Effective Date: 27/11/2019
X42 may update these Terms from time to time. The most current version of these Terms will be posted on the Site. When changes are made, X42 will make a new copy of the Terms available at the Site and any new Supplemental Terms will be made available from within, or through, the affected Service on the Site. Any changes to the Terms will be effective upon its posting on the Site, or within or through the affected Service on the Site, as applicable. If User does not agree to any change(s), User shall notify X42 in order to arrive at a mutual solution through negotiation. If no agreement is reached, User shall stop using the Services. Otherwise, User’s continued use of the Service constitutes User’s acceptance of such change(s).
When used in these Terms with the initial letters capitalized, in addition to terms defined elsewhere in these Terms, the following terms shall have the following meanings:
Affiliates means any and all entities wherever incorporated which is a parent company, a subsidiary and/or an associated company.
X42 means X42 SPRL with registered offices situated 100 Emile Banning Street, 1050 Brussels, Belgium.
Confidential Information means all information disclosed by User to X42 or by X42 to User which is in tangible form and labelled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these Terms; or (d) was or is independently developed by the receiving party without use of the disclosing party’s Confidential Information.
Data means all electronic data, text, messages or other materials submitted to X42 by User.
Deliverables means the Service and/or work product and/or deliverables produced under these Terms and/or any Statement of Work.
Documentation means any written or electronic documentation, images, video, text or sounds specifying made available by X42 to User.
Personal Data means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
Processing means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;
Released Parties means X42, and its officers, directors, shareholders, employees, agents, and successors.
Service(s) means any and all services provided by X42 to User including but not limited to the use and access to the Site. Any new or modified features added to the Service are also subject to these Terms.
Site means any and all websites operated or owned by X42 including namely but not exclusively https://www.blackendz.com/.
Software means any and all software(s) owned or created by X42.
Statement of Work shall mean any written document executed by the Parties referencing these terms which may include descriptions of the scope of the Service, the work product, the retainer, the fees, and/or the Deliverables.
Third Party Services means third party products, applications, services, software, products, networks, systems, directories, websites, databases and information which the User uses in connection with the Service.
User means any individual or entity using the Services.
2.1 X42 shall provide the Services to User as defined in the Statement of Work executed by the parties referencing these Terms. Any change in the scope of Services as set forth in the Statement of Work shall be agreed upon in writing by the parties. X42 shall have no obligation to perform Services in connection with any such change until the parties have agreed upon the effect of such change on X42’s fees and/or schedule of performance.
2.2 If the Services are performed at User’s place of business, User shall provide at no charge: (a) appropriate computer hardware, software and communications resources; (b) system and user documentation; (c) office space; (d) telephone service; (e) copying, facsimile and postage facilities; and (f) other general office supplies and professional support to X42 as necessary to perform the Services.
2.3 User agrees that X42’s performance is contingent upon User’s timely and effective performance of its responsibilities, decisions and approvals. X42 may rely on all decisions and approvals of User.
2.4 If an Internet connection is required for proper transmission of the Service, User is responsible for procuring and maintaining the network connections that connect the network to the Service, including, but not limited to, “browser” software that supports protocols used by X42, including Secure Socket Layer (SSL) protocol or other protocols accepted by X42. X42 is not responsible for any modification or compromise of data, including User’s Data, caused by the transmission across computer networks or telecommunications facilities which are not owned, operated or controlled by X42. X42 assumes no responsibility for the reliability or performance of any connections described in this section.
2.5 Unless expressly authorized in writing by X42, User agrees not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party; (b) use the Service to process data on behalf of any third party; (c) modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (d) falsely imply any association or partnership with X42; (e) use the Service in any unlawful manner, including but not limited to violation of any person’s privacy rights; (f) use the Service to send unsolicited or unauthorized junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights and any privacy rights; (h) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of the Software, the Site or the Service; (j) use the Service to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libellous, obscene, or discriminatory; (k) use the Service to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); (l) try to use, or use the Service in violation of these Terms; (m) obtain or attempt to obtain any materials, documents or information, including namely but not exclusively personal identification, password and other information of any other User through any means not purposely made available through the Service; (n) probe, scan, or test the vulnerability of any system or network of X42 or breach any security or authentication measures, avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by X42 to protect the Service, Site or Software or (o) impersonate any other individual or entity.
2.6 User is responsible for compliance with the provisions of these Terms and for User’s Data. Without limiting the foregoing, User is solely responsible for ensuring that its use of the Service, User Data and any transfer or processing of User Data are compliant with all applicable laws and regulations including namely but not exclusively all applicable privacy laws and regulations. User is solely responsible for ensuring that the transmission, collection and use of User’s Data does not to infringe any third party’s intellectual property and privacy rights. User also maintains all responsibility for determining whether the Service or the information generated thereby is accurate or sufficient for its purposes.
2.7 X42 reserves the right to temporarily suspend the use of the Service: (a) during planned downtime for upgrades and maintenance; or (b) during any unavailability of the Service caused by Force Majeure events or circumstances.
3. INVOICES AND PAYMENT
3.1 X42 shall have no obligation to commence the Services until the retainer Amount is paid (“Retainer”). Upon payment of the Retainer as specified in the Statement of Work, X42 shall have the right to invoice User for the Services rendered and X42’s expenses in connection with said Services, on a monthly basis and/or upon acceptance of the Deliverables, at X42’s discretion.
3.2 User shall pay X42’s invoices within fifteen (15) days after delivery thereof. Any amount remaining unpaid after fifteen (15) days shall accrue interest at a rate equal to the lesser of: (a) one percent (1%) per month; or (b) the highest rate allowed by law.
3.3 Invoices submitted by X42 to User are deemed accepted and approved unless disputed by User within ten (10) business days of User’s receipt of the invoice.
3.4 In the event User disputes a portion of an invoice, User agrees to fully pay the undisputed portion and X42’s acceptance of such partial payment shall not waive any of its rights as to the remaining balances nor in any way constitute accord and satisfaction.
3.5 X42 shall have the option to apply any or all of the Retainer to any amounts due from User and shall return to User, promptly upon the completion of the Services specified under the applicable Statement of Work, any unused portion of the Retainer.
3.6 Except value-added taxes and unless otherwise provided by X42 in writing, charges do not include any taxes, levies, duties or similar governmental assessments, assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). User is responsible for paying Taxes except those assessable against X42 based on its income. X42 will invoice User for such Taxes if X42 has or believes it has a legal obligation to do so and User agrees to pay such Taxes if so invoiced.
3.7 If User pays by bank transfer, only the final amount received by X42 excluding any and all banking charges or other associated fees shall be deemed as payment.
3.8 X42 shall be reimbursed for the actual out-of-pocket expenses of its personnel and other expenses incurred in performance of the Services. X42 personnel traveling out-of-town shall be reimbursed for coach class airfare, auto rental, lodging and reasonable and actual meal expenses. X42 personnel shall be reimbursed for mileage in excess of the commute to the personnel’s local office.
4.1 User shall have five (5) business days after receipt of any Deliverable (or portion of Deliverable, if such Deliverable is to be delivered in milestones as set forth in the applicable Statement of Work) to test and review such Deliverable (“Acceptance Period”). If a Deliverable does not materially comply with the specifications for such Deliverable (“Specifications”), User may reject such Deliverable by written notice of rejection to X42. Such notice will specify in detail the reasons the Deliverable fails to meet the relevant Specifications. X42 will use commercially reasonable efforts to correct any material deficiencies and provide User with a revised Deliverable as soon as practicable. User will have the right to accept or reject the corrected Deliverable in accordance with this section. If X42 does not correct a material deficiency, either party may elect to terminate these Terms or the applicable Statement of Work in which event User’s sole and exclusive remedy shall be to receive a refund of the fees paid to X42 for the non-conforming Deliverable.
4.2 If User does not accept or reject a Deliverable within the Acceptance Period, such Deliverable will be deemed to be accepted by User.
4.3 Acceptance by User shall not be unreasonably withheld.
5.1 X42 and its licensors, as applicable, shall own all right, title and interest in and to the following:
(i) all original components of the Deliverables created or developed by or on behalf of X42 pursuant to its performance of the Services; (ii) all works, inventions, technology, data, information and other material incorporated or used in connection with the Deliverables, or otherwise owned, used or possessed by X42; (iii) all inventions, discoveries, ideas, concepts, know-how, and techniques and other work product, Site or Software developed or created by or on behalf of X42 pursuant to its performance of the Services (collectively “X42 Materials”); and
(iv) all derivatives, modifications, translations, improvements, enhancements or extensions of the X42 Materials.
5.2 The trademarks including the Software or the Documentation are trademarks owned by X42 (collectively, “X42 Trademarks”). Unless otherwise provided by applicable laws or regulations, X42 Trademarks may not be used in any manner other than expressly authorized in a written agreement.
5.3 X42 shall maintain all rights, title and interest in and to X42 patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to User to use the X42 Materials under these Terms do not convey any additional rights in the Service, the X42 Materials or in any Intellectual Property Rights. X42 shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback X42 receives from User. X42 reserves all rights not expressly granted to User.
5.6 User shall retain all right, title and interest in and to the following (collectively the “User Materials”): all materials and data which the User can prove the User provided to X42 under these Terms, whether such materials are to be treated as Confidential or not. User Materials shall not include any data which (a) was already known to X42 at the time of disclosure; (b) was or is obtained by X42 by a third party not known by X42 to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these Terms.
6. DATA PRIVACY AND SECURITY; CONFIDENTIALITY
6.1 Subject to the express permissions of these Terms, User and X42 will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, X42 and User may use the other party’s Confidential Information solely to exercise their respective rights and perform their respective obligations under these Terms and shall disclose such Confidential Information solely to those of their respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information.
6.2 X42 will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of User’s Confidential Information.
6.3 X42 may collect certain Personal Data about the Users’ officers, directors, employees, agents, shareholders, trustees, servants and representatives which may include names, phone numbers, postal and email addresses. X42 uses this information to provide the Services. User agrees to provide all relevant notices and obtain any consent required to share the information with X42 and such notices and consents must sufficiently inform data subjects of the purposes for which personal information is collected. X42 will use, modify, collect and store Personal Data within the meaning of applicable data protection laws and regulations.
6.4 Unless agreed otherwise in writing, X42 shall not process Personal Data on behalf of User. If X42 processes Personal Data, as processor, on behalf of User, the controller, X42 and User shall sign a Data Processing Agreement which will form part of these Terms by this reference.
6.5 User represents and warrants that in any cases, it complies with all applicable data protection laws and regulations. In this respect when acting as controller, User shall ensure that all Personal Data was collected in accordance with the applicable data protection laws and regulations on valid legal grounds, all the necessary Personal Data information communications related to transparency have been made to the data subject, in particular regarding the existence of international transfers and the sharing of Personal Data, as well as the necessary consents for conducting direct marketing or other data processing activities validly obtained.
7. THIRD PARTY SERVICES
7.1 User agrees that X42 and the service providers X42 uses to assist in providing the Service to User shall have the right to access and to use, modify, reproduce, distribute, display and disclose User Data solely to the extent necessary to provide the Service.
7.2 If User decides to access and/or use Third Party Services, User expressly agrees that its access and/or use of such Third Party Services is governed by the terms and conditions of such Third Party Services, and X42 does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Third Party Services, including, without limitation, the accuracy, completeness or authenticity of the information contained or the manner in which the service providers of such Third Party Services handle data, including User Data, or any interaction between User and said third party.
7.3 User irrevocably waives any claim against X42 with respect to such Third Party Services. X42 is not liable for any damage or loss caused or alleged to be caused by or in connection with User enablement, access or use of any such Third Party Services, or User’s reliance on the privacy practices, data security processes or other policies of such Third Party Services.
7.4 The Service may contain features and functionalities that may provide User with access to third party content which is completely independent of X42, including websites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet in general. User’s interactions with organizations or individuals found on or through the Service are solely between User and such organizations or individuals. User agrees that X42 is not responsible or liable for any loss or damage of any kind or nature incurred as the result of any such dealings.
7.5 If there is a dispute between Users, or between Users and any third party, User understands and agrees that X42 is under no obligation to become involved.
8.2 Without prejudice to any rights X42 may have under these Terms, User’s license to use X42 Materials shall terminate immediately if User attempts to circumvent any technical protection measures used in connection with the Service or if User uses the Service in breach of these Terms.
8.3 These Terms and/or any Statement of Work may be terminated by X42 at any time, with or without cause, in the absolute and sole discretion of X42, upon thirty (30) days’ written notice of termination to the User.
9. WARRANTY DISCLAIMER
9.1 TO THE FULLEST EXTENT PERMITTED BY LAW, USER AGREES THAT USE OF THE SERVICE IS ENTIRELY AT USER’S OWN RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. X42 PROVIDES THE SERVICE WITHOUT ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
9.2 TO THE FULLEST EXTENT PERMITTED BY LAW, THE RELEASED PARTIES DISCLAIMS ANY WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY, AND PERFORMANCE OF THE SERVICE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE RELEASED PARTIES DISCLAIM ANY WARRANTIES FOR THIRD PARTY SERVICES OR GOODS RECEIVED THROUGH THE SERVICE OR ANY LINKS ON THE SERVICE.
9.3 TO THE FULLEST EXTENT PERMITTED BY LAW, THE RELEASED PARTIES DISCLAIM ANY WARRANTIES FOR VIRUSES OR OTHER HARMFUL COMPONENTS IN CONNECTION WITH THE SERVICE.
9.4 THE RELEASED PARTIES WILL HAVE NO LIABILITY FOR NAMELY BUT NOT EXCLUSIVELY: (a) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (b) ANY UNAUTHORIZED ACCESS TO OR USE OF X42 SERVERS OR OF ANY PERSONAL OR FINANCIAL INFORMATION; (c) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SERVICE; (d) ANY COMPUTER VIRUSES OR MALICIOUS CODE THAT MAY BE TRANSMITTED ON OR THROUGH THE SERVICE; OR (e) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY FUNCTIONALITY OR CONTENT POSTED, E-MAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE SERVICE.
10. LIMITATION OF LIABILITY
10.1 UNDER NO CIRCUMSTANCES SHALL THE RELEASED PARTIES BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF X42 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM ANY ASPECT OF USER’S USE OF THE SERVICE. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED ARISING OUT OF OR IN CONNECTION WITH THIRD PARTY SERVICES, AND WITH RESPECT TO DAMAGES IN CONNECTION WITH INFORMATION RECEIVED THROUGH THE SERVICE.
10.2 IN NO EVENT SHALL X42’S ENTIRE LIABILITY TO USER UNDER THESE TERMS EXCEED THE AMOUNTS ACTUALLY PAID BY USER IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10.3 THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
11. INDEMNITY OF X42
12. FORCE MAJEURE
X42 will not be held liable for any delays or failure in performance of any part of the Service, from any cause beyond X42’s reasonable control. This includes, but is not limited to, acts of God, changes to law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, unusually severe weather conditions, and acts of hackers or third-party internet service providers.
13. APPLICABLE LAW AND JURISDICTION
13.3 If the parties are unable to resolve the dispute through negotiation within a reasonable time after written notice from one party to the other that a dispute exists, the dispute shall be subject to the exclusive jurisdiction of the courts of Brussels.
14. OTHER PROVISIONS
14.4 In these Terms:
references to a “clause” or “schedule” are to a clause of or a schedule to these Terms;
words in the singular include the plural and vice versa and words of any gender include every other gender;
the headings and contents table are inserted for convenience only and shall be ignored in the interpretation of these Terms;
A reference to an entity shall include any company, corporation or other body corporate, wherever and however incorporated or established;
a reference to “Parties” is a reference to X42 and User and a reference to a “Party” is a reference to either of them.
14.5 Delay in exercising, or a failure to exercise, any right or remedy in connection with these Terms shall not operate as a waiver of that right or remedy. A waiver of a breach of these Terms shall not constitute a waiver of any subsequent breach.
14.6 Each of the parties acknowledges that it is not entering into these Terms in reliance upon any representation, warranty, collateral contract or other assurance (except those set out in these Terms and the documents referred to in it) made by or on behalf of any other party before the execution of these Terms. Each of the parties waives all rights and remedies which, but for this clause, might otherwise be available to it in respect to any such representation, warranty, collateral contract or other assurance, provided that nothing in this clause shall limit or exclude any liability for fraud.
14.7 No variation of these Terms shall be effective unless it is in writing.
14.8 User shall not be entitled to assign, transfer or sub-contract its rights under these Terms in whole or in part without first obtaining X42’s consent in writing. X42 shall be entitled to assign, transfer or sub-contract its rights under these Terms in whole or in part without first obtaining User’s consent in writing.
14.9 Nothing in these Terms shall constitute or be deemed to constitute a partnership or other form of joint venture between the parties or constitute or be deemed to constitute either party the agent or employee of the other for any purpose whatsoever.
14.10 Unless provided otherwise in these Terms, User shall not: (a) represent itself as an agent of X42 for any purpose; or (b) pledge X42’s credit; or (c) make any representation on X42’s behalf; (d) commit X42 to any contracts; or (e) otherwise incur any liability for or on behalf of X42.
14.11 Survival. The confidentiality obligations of the Parties contained in Clause 6 shall remain binding on both Parties during the Term and for a period of one (1) year after the expiration or termination of these Terms, regardless of the cause of such termination. All other sections that may be reasonably interpreted as surviving termination or expiration of these Terms will survive the termination or expiration of these Terms.
14.12 Third party Rights. Except as expressly provided elsewhere in these Terms, a person who is not a party to these Terms shall not have any rights whether statutory or otherwise to enforce any term of these Terms. This does not affect any right or remedy of a third party which exists, or is available, apart from statute.
14.13 Entire agreement. These Terms, together with any Statement of Work and all of the other documents to be entered into pursuant to it and together with its schedules, constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
14.14 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms.