Effective Date: Thu Feb 14 2019
Note: This document is only available in English, as it's the official language of commerce for our clients (B2B) and in the regions we operate. Any translated copies are not valid.
Definitions. Whenever used in this Agreement, the following terms will have the following specified meanings:
"Account" refers to the Customer's account whereby Customer registers for and accesses the Service.
"Brand Features" means any trade names, trademarks, servicemarks, logos, domain names, or other distinctive items that represent Customer or XeonTek, respectively.
"Customer Data" means anonymous, aggregated data concerning the characteristics and activities of visitors to the Customers’ website(s), forwarded to the Servers, and analyzed by the Processing Software. The parties agree and understand that Customer intends to use the Service in a way that only anonymous information is collected from website visitors, so that no information collected can be used to identify individual website visitors (referred to as “PII”).
"Documentation" means any documentation for use with the Processing Software, including that which is available online or otherwise.
"XeonTek" means the company XeonTek Ltd registered in England, United Kingdom.
"Page View" is a unit of measurement for usage of the Service. A Page View occurs each time a web page is accessed by a visitor.
"Processing Software" means the proprietary XeonTek server software, together with any fixes, updates, and upgrades, which process, analyze, and store the Customer Data.
"Proprietary Rights" means, without limitation, any patent, copyright, trademark, trade secret, design, database right, business name, domain name, layout, design or other intellectual property or Proprietary Right, whether registered or not and whether registerable or not, as may exist anywhere in the world.
"Recorded Session" or "Session" is a unit of measurement which consists of a plurality of Page Views during a single browsing session on the Website. A session is started when a user arrives on the Website and navigates to a page which, continuing until terminated due to (a) one (1) hour of inactivity, (b) the session reaching a threshold of 100 Page Views, (c) the user closing their browser window or clearing their cookies.
"Report" means the analysis derived from Customer Data and made available through the Account. The charts, graphs, and statistics contained in a Report vary based on the type of account and plan.
"Servers" means the technological infrastructure controlled by XeonTek (or its subsidiaries) upon which the Processing Software operates and the Customer Data stored.
"Service" means the facilities to analyze or parse Customer Data, including Recorded Sessions, from a Website owned, controlled, or operated by Customer. "Software" means the Processing Software.
"Website" means a collection of one or more web pages that Customer owns, controls, or operates.
General. Customer engages XeonTek to provide the Service that uses Software to process, analyze, and store Customer Data on behalf of Customer.
Billing. For a Paid Plan, Customer will be billed automatically via credit card, PayPal, or invoice, depending on the Subscription. The bill amount shall include the applicable fees for the Subscription, together with any extraordinary costs that are incurred as a result of high traffic or data transfer related Customer's use of XeonTek's Products. XeonTek shall have the sole right to determine whether such extraordinary costs are billed to Customer and, if so, the rate which shall be billed (to be no higher than twenty percent (20%) above cost). If the Customer is invoiced, invoices will be sent to the Customer at the beginning of the billing cycle via electronic mail and must be paid within thirty (30) days of receipt. A late fee will be charged at a rate of one percent (1%) per month on undisputed overdue amounts. If payments on undisputed amounts are not received within thirty (30) days, XeonTek reserves the right to suspend access to any Service. If payments on undisputed amounts are not received within sixty (60) days, XeonTek reserves the right to permanently delete the Customer Data.
Term and Termination. The Agreement will take effect on the date the Account is created and will continue in full force and effect until terminated. This Agreement will apply to the Software and Services provided on or after the Effective Date, and if XeonTek agrees to provide the Software and Services after the end of the Term, this Agreement shall apply to such Software and Services. Without prejudice to any other rights, XeonTek may terminate Customer's Subscription and the licenses contained herein (a) for any or no reason and at anytime or (b) if Customer fails to comply with these Terms and Conditions. .
Sensitive Data. Customer must comply with all applicable laws (including, but not limited to, privacy and data security laws) and represents and warrants that it will not use the Service or the Software to violate such laws. Customer agrees to exclude any confidential, proprietary, sensitive, or personally identifiable information from capture, as necessary, described in the links to the relevant articles below and (i) accepts full responsibility and liability of ensuring such information is adequately and completely excluded and (ii) will indemnify, defend and hold XeonTek harmless for all claims, damages, liabilities, losses, costs and expenses (including, without limitation, reasonable attorneys' fees) arising out of or in connection with a failure to meet this obligation. Please refer to XeonTek's Privacy Page for more information. Both parties agree to (i) notify the other party if it discovers that PII has been collected and (ii) immediately and permanently delete such PII upon discovery or written request from the other party.
Account and Security. Customer is responsible for safeguarding the confidentiality of any login credentials issued by XeonTek and for any use or misuse of the Service resulting from unauthorized access. Customer agrees to notify XeonTek immediately in the event of a security breach or unauthorized access to the Account or Service. XeonTek may, from time to time, login to Customer's Account to make improvements or troubleshoot technical issues. Customer hereby consents to such access.
Nonexclusive License. XeonTek hereby grants Customer a limited, revocable, nonexclusive, nonsublicensable license to install, copy, and its Software on one or more web pages that Customer owns and controls (collectively, the "Website") as necessary to use the Service. Customer may access, view, and download Customer Data and Reports at XeonTek.com (or any other such URL that XeonTek may provide from time to time), and may share such Customer Data and Reports with its employees, contractors, agents (e.g. accountants, attorneys, public relations, advertising and marketing agencies, and the like) and customers. Except as otherwise provided in this Agreement, Customer will not nor will Customer allow any third party to (i) copy, modify, adapt, translate, or otherwise create derivative works of the Software or the Documentation; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Software, except as expressly permitted by the law in effect in the jurisdiction in which Customer is located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Account, the Software, the Documentation, or the Service; (iv) remove any proprietary notices or labels on the Software or placed by the Service; or (v) use, post, transmit or introduce any device, Software, or routine which interferes or attempts to interfere with the operation of the Service or the Software. Customer will use the Account, Software and Service solely for its internal use, and will not make the Account, Software or Service available for access by other parties, application service providers, or service bureaus, except that Customer may grant access to its employees and contractors. Customer will comply with all applicable laws and regulations in Customer's use of and access to the Account, Documentation, Reports, Service, and Software.
Confidentiality. "Confidential Information" includes any proprietary data or other information disclosed by one party (“Disclosing Party”) to the other (“Recipient”) in writing and marked "confidential" or disclosed orally and, within five (5) business days, reduced to writing and marked "confidential". Notwithstanding the foregoing, Confidential Information will not include any information that: (a) is or becomes public knowledge other than as a result of a breach of this Agreement or other obligation of confidentiality; (b) the Recipient can show was in its unrestricted possession, known to it before the date of this Agreement or independently developed by it before being disclosed under this Agreement; (c) is disclosed or made available to the Recipient by a third party other than in breach of this Agreement or other obligation of confidentiality; or (d) is disclosed by the Recipient with the prior written permission of the Disclosing Party. Neither party will use or disclose the other party's Confidential Information without the other's prior written consent except for the purpose of performing its obligations under this Agreement or if required by law enforcement personnel, regulation, court order, or administrative agency, in which case, the Recipient must give the Disclosing Party as much notice as is reasonably practicable (and permitted by law) prior to disclosing such information. Upon termination of Customer's Subscription, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such.
Information Rights and Publicity. Except as permitted herein, XeonTek will not share information associated with Customer or Customer's Website(s) with any third parties unless XeonTek (i) has Customer's prior written consent; (ii) concludes that disclosure is required by law or has a good faith belief that disclosure is reasonably necessary to protect the rights, property, or safety of XeonTek, its users, or the public; or (iii) provides such information in certain limited circumstances to third parties to carry out tasks on XeonTek's behalf (e.g. billing, data storage, or support) with strict restrictions intended to prevent the data from being used or shared except as directed by XeonTek.
Warranty and Indemnification. XeonTek warrants that: (i) each of its employees has the proper skill, training and background necessary to accomplish their assigned tasks; (ii) all Services will be performed in a competent and professional manner, by qualified personnel; and (iii) neither the Software, any deliverables, information, or materials, nor the performance of Services by XeonTek infringe or violate the rights of any third party. Customer will indemnify, defend and hold XeonTek harmless for all claims, damages, liabilities, losses, costs and expenses (including, without limitation, reasonable attorneys' fees) that arise out of or in connection with Customer's use of the Software or Services, termination, or failure to comply with this Agreement. XeonTek will indemnify, defend and hold Customer harmless for all claims, damages, liabilities, losses, costs and expenses (including, without limitation, reasonable attorneys' fees) that arise out of or in connection with: (i) XeonTek's failure to comply with this Agreement, and (ii) any claims that Customer's installation, copy or use of the Software and/or use of the Services constitutes infringement of third party intellectual property rights. Subject to the applicable statute of limitations, the indemnity set forth in this Section 12 will continue in full force and effect subsequent to and notwithstanding this Agreement's expiration or termination.
Disclaimer of Warranties. The information and services included in or available through the Service, including the Reports, may include inaccuracies or typographical errors. XeonTek may make improvements and/or changes to the Account, Service or Software at any time, with or without notice. XeonTek does not represent or warrant that the Account, Service, or Software will be uninterrupted or error-free, that defects will be corrected, or that the Service, Software, or Server is free of viruses or other harmful components. XeonTek does not warrant or represent that the use of the Service or the Reports will be correct, accurate, timely or otherwise reliable. Customer specifically agrees that XeonTek and its subsidiaries shall not be responsible for unauthorized access to or alteration of the Customer Data or data from Customer's Website(s). EXCEPT FOR WARRANTY AND INDEMNIFICATION OBLIGATIONS CONTAINED IN SECTION 12 TITLED "WARRANTY AND INDEMNIFICATION," THE SERVICE, THE SOFTWARE, DOCUMENTATION AND REPORTS ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY XeonTek AND/OR ITS SUBSIDIARIES AND AFFILIATES, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE, THE SOFTWARE, THE DOCUMENTATION OR REPORTS, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. XeonTek DOES NOT WARRANT THAT THE SERVICE, THE SOFTWARE OR REPORTS WILL MEET CUSTOMER'S NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE.
Limitation on Liability. EXCEPT FOR THE PARTIES' RESPECTIVE INDEMNIFICATION OBLIGATIONS CONTAINED IN SECTION 11 TITLED "WARRANTY AND INDEMNIFICATION" ABOVE WITH RESPECT TO CLAIMS BY THIRD PARTIES, NO PARTY OR ANY OF ITS SUBSIDIARIES AND/OR AFFILIATES OR EMPLOYEES SHALL BE CUMULATIVELY LIABLE TO THE OTHER FOR (A) ANY LOSS OR DAMAGE IN EXCESS OF $250, OR (B) ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICE), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION BASED ON CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF SUCH PARTY AND/OR ITS SUBSIDIARIES OR AFFILIATES OR EMPLOYEES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES OR COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES IN SOME INSTANCES, AND TO THAT EXTENT, SUCH LIMITATIONS OR EXCLUSIONS DO NOT APPLY.
Proprietary Rights. The Service, which includes, but is not limited to, the Account and Software, together with all intellectual property rights is, and shall remain, the property of XeonTek (and its subsidiaries). All rights not expressly granted to Customer in this Agreement are hereby exclusively reserved and retained by XeonTek and its licensors without restriction, including, without limitation, XeonTek's (and its subsidiaries') right to sole ownership of the Software and Documentation. Without limiting the generality of the foregoing, Customer agrees not to (and to not allow any Third Party to): (a) sublicense, distribute, or use the Service or the Software outside of the scope of the License granted herein; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Software or Service or otherwise attempt to discover any source code or trade secrets related to the Software of Service; (c) use the trade names, trademarks, servicemarks, logos, domain names and other distinctive Brand Features or any copyright or other Proprietary Rights associated with the Software or the Service for any purpose without the express written consent of XeonTek; (d) register, attempt to register, or assist anyone else in creating or registering trade name, trademark, servicemark, logo, domain name or other distinctive Brand Feature, copyright, or other proprietary right associated with XeonTek (or its subsidiaries) ; or (e) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Software or the Service.
a. Applicable Law and Forum. This Agreement shall be governed and construed in accordance with the laws of England without regard to the conflicts of laws or principles thereof. Each party agrees to submit to the exclusive jurisdiction of the courts located in England.
b. Notice. Any notice or other communication required or permitted under this Agreement shall be given in writing and delivered by hand or Certified Mail, postage prepaid and return receipt requested.
c. Nonwaiver. Any failure by a party to insist upon or enforce strict performance by the other party of any of the provisions of this Agreement, or to exercise any right or remedy under this Agreement, will not be construed as a waiver or relinquishment of any right to assert or rely upon any such provision, right, or remedy in that or any other instance.
d. Counterparts. This Agreement may be executed in any number of counterparts or addendums, and each such counterpart or addendum will be deemed to be an original instrument, but all such counterparts together will constitute one agreement. The parties acknowledge that executed copies of this Agreement sent by facsimile or other reliable form of electronic reproduction will be equivalent to original documents.
e. Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning its subject matter, and supersedes all prior agreements and representations between the parties.
f. Modifications. XeonTek reserves the right to change or modify the Service or this Agreement at any time and with or without notice Customer is responsible for regularly reviewing and being aware of such changes.
g. Severability. If any provision of this Agreement is invalid or unenforceable under any statute or rule of law, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
h. Headings. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement.
i. Assignment. Customer may not assign or otherwise transfer any of its rights hereunder without prior written consent from a duly authorized representative of XeonTek; any such attempt is void. Except Customer may transfer this Agreement to an affiliated company or in the case of a merger or sale of all or substantially all of its assets or ownership.
j. Survival. Sections 5, 7, 10, 12-16 shall survive termination of Customer's subscription.
k. Force Majeure. XeonTek shall be excused from performance hereunder to the extent that performance is prevented, delayed, or obstructed by causes beyond its reasonable control.
l. Independent Contractors. The relationship between XeonTek and Customer is not one of partnership, but independent contractors.