TERMS AND CONDITIONS OF USE
IMPORTANT READ CAREFULLY: These terms and conditions constitute a legal agreement (the “Agreement“) between you and XINK APS, a Danish corporation (“XINK“), regarding the XINK’s Products and related Services identified below, which include the software, application, parts, and any printed or “online” or literature (collectively referred to as “Product”).
YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY PURCHASING, INSTALLING, COPYING, OR OTHERWISE USING THE PRODUCT. IF YOU DO NOT AGREE, DO NOT PURCHASE, INSTALL, OR USE THE PRODUCT.
WHEREAS, XINK desires to grant to Client, and Client desires to accept from XINK, a license to use XINK’s proprietary Products (as defined herein) upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, XINK and Client agree as follows:
1.1 “Agreement Year” means the twelve-month period beginning with the first day of the month in which the Client and XINK fully execute an End Use License Agreement (“EULA”).
1.2 “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.
1.3 “Client” shall mean the Client, its employees, directors, successors, assignees, agents, and/or affiliates.
1.4 “License Key” shall mean the unique code provided by XINK to Client that enables Client to access the Products.
1.5 “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.
1.6 By the term “on-premises” is meant the product which is installed on-premises. By the term “cloud” is meant the product which works of the web site as a cloud solution.
1.7 “Services” means any services related to the Products that are provided by XINK to its Clients within thirty (30) days from the Effective Date of the EULA.
1.8 “Support Services” means any services related to the Products that are offered after thirty (30) days from the Effective Date of the EULA.
1.9 “Terms and Conditions” shall mean, collectively, the terms and conditions of sale and delivery, as well as terms and conditions set forth in this Agreement – or such replacement terms and conditions which are in force at the date of the EULA, as well as the terms and conditions set forth on the official website at XINK.io, or any other official website related to XINK.
2.1 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 right to access, use, and display XINK’s Products. This license permits only one (1) copy of the Products on a single server/computer unless it is understood that the Products will need to be installed on more than one server/computer. The license shall apply to all releases and versions of the Products so long as Client has paid the license fee in full and is in compliance with the Terms and Conditions.
- FEES AND PAYMENTS.
3.1 License Fees. In order to access and use the Products, Client shall pay to XINK a periodic license fee for the Products and/or related Services. The terms of payment for the periodic license fee will depend on whether the Client is using the on-site or cloud version of the Products. The license fee for the on-site version shall be paid annually and the initial fee will be paid contemporaneously with the execution of the EULA by Client unless the parties agree otherwise. The license fee for the cloud version shall be paid annually or monthly, as decided by the parties. If the license fee is to be paid annually, the initial fee will be paid contemporaneously with the execution of the EULA by Client unless the parties agree otherwise. All subsequent annual license fees must be paid in full by the first (1st) day of the anniversary month in which the EULA was signed, or if such day is a Saturday or Sunday, by the next business day. If the license fee is to be paid monthly, the initial fee will be paid contemporaneously with the execution of the EULA by Client unless the parties agree otherwise. Subsequent monthly fees must be paid by the fifth (5th) day of each month, or if such day is a Saturday or Sunday, by the next business day. Upon receipt of the payment in full, XINK shall deliver to Client the License Keys, at which time, the delivery is complete. License fees are subject to change at the sole discretion of XINK and without notice. Client understands and agrees that Support Services are not covered by the license fee and will be in addition to the license fee at a rate to be determined by XINK at its own discretion.
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, and if XINK is required to pay Taxes (excepting taxes on XINK’s income), XINK shall invoice Client for such Taxes. Client hereby agrees to indemnify XINK for and hold it harmless from all claims and liability arising from Client’s failure to report or pay such Taxes.
3.3 Payments and Delivery.
3.3.1 XINK reserves the right to determine the manner in which payment may be made, which may include without limitation, bank transfer or wire, check, 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 ID. 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 XINK.
3.3.3 Once the payment has been received and completed, the License Key will be released and delivered to Client if it related to on-premises. If it is related to cloud, the service will start from the day the payment has been received.
3.3.4 The time of payment shall be of the essence for any given EULA. Should Client fail to make a payment on the due date, then without prejudice to any other right or remedy available to XINK, XINK shall be entitled to:
188.8.131.52 cancel the EULA or suspend any further deliveries of Products or suspend any Services;
184.108.40.206 appropriate any payment made by Client and re-direct such payment towards the delinquent amount, as XINK deems fit; and/or
220.127.116.11 charge the Client with interest (both before and after judgment) on the unpaid amount.
3.4 XINK has a license server which the application has access to. If a license fee or maintenance fee remains unpaid XINK can shut down the service and hence the Products will not work anymore. The usage of the products and services rely on the annual payment.
3.4.1 If a service has been shut down due to several reminders and then the Client wants to get the service back, this can be done normal prices less a percentage determined by XINK.
- TERM AND TERMINATION.
4.1 Term. This Agreement and the license granted hereunder shall become effective when signed by both parties. The Agreement year shall begin as of the first (1st) day of the month in which it is signed by Client and will continue for one (1) Year (the “Term”) unless terminated as provided herein.
4.2 Termination without Cause. Client may terminate this Agreement and the license granted hereunder by providing notice of termination at least two (2) months prior to the start of an Agreement Year. For purposes of clarification, if this Agreement was executed on December 15, 2007, then the Agreement Year would begin starting December 1, 2007. Client must provide notice of termination on or before October 31, 2007 in order to effectively terminate this 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 two (2) months prior written notice of termination, the Term will automatically extend into the next Agreement Year, 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, and if Client is on a monthly payment schedule, Client shall immediately pay all monthly fees owed to XINK.
4.3 Termination with Cause. This Agreement and the license granted hereunder shall terminate (i) immediately if Client files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors; (ii) immediately upon XINK’s knowledge of any violation of XINK’s intellectual property and proprietary rights; (iii) immediately if Client fails to pay the license fees or fees for Support Services when due for any reason; or (iv) thirty (30) days after XINK gives Client notice of Client’s material breach of any provision of the Agreement and Client 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 proprietary information and shall irretrievably delete and/or remove such items from all computer hardware and storage media. Client agrees that within thirty (30) days after any termination, 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 images, signatures and 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.
- PROPRIETARY RIGHTS AND RESTRICTIONS.
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), 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 service bureau work, multiple-user license or time-sharing arrangement is permitted, except as expressly authorized by XINK. Client may not install the Products in any other computer system or use it at any other location without XINK’s express authorization obtained in advance. If Client (a) uses, copies or modifies the Products, or transfers possession of any copy, adaptation, transcription or merged portion of the Products to any other party, in any way not expressly authorized hereunder by XINK; or (b) otherwise breaches any of its covenants and obligations under this Agreement, XINK shall thereupon automatically and immediately terminate this Agreement, without any requirement of notice from XINK.
5.3 Client acknowledges that, in the event of Client’s breach of any of the provisions of this Section 5, XINK will not have an adequate remedy in money or damages. XINK shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. XINK’s right to obtain injunctive relief shall not limit its right to seek further remedies.
5.4 In order to protect XINK’s proprietary information, Client 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, directors, or third parties whose access is necessary to enable such party to exercise its rights hereunder. Each party agrees that prior to disclosing any proprietary information of the other party to any third-party, it will obtain from that third-party a written acknowledgment that such third-party will keep such information in the strictest confidence.
- LIMITED WARRANTY.
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 substantially conforms 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, are compatible with Client’s computer network, hardware and software, or 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.
6.3 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 WITH RESPECT TO THE PRODUCTS, INCLUDING ITS CONDITION, ITS CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, ANY NEGLIGENCE, AND ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED.
- LIMITED LIABILITY.
7.1 Client’s Remedies. Client’s sole and exclusive remedies for 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, shall be, at XINK’s option: (i) to bring the performance of the Products into substantial compliance with the functional specifications; (ii) re-performance of Services; or (iii) return of an appropriate portion of any payment made 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 to fit the particular requirements of 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, 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 GOOD WILL 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 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 of which XINK is aware; 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 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 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 expanse, and (iii) sole authority to defend and settle the claim.
9.1 Relationship of the Parties. The relationship of Client to XINK is that of an independent contractor and neither Client nor its agents or employees shall be considered employees or agents of XINK. 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. Client shall not have the right to bind XINK to any obligations to third parties.
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.
9.3 Notices. Any notice, demand, waiver, consent, approval, or disapproval (collectively referred to as “notice”) required or permitted herein shall be in writing and shall be given personally, by messenger, by air courier, by facsimile, or by prepaid registered or certified mail, with return receipt requested, addressed to the parties at their respective addresses and facsimile numbers set forth herein or at such other address as a party may hereafter designate in writing to the other party. A notice shall be deemed received on the date of receipt.
9.4 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws Denmark, without regard to principles of conflicts of laws. Any action, suit or proceeding in connection with this Agreement must be brought against any party in a court of record of the Municipality of Gentofte, Denmark, each party hereby consenting and submitting to the exclusive jurisdiction thereof; and to the fullest extent permitted by law, service of process may be made upon any party, by certified or registered mail, at the address to be used for the giving of notice to such party. Nothing herein shall affect the right of any party to serve process in any manner permitted by applicable law. In any action, suit or proceeding in connection with this Agreement, each party hereby waives any claim Municipality of Gentofte is an inconvenient forum.
9.5 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.
9.6 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. 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.
9.7 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.
9.8 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
9.9 Headings. Headings are for convenience only and shall not be considered in interpreting this Agreement.
9.10 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.
9.11 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 expressly stated in such document.