or the defense or settlement of the claim. In any action based on an infringement claim, XDROID may, at its sole option, either: (i) obtain for Customer the right to continue using the Service, (ii) replace or modify the Service with non-infringing software providing substantially the same functionality, or (iii) terminate the Service and give Customer a pro-rata refund of the Subscription fee paid for the Service, calculated on the basis of straight line depreciation over three years and provide a full indemnity in relation to any damages.

8.2. Customer’s Indemnification. Customer will defend XDROID, and its Affiliates from and against any claims: (i) arising from your use of the Service. Your indemnification includes, without limitation, all claims related to the posting or removal of content, user content, or entries to or from the site.: (ii) alleging that Customer’s content, Customer Data, methods or processes of doing or conducting business infringes or misappropriates a third party’s Intellectual Property Rights, (iii) arising from Customer’s noncompliance with Section 2, or (iiii) arising under Section 10.4 , and will indemnify XDROID and its Affiliates from any damages finally awarded with respect to such claims.

8.3. Indemnification Procedures. A party entitled to indemnification (“Indemnified Party”) will promptly notify the other party (“Indemnifying Party”) in writing of any claim and provide reasonable assistance to the Indemnifying Party with respect to handling such claim, at the Indemnifying Party’s expense. Failure to provide timely notice or reasonable assistance will relieve the Indemnifying Party of its indemnification obligations to the extent that the Indemnifying Party has been materially prejudiced thereby. The Indemnifying Party has the right, at its sole discretion, to defend and settle any claim, except that the Indemnifying Party may not agree to any settlement that does not unconditionally release the Indemnified Party without the Indemnified Party’s prior written consent. The Indemnified Party will be entitled to participate in the defense of any such claim using counsel of its choice, at its own expense.

9. Limitation of Liability

9.1. IN NO EVENT SHALL XDROID BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, WHICH MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER EITHER PARTY HAS BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, OR WHETHER CLAIMS ARE BASED OR REMEDIES ARE SOUGHT IN CONTRACT OR TORT OR OTHERWISE.

9.2. EXCEPT AS SET FORTH IN SECTION 11.1 AND IN NO EVENT SHALL XDROID’S TOTAL CUMULATIVE LIABILITY FOR ANY DAMAGES TO CUSTOMER OR ANY OTHER ENTITY EVER EXCEED THE AGGREGATED FEES PAID UNDER THE ONGOING SUBSCRIPTION PERIOD AS DEFINED IN THE THEN CURRENT SUBSCRIPTION PLAN BY THE CUSTOMER TO XDROID.

9.3. This limitation of liability shall apply to the maximum extent permitted by law.

10. Customer’s Representations and Warranties

The terms outlined in this section are in addition to and shall be read in conjunction with 7.3. Customer represents and warrants that it has the right to enter into this Agreement, that Customer is a corporation duly organized and existing (and in good standing) under the laws of the country or state of its incorporation and has the power and authority (corporate or otherwise) to execute and deliver this Agreement.

11. Title

Title, ownership rights, and any and all Intellectual Property Rights in and related to the Service shall remain in XDROID, its licensors, suppliers and representatives. The Service is protected by copyright laws and international copyright treaties. Title, ownership rights, and intellectual property rights in and to the content accessed through the Service is the property of the applicable content owner and may be protected by applicable copyright or other law. This Agreement gives Customer no rights to such content. Except as expressly provided herein, all right, title and interest in and to the Service remains with XDROID and its licensors, suppliers and representatives.

12. Confidential Information

For the purposes of this Agreement, “Confidential Information” means any information disclosed or made available by or on behalf of a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether before or after the Effective Date, in any form (written, oral, electronic, visual or otherwise), that is not publicly available and that relates to the Disclosing Party’s business, technology, or operations, including without limitation:

(a) pricing, commercial terms, proposals, and business plans;
(b) customer and supplier information;
(c) financial, marketing, and strategic information;
(d) trade secrets and proprietary know-how;
(e) technical information, including software, APIs, system architecture, models, algorithms, machine learning models, training methodologies, analytics methodologies, scoring logic, documentation, product roadmaps, designs, specifications, and improvements;
(f) non-public performance information, security information, and technical documentation relating to the Service; and
(g) the existence and terms of this Agreement.

Confidential Information includes information disclosed prior to the Effective Date and any analyses, compilations, reports, transcripts, summaries, or materials derived from or incorporating such information.

Notwithstanding the foregoing, Confidential Information does not include information that the Receiving Party can demonstrate through contemporaneous written records:

(i) was lawfully in its possession without restriction prior to disclosure;
(ii) becomes publicly available through no breach of this Agreement;
(iii) is lawfully received from a third party without breach of any obligation of confidentiality; or
(iv) is expressly approved in writing by the Disclosing Party for release.

Independent development shall only apply where the Receiving Party can demonstrate that such development occurred without access to or use of the Confidential Information.

The Receiving Party shall:

(a) use Confidential Information solely for the purposes of performing or receiving the Service under this Agreement;
(b) not disclose Confidential Information to any third party except to employees, affiliates, and professional advisers who have a strict need to know and are bound by confidentiality obligations at least as protective as those set forth herein;
(c) protect Confidential Information using at least the same degree of care it uses to protect its own confidential information of a similar nature, and in no event less than reasonable care; and
(d) not, and shall not permit any third party to, analyze, decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, underlying structure, algorithms, models, or methodologies of any Confidential Information disclosed in connection with the Service, except to the limited extent such restriction is expressly prohibited by applicable mandatory law.

13. Term and Termination

13.1. Term: This Agreement shall take effect on the Effective Date and shall continue in force for two (1) years (the “Initial Term”). Thereafter it will be automatically renewed for one (1) year renewal terms (“Renewal Term”).

13.2. Termination: Customer bears the sole responsibility for properly cancelling their Subscription. An email or phone request to cancel their account shall not be considered cancellation of the account or termination of the terms of this Agreement. Customer can cancel their account at any time by logging into their account, clicking on account name, then plans, and then selecting the cancel button.

Xdroid, at its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the services, or any other Xdroid services, for any reason at any time. Such termination of services will result in the deactivation or deletion of your account with no refund, or your access to your account, and the forfeiture and relinquishment of all user content in your account. Xdroid reserves the right to refuse to provide any of the services to anyone for any reason at any time.

14. Force Majeur

Except for the payment obligations, neither party shall be liable to the other(s) for any delay or non-performance of its obligations hereunder in the event and to the extent that such delay or non-performance is due to an event of Force Majeure.

Events of Force Majeure are events beyond the control of the party which occur after the time of signing of this Agreement and which were not reasonably foreseeable at the time of signature of this Agreement and whose effects are not capable of being overcome without unreasonable expense or loss of time to the party concerned. Events of Force Majeure shall include (without being limited to) war, acts of government, natural disasters, fire and explosions.

15. Independent Contractors

Nothing in this Agreement shall create, evidence or imply any agency, partnership or joint venture between the parties. Neither party shall act or describe itself as the agent of the other nor shall it represent that it has any authority to make commitments on the other’s behalf.

16. Severability

If any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable then the remaining provisions of this Agreement shall continue in full force and effect. The judicial or other competent authority making such determination shall have the power to limit, construe or reduce the duration, scope, activity and/or area of such provision, and/or delete specific words or phrases as necessary to render such provision enforceable.

17. Assignment

Customer may assign the Agreement to any successor of the Customer, provided however, that the successor is not a competitor of the business and affairs of Xdroid and its suppliers. After such an assignment, Customer and the assignee shall be jointly and severally liable for all obligations under this Agreement.

XDROID may freely assign, or otherwise transfer all or any of its obligations or performance under this Agreement without Customer’s consent.

18. Acknowledgement

BY USING SERVICE OR OTHER SERVICES PROVIDED BY US, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS OF SERVICE AND AGREE TO BE BOUND BY THEM.

19. Notices

Except as may be otherwise provided herein, all notices, requests, demands, waivers and other communications made pursuant to this Agreement shall be in writing and shall be conclusively deemed to have been duly given upon receipt: (i) if delivered by hand or (ii) if delivered by DHL or similar internationally recognized overnight courier or (iii) if delivered by certified mail return receipt requested.

Notices are to be sent to XDROID, to the address as stated on top of the Agreement Attn. Legal Department. Notices to the Customer are to be sent to the address set out in the Order Form.

20. Choice of Laws and Forum

This Agreement, its interpretation, performance or any breach thereof, will be construed in accordance with, and all questions with respect thereto will be determined by, the laws of Belgium. All parties hereby irrevocably submit any disputes under this Agreement to the jurisdiction of the courts located in Antwerp, Belgium.

21. Survival

All terms of this Agreement that by their nature extend beyond its termination remain in effect until fulfilled, and apply to respective successors and assigns.