TERMS OF SERVICE
V 2.4.1
These Terms of Service (TOS) constitute a legal “Agreement” between the “Client” and XINK APS, a Danish corporation, outlining the rules and responsibilities that apply when using the XINK service, software, application, website, and printed or offline material collectively referred to as “Product.”
The Agreement protects the interests of both the Client and XINK by clarifying the terms of use and preventing misunderstandings or disputes.
The Agreement establishes the expectations of both parties, including what the Client can and cannot do when using the service, how XINK operates, and how XINK resolves disputes.
NOW, THEREFORE, XINK and Client agree as follows:
1. DEFINITIONS
1.1 “Client” shall mean the Client, its employees, directors, successors, assignees, agents, and affiliates.
1.2 “Products” mean any products, including, without limitation, (i) software, (ii) updates, releases, and versions of the software, (iii) any parts or components that support the software; and (iv) any printed and online literature that is sold by or provided by XINK.
1.3 “Support Services” means any services related to the Products supplied by XINK to the Client but shall not include design services.
1.4 “Terms of Service” (TOC) shall collectively mean the Terms outlined in this Agreement.
2. LICENSE
You must have a license for each employee added or synced to your account. So, if you want to add or sync 200 employees, you will need 200 licenses. If you sync service accounts, meeting rooms, etc., they also require a license.
When you pay the license fee on time, you can use XINK’s Products. This license is non-exclusive and cannot be transferred to anyone else.
You can use XINK’s Products as long as you continue to pay the license fee and follow the TOC.
3. CLIENT CONTENT
3.1 Ownership of content: XINK retains ownership of the platform, while the Client retains ownership of their content.
3.2 Prohibited content:The Client may not post any content or otherwise make use of the Product in a manner that:
violates any applicable law (including export control laws and regulations), any third party’s intellectual property rights, or anyone’s right to privacy or publicity;
is deceptive, fraudulent, illegal, obscene, defamatory, disparaging, libelous, threatening, or pornographic (including child pornography, which, upon becoming aware of, we will remove and report to law enforcement, including the National Center for Missing and Exploited Children);
constitutes hate speech, harassment, or stalking;
Critics berate or attack others based on race, ethnicity, national origin, religion, sex, gender, sexual orientation, disability, or medical condition.
3.3 Client Responsibility: The Client is responsible for and ensures that their content does not violate any laws or infringe on the rights of others. The Client may be required to warrant that they have the right to use and upload the content they provide to the Product.
3.4 Removal of content: XINK has the right to remove or delete Client content that violates the Agreement. The Client may dispute the removal of their content by contacting XINK.
3.5 Indemnification: The Client must indemnify XINK against any claims arising from their content.
Xink is not liable for any content generated by or published by the Client or a third party, even if it is accessible through the Product.
4. FEES AND PAYMENTS
4.1 License Fees. Client shall pay XINK, or the XINK partner, for the user licenses, which include Support Services.
4.2 Taxes and Charges. Fees and other charges described in this Agreement do not include federal, state, or local sales, use property, excise, service, or similar taxes (“Taxes”). Therefore, the Client is solely responsible for payment of any taxes resulting from the Client’s acceptance of the Products and Services.
4.3 Payments and Delivery. Credit cards, debit cards, or an international bank wire transfer (SWIFT/IBAN) are acceptable payment methods.
Should the Client fail to pay on any applicable Due Date, XINK shall be entitled to suspend any further access to the Products. When XINK receives the past-due payment, access to the suspended Products is restored.
5. TERMINATION AND SERVICE AVAILABILITY
5.1 Termination. The Client may terminate the Subscription and the license granted hereunder by providing notice of termination at least thirty (30) days before the start of an Agreement. This termination is only valid if XINK confirms it and the Client has paid all fees then due and owing. Unless the Client provides thirty (30) days prior written notice of termination, the Subscription will automatically extend into the next Subscription Period. The Client will remain responsible for paying all license fees in full. In the event of any termination hereunder, Client shall not be entitled to any refund of any payments made by the Client.
5.2 Service Availability. XINK strives to provide continuous and reliable service but cannot guarantee 100% uptime.
XINK shall not be responsible for potential downtimes related to third-party services, such as Microsoft Azure Cloud, Google Workspace, or similar services that XINK integrates with.
6. PROPRIETARY RIGHTS AND RESTRICTIONS
6.1 Client acknowledges that ownership of and title in and to all intellectual property rights, including patent, trademark, service mark, copyright, and trade secret rights, in the Products and any related Services are and shall remain in XINK. Accordingly, the Client acquires only the limited right to access and use the Products. XINK shall have sole and exclusive ownership of all rights, title, and interest in and to the Products and all modifications and enhancements thereof, subject only to the rights and privileges expressly granted to Client herein by XINK.
6.2 The Client may not reverse assemble, reverse engineer, reverse compile or otherwise translate any Product. Client’s rights may not be transferred, leased, assigned, or sublicensed except as expressly authorized by XINK. No time-sharing arrangement is permitted except as expressly authorized by XINK.
6.3 To protect each party’s proprietary information, each party agrees to take all reasonable steps and the same protective precautions to protect such proprietary information from disclosure to third parties as with its own proprietary and confidential information. Neither party shall, without the other party’s prior written consent, disclose, provide, or make available any of the proprietary information of the other party in any form to any person except to its bona fide employees, officers, or directors whose access is necessary to enable such party to exercise its rights hereunder and who are bound by enforceable confidentiality restrictions consistent with those set forth herein. Each party agrees that before disclosing any proprietary information of the other party to any third party, it will notify the other party and obtain from that third party a written acknowledgment that such third party will keep such information in the strictest confidence.
7. LIMITED WARRANTY
7.1 Limited Warranty. Subject to the limitations and conditions set forth herein, XINK warrants that commencing from the date of delivery to Client and continuing for a period of the shorter of (a) sixty (60) days or (b) the warranty period (if any) expressly set forth as applicable specifically to Product in the warranty card or instructions accompanying the Product (if any):
(a) the Product furnished will be free of significant defects when used under normal conditions; and
(b) the Products conform to the performance standards outlined in XINK’S Product guides. This limited warranty extends only to Products purchased from XINK by the end-user Client.
7.2 Scope of Warranty. XINK does not warrant that the Products will operate uninterrupted, be compatible with Client’s computer network, hardware, and software, or it will be free from minor defects or errors which do not materially affect such performance or that the applications contained in the Products are designed to meet all of Client’s business requirements.
Express Disclaimer. EXCEPT AS EXPRESSLY OUTLINED IN THIS AGREEMENT, THE PRODUCTS AND THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” AND XINK DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES NOT SET FORTH HEREIN CONCERNING THE PRODUCTS, INCLUDING THEIR CONDITION, THEIR CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, AND THEIR MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CAN NOT BE VALIDLY WAIVE
8. LIMITED LIABILITY
8.1 Client’s Remedies. In the event, Client suffers any damages or loss in any way connected with the Products or any related Services furnished by XINK, whether due to XINK’s negligence or breach of any other duty, XINK shall, in addition to Client’s other remedies and at XINK’s option: (i) bring the performance of the Products into compliance with the functional specifications; (ii) re-perform of Services; or (iii) return an appropriate portion of the fees paid by Client concerning the applicable portion of the Products or Services, which under no circumstances shall exceed the total fees paid by Client, according to those TOC.
8.2 XINK Not Responsible. XINK will not be responsible under this Agreement for the following:
(i) any alteration or modification of the Products by Client; or
(ii) the correction of any defects resulting from modifications or extensions or as a result of misuse of the Products by Client; or
(iii) the preparation or conversion of data into the form required for use with the Products; or
(iv) the distortion or incompatibility of logos and other visual components of a signature that are created by external factors unrelated to the Products; or (v) any inaccurate or incorrect data originating from Client and other third parties; or (vi) ensuring the security of Client’s networked installation of the Products.
8.3 Limitation of Liability. ANYTHING TO THE CONTRARY HEREIN NOTWITHSTANDING, EXCEPT FOR DAMAGES RESULTING FROM UNAUTHORIZED USE OR DISCLOSURE OF THE PROPRIETARY INFORMATION OF THE OTHER PARTY, UNDER NO CIRCUMSTANCES SHALL XINK OR CLIENT BE LIABLE TO EACH OTHER OR ANY OTHER PERSON OR ENTITY FOR AN AMOUNT OF DAMAGES OVER THE PAID LICENSE FEES OR BE LIABLE IN ANY AMOUNT FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOODWILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, OR EXEMPLARY OR PUNITIVE DAMAGES.
The provisions of the Agreement allocate the risks between XINK and the Client. The annual license fees reflect this allocation of risk and the limitations of liability herein.
9. INDEMNIFICATION
9.1 XINK shall indemnify Client against all third-party claims, liabilities, and costs, including reasonable attorneys’ fees, reasonably incurred in defense of any claim brought against Client by third parties alleging that Client’s use of the Products infringes or misappropriates:
(i) any issued and active United States patent; or
(ii) copyright; or
(iii) trade secret rights, provided that Client promptly notifies XINK in writing of any such claim and XINK is permitted to control the defense and any settlement of such claim entirely as long as such settlement shall not include a financial obligation on or admission of fault by Client. Client shall cooperate fully in defense of such claim and may appear, at its own expense, through counsel reasonably acceptable to XINK. XINK may, in its sole discretion, settle any such claim on a basis requiring XINK to substitute an alternative substantially equivalent non-infringing product for the Products. The purposes of this section do not apply to any Products that have been tampered with or otherwise breached by Client.
9.2 Client shall defend, indemnify, and hold harmless XINK, its employees, directors, officers, shareholders, agents, attorneys, and representatives from any third-party claims, demands, suits, or liability arising out of or in connection with gross negligence or willful misconduct (including the unauthorized use of the Products) of Client, its employees, affiliates, or sub-contractors, provided that XINK gives Client:
(i) written notice of the claim within thirty (30) days of its notice thereof;
(ii) to the extent necessary and appropriate, all requested information and assistance concerning the claim at the indemnifying party’s expense, and
(iii) sole authority to defend and settle the claim.
10. MISCELLANEOUS
10.1 Relationship of the Parties. The relationship of each party to the other is that of an independent contractor, and neither party nor its agents or employees shall be considered employees or agents of the other party. This Agreement does not constitute and shall not be construed as constituting a partnership, joint venture, or grant of a franchise between XINK and Client. Neither party shall have the right to bind the other to any obligations to third parties.
10.2 Assignment. This Agreement shall not be assignable or transferable by Client without the prior written consent of XINK, and any attempted assignment without such prior written consent shall be void. Notwithstanding the foregoing, Client may assign this Agreement to an affiliated entity, a successor in connection with a merger, acquisition, or consolidation, or the purchaser in connection with the stale of all or substantially all of its assets without the prior consent of XINK.
10.3 Applicable Law. This Agreement shall be governed by and construed under the laws of Denmark without regard to principles of conflicts of laws.
10.4 Sublicense. No sublicense agreement into which Client enters under this Agreement may extend beyond the term of this Agreement and shall terminate upon the termination of this Agreement.
10.5 Modification, Amendment, Supplement, or Waiver. This Agreement constitutes the entire Agreement between the parties concerning the subject matter hereof and supersedes all previous agreements, promises, representations, understandings, and negotiations, whether written or oral. No modification, amendment, supplement to, or waiver of this Agreement or any of its provisions shall be binding upon the parties hereto unless made in writing and duly signed by all parties. This Agreement and any modification hereto shall prevail over any additional, conflicting, or inconsistent TOC appearing on any purchase order or other document (including any terms on any website, software, or other click-through arrangements). A waiver by Client or XINK of any of the terms or conditions of this Agreement in any one instance shall not be deemed a waiver of such terms or conditions in the future.
10.6 Agreement is Binding. This Agreement shall be binding on and shall inure to the benefit of the parties and their respective heirs, devisees, successors, and assigns.
10.7 Severability. If any provision of this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, the remaining provisions shall remain in full force and effect, and the affected provision shall be modified in a manner which comes closest to the intention of the parties at the time the original provision was agreed upon
10.8 Headings. Headings are for convenience only and shall not be considered in interpreting this Agreement
10.9 Counterparts. This Agreement may be signed by facsimile and in counterparts, each of which counterpart shall be deemed an original and all of which counterparts, when taken together, shall constitute but one and the same instrument.
10.10 Entire Agreement. This Agreement and any official updates to the TOC constitute the complete and exclusive statement of the Agreement between XINK and Client, and all previous representations, discussions, and writings are merged in, and superseded by, this Agreement. This Agreement may be modified by both parties and signed. This Agreement and any update hereto shall prevail over any additional, conflicting, or inconsistent TOC which may appear on any purchase order or other document furnished by Client to XINK unless otherwise
1.1 “Authorized Representative” means a person whose job title is that of Director or Manager Director at XINK or any person authorized by any of these to enter into contracts on behalf of XINK.
1.2 “Client” shall mean the Client, its employees, directors, successors, assignees, agents, and affiliates.
1.3 “Products” mean any products, including without limitation, (i) software, (ii) updates, releases, and versions of the software, (iii) any parts or components that support the software; and (iv) any printed and/or online literature that is sold by or provided by XINK.
1.4 By the term “onsite” is meant the product which is installed on-premise. By the term “cloud” is meant the product which works on the web site as a cloud solution.
1.5 “Support Services” means any services related to the Products supplied by XINK to the Client but shall not include design services.
1.6 “Terms and Conditions” shall mean, collectively, the terms and conditions set forth in this Agreement.
Grant of License. In consideration for the Client’s continued timely payment of the license fee for the Products, XINK grants to Client a non-exclusive, non-transferable license (except as provided in Section 9.2 hereof) right to access, use, and display XINK ’s Products. The license shall apply to all releases and versions of the Products so long as Client has paid the license fee then due and owing and is in compliance with the Terms and Conditions.
3.1 License Fees.
Client shall pay to XINK a license fee for use of the Products. Support Services rendered by XINK
are included in the license fee. The license fee will be paid within thirty (30) days from the date
of client’s receipt of completed Xink invoice.
3.2 Taxes and Charges.
Fees and other charges described in this Agreement do not include federal, state, or local sales,
use property, excise, service, or similar taxes (“Taxes”). Client is solely responsible for payment
of any taxes resulting from Client’s acceptance of the Products and/or Services.
3.3 Payments and Delivery.
3.3.1 Payment may be made by bank transfer/wire, or credit card, which may be payable
online.
3.3.2 When paying by credit card, the credit card is first authorized to generate a transaction
3.3.2.1 This is not a payment guarantee. The payment is deemed complete when the charge is
drawn from the credit card account. All credit card transactions are executed by a merchant
provider used by XINK.
Should Client fail to make a payment on any applicable Due Date, then without prejudice to any
other right or remedy available to XINK, XINK shall be entitled to:
3.3.3.1 Suspend any further access to the Products.
3.3.3.2 appropriate any payment made by Client and re-direct such payment towards
the delinquent amount, as XINK deems fit; and/or
3.4 XINK has a license server which the application has access to. If a license fee,
maintenance fee or service fee remains unpaid XINK can shut down the service and hence the
Products will not work anymore. The usage of the products and services relies on the annual or
monthly payment which is agreed by the parties.
3.4.1 Restoration of suspended access to the Products shall be effectuated promptly
upon client’s payment of all amounts then due and owing.
4.1 Term. This Agreement and the license granted hereunder shall become effective on
the Effective Date and shall continue for one year or one month therefrom automatically.
4.2 Termination without Cause. Client may terminate this Agreement and the license granted
hereunder by providing notice of termination at least thirty (30) days prior to the start of an
Agreement. This termination is only valid if it is confirmed by XINK and Client has paid all fees
then due and owing. Unless Client provides thirty (30) days prior written notice of termination,
the Term will automatically extend into the next Subscription Period, and Client will remain
responsible for paying all license fees in full. In the event of any termination hereunder, Client
shall not be entitled to any refund of any payments made by Client.
4.3 Termination with Cause. This Agreement and the license granted hereunder shall terminate
upon notice to one party (the “Breaching Party”) by the other (the “Non-breaching Party”) (i) if
the Breaching Party files for bankruptcy, becomes insolvent, or makes an assignment for the
benefit of creditors; (ii) if the Breaching Party violates the Non-breaching Party’s intellectual
property and proprietary rights; (iii) if Client fails to pay the license fees or fees for Support
Services when due and fails to cure such non-payment within thirty (30) days of written notice
thereof; or (iv) thirty (30) days after the Non-breaching Party gives the Breaching Party notice of
the Breaching Party’s material breach of any provision of the Agreement and the Breaching
Party has not cured such breach during such thirty (30) day period.
4.4 Duties Upon Termination. Upon any termination hereunder, Client shall immediately cease
use of all XINK Products and shall irretrievably delete and/or remove the Products from all
computer hardware and storage media. Client agrees that within thirty (30) days after receipt
of a request by XINK, an officer of Client’s organization shall certify in writing to XINK that it has
performed the foregoing. In addition, Client understands and agrees that upon termination of
this Agreement and the license hereunder for any reason, XINK shall have the right to suspend
or terminate Client’s account, including access by Client to all Products and Client agrees to
remove all Products from its computer network server and system and provide XINK written
confirmation once the Products have been removed.
4.5 Support Services and Service Level. XINK shall establish and maintain an organization and a
process in order to provide support Software to the Client. Support shall include the diagnosis
of problems or performance deficiencies of the Software and a resolution hereto. XINK shall
provide software support all hours of the day all five everyday of a week (Monday through
Friday) excluding public holidays or weekends. An email from XINK with acknowledgment of the
Support request serves as verification and acknowledgment of the support request. All support
requests should be created on support.xink.io before they can be acknowledged. An email sent
to Xink or directly to a XINK representative does not function as a valid support request. A
support request is only valid with a ticket number, which serves as confirmation. XINK shall use
its best efforts to solve reported and reproducible errors in the Software.
4.6 The response time for support requests is 24 hours where the support request will be
acknowledged. There are two types of support, 1) Product Support and 2) Design Service
support. XINK guarantees that a support request regarding type 1) will be solved quickly if it is
currently an available feature on the product, or, if it is a matter of incorrect setup, links to
documentation will be provided quickly in order for the Client to be able to continue the setup
or continued function of the product. Regarding support for type 2) XINK is unable to guarantee
that a design looks exactly the same in all email programs and devices reading emails. XINK
shall follow strict standards for email signature design coding but can never be held responsible
for designs that look different.
4.7 XINK shall not be responsible for potential downtimes related to third-party services,
such as Gmail and Office 365, Microsoft Azure or similar services that XINK integrates with.
5.1 Client acknowledges that ownership of and title in and to all intellectual property rights,
including patent, trademark, service mark, copyright, and trade secret rights, in the Products
and any related Services are and shall remain in XINK. Client acquires only the limited right to
access and use the Products, and XINK shall have sole and exclusive ownership of all right, title
and interest in and to the Products, and all modifications and enhancements thereof, subject
only to the rights and privileges expressly granted to Client herein by XINK.
5.2 Client may not use, copy, modify or distribute the Products (electronically or otherwise)
except as provided under the terms and conditions of this Agreement, or any copy, adaptation,
transcription or merged portion thereof, except as expressly authorized by XINK. Client may not
reverse assemble, reverse engineer, reverse compile or otherwise translate any Product.
Client’s rights may not be transferred, leased, assigned or sublicensed, except as expressly
authorized by XINK. No time-sharing arrangement is permitted, except as expressly authorized
by XINK.
5.3 In order to protect each party’s proprietary information, each party agrees to take all
reasonable steps and the same protective precautions to protect such proprietary information
from disclosure to third parties as with its own proprietary and confidential information.
Neither party shall, without the other party’s prior written consent, disclose, provide, or make
available any of the proprietary information of the other party in any form to any person,
except to its bona fide employees, officers, or directors whose access is necessary to enable
such party to exercise its rights hereunder and who are bound by enforceable confidentiality
restrictions consistent with those set forth herein. Each party agrees that prior to disclosing any
proprietary information of the other party to any third party, it will notify the other party and
obtain from that third party a written acknowledgment that such third party will keep such
information in the strictest confidence.
6.1 Limited Warranty. Subject to the limitations and conditions set forth herein, XINK
warrants that commencing from the date of delivery to Client and continuing for a period of the
shorter
of (a) sixty (60) days or (b) the warranty period (if any) expressly set forth as applicable
specifically to Product in the warranty card or instructions accompanying the Product (if any):
(a) the Product furnished will be free of major defects when used under normal conditions; and
(b) the Products conform to the performance standards set forth XINK’S Product literature. This
limited warranty extends only to Products purchased from XINK by the end-user Client.
6.2 Scope of Warranty. XINK does not warrant that the Products will operate uninterrupted, be
compatible with Client’s computer network, hardware and software, or that it will be free from
minor defects or errors which do not materially affect such performance or that the
applications contained in the Products are designed to meet all of Client’s business
requirements.
Express Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE
PRODUCTS AND THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,”
AND XINK DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES NOT SET
FORTH HEREIN WITH RESPECT TO THE PRODUCTS, INCLUDING ITS CONDITION, ITS
CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, THE EXISTENCE OF ANY LATENT OR
PATENT DEFECTS, AND ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, EXCEPT TO
THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED.
7.1 Client’s Remedies. In the event Client suffers any damages or loss in any way connected
with the Products or any related Services furnished by XINK, whether due to XINK’s negligence
or breach of any other duty, XINK shall, in addition to Client’s other remedies and at XINK’s
option: (i) bring the performance of the Products into compliance with the functional
specifications; (ii) re-perform of Services; or (iii) return an appropriate portion of the fees paid
by Client with respect to the applicable portion of the Products or Services, which under no
circumstances shall exceed the total fees paid by Client, pursuant to those terms and
conditions.
7.2 XINK Not Responsible. XINK will not be responsible under this Agreement for: (i) any
alteration or modification of the Products by Client; or (ii) the correction of any defects
resulting from modifications or extensions or as a result of misuse of the Products by Client; or
(iii) the preparation or conversion of data into the form required for use with the Products; or
(iv) the distortion or incompatibility of logos and other visual components of a signature that
are created by external factors unrelated to the Products; or (v) any inaccurate or incorrect
data originating from Client and/or other third-parties; or (vi) ensuring the security of Client’s
networked installation of the Products.
7.3 Limitation of Liability. ANYTHING TO THE CONTRARY HEREIN NOTWITHSTANDING,
EXCEPT FOR DAMAGES RESULTING FROM UNAUTHORIZED USE OR DISCLOSURE OF THE
PROPRIETARY INFORMATION OF THE OTHER PARTY, UNDER NO CIRCUMSTANCES SHALL XINK
OR CLIENT BE LIABLE TO EACH OTHER OR ANY OTHER PERSON OR ENTITY FOR AN AMOUNT OF
DAMAGES IN EXCESS OF THE PAID LICENSE FEES OR BE LIABLE IN ANY AMOUNT FOR SPECIAL,
INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOODWILL OR BUSINESS
PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, OR
EXEMPLARY OR PUNITIVE DAMAGES. The provisions of the Agreement allocate the risks
between XINK and Client. The annual license fees reflect this allocation of risk and the
limitations of liability herein.
8.1 XINK shall indemnify Client against all third party claims, liabilities, and costs, including
reasonable attorneys’ fees, reasonably incurred in the defense of any claim brought against
Client by third parties alleging that Client’s use of the Products infringes or misappropriates: (i)
any issued and active United States patent; or (ii) a copyright; or (iii) trade secret rights,
provided that, Client promptly notifies XINK in writing of any such claim and XINK is permitted
to control fully the defense and any settlement of such claim as long as such settlement shall
not include a financial obligation on or admission of fault by Client. Client shall cooperate fully
in the defense of such claim and may appear, at its own expense, through counsel reasonably
acceptable to XINK. XINK may, in its sole discretion, settle any such claim on a basis requiring
XINK to substitute for the Products an alternative substantially equivalent non-infringing
product. The purposes of this section do not apply for any Products that have been tampered
or otherwise breached by Client.
8.2 Client shall defend, indemnify, and hold harmless XINK, its employees, directors, officers,
shareholders, agents, attorneys, and representatives from any and all third party claims,
demands, suits, or liability arising out of or in connection with gross negligence or willful
misconduct (including the unauthorized use of the Products) of Client, its employees, affiliates,
or sub-contractors, provided that XINK gives Client: (i) written notice of the claim within thirty
(30) days of its notice thereof; (ii) to the extent necessary and appropriate, all requested
information and assistance with respect to the claim at the indemnifying party’s expense, and
(iii) sole authority to defend and settle the claim.
9.1 Relationship of the Parties. The relationship of each party to the other is that of an independent contractor and neither party nor its agents or employees shall be considered employees or agents of the other party. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture or grant of a franchise between XINK and Client. Neither party shall have the right to bind the other to any obligations to third parties. v. 1.0 7
9.2 Assignment. This Agreement shall not be assignable or transferable by Client without the prior written consent of XINK, and any attempted assignment without such prior written consent shall be void. Notwithstanding the foregoing, Client may assign this Agreement to an affiliated entity, a successor in connection with a merger, acquisition or consolidation, or to the purchaser in connection with the stale of all or substantially all of its assets, without the prior consent of XINK.
9.3 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of Denmark, without regard to principles of conflicts of laws.
9.4 Sublicense. No sublicense agreement into which Client enters pursuant to this Agreement may extend beyond the term of this Agreement and shall terminate upon the termination of this Agreement.
9.5 Modification, Amendment, Supplement, or Waiver. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous agreements, promises, representations, understandings, and negotiations, whether written or oral. No modification, amendment, supplement to or waiver of this Agreement or any of its provisions shall be binding upon the parties hereto unless made in writing and duly signed by all parties to this Agreement. This Agreement and any modification hereto shall prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any purchase order or other document (including any terms on any website, software or other click-through arrangement). A waiver by Client or XINK of any of the terms or conditions of this Agreement in any one instance shall not be deemed a waiver of such terms or conditions in the future.
9.6 Agreement is Binding. This Agreement shall be binding on, and shall inure to the benefit of, the parties hereto and their respective heirs, devisees, successors and assigns.
9.7 Severability. In the event that any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect and the affected provision shall be modified in a manner which comes closest to the intention of the parties at the time the original provision was agreed upon
9.8 Headings. Headings are for convenience only and shall not be considered in interpreting this Agreement
9.9 Counterparts. This Agreement may be signed by facsimile and in counterparts, each of which counterpart shall be deemed an original and all of which counterparts when taken together, shall constitute but one and the same instrument.
9.10 Entire Agreement. This Agreement and any official updates to the Terms and Conditions constitute the complete and exclusive statement of the agreement between XINK and Client, and all previous representations, discussions, and writings are merged in, and superseded by, this Agreement. This Agreement may be modified only by a writing signed by both parties. This Agreement and any update hereto shall prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any purchase order or other document furnished by Client to XINK unless otherwise
