Terms & conditions
ContentGrid Subscription Agreement
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING AND/OR USING SOFTWARE OR SERVICES FROM XENIT. BY USING CONTENTGRID SOFTWARE OR SERVICES, USER ACCEPTS THIS AGREEMENT AND ACKNOWLEDGES IT HAS READ AND UNDERSTANDS THIS AGREEMENT. AN INDIVIDUAL ACTING ON BEHALF OF AN ENTITY REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF USER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN IT MUST NOT USE CONTENTGRID SOFTWARE OR SERVICES.
This ContentGrid Subscription Agreement (the "Agreement") is between Xenit Solutions nv, a Belgian company with registered offices at Diestsevest 32 B4A, B-3000 Leuven, Belgium and registered in the Register for Legal Entities under VAT number BE 0887.582.365 (“Xenit”), and the purchaser of ContentGrid software as a service who accepts the terms of this Agreement ("Customer") in an Order Form or other purchase document. The effective date of this Agreement (“Effective Date”) is the earlier of the date that Customer accepts this Agreement or first uses Xenit’s software or services.Individually referred to as a “Party” and collectively referred to as the "Parties". WHEREASXenit is an IT company focussing its business on Enterprise Content Management, Document Management and Web Content Management..The Customer is interested in working with the ContentGrid Software, a product developed by Xenit.Xenit will grant the Customer a subscription right on the ContentGrid Software and Services according to the following terms and conditions:
THEREFORE, the Parties agree as follows:
1. Terms of the agreement
The Agreement determines the terms and conditions according to which Xenit grants Subscription Rights on the ContentGrid Software as a Service (SaaS) to the Customer. Cfr later §Duration and §Termination
2. Definitions
Agreement: this agreement and all annexes hereto.
ContentGrid Services: professional services related to the ContentGrid Software.ContentGrid (Software as a Service): the range of software products developed by Xenit and branded under the shared name ContentGrid, comprising of but not limited to a Cloud Native AI Friendly Content Services Platform. Content is made out of structured data (e;g. “records”) and unstructured data (e.g. “documents”). The platform is built to run on a cloud infrastructure and can make use of Artificial Intelligence to improve the ingestion, the retention and the retrieval of content.
Intellectual Property Rights: all intellectual, industrial and other property rights (irrespective of whether these are registered or not), including but not limited to copyrights, related rights, marks, trade names, logos, drawings, models or applications for registration as a drawing or model, patents, patent applications, domain names, knowhow, as well as rights to databases, computer programmes and semi-conductorsOrder Form: a document or set of documents that describes the ContentGrid Software and/or Services that Xenit will provide to Customer (including the applicable subscription rights), and may consist of (a) one or more signed order forms, statements of work, or similar transaction documents, or (b) an order placed by Customer with a Business Partner.
Subscription Right: the right granted to the Customer by Xenit (i) to use the ContentGrid Software and (ii) to obtain support and upgrades in relation to such Software during the Subscription Period.
Subscription Period: the defined period of time of the Subscription as set forth in an Order Form.
Taxes: any form of sales, use, value added or other form of taxation and any fines, penalties, surcharges or interest, but excluding any taxes based solely on the net income of Xenit.
Software as a Service (SaaS)
The ContentGrid Management Platform allows Content Grid application-manager users to define blueprints for their application.
The management platform exposes a Management Console that is to be used by application managers to create application blueprints for an organisation in the context of one or more projects.
A ContentGrid Blueprint defines entities, entity attributes, relationships between entities, data and content access rules and webhooks for ContentGrid applications.
A ContentGrid Entity defines the type for data that can be stored in ContentGrid.
A ContentGrid Entity Attribute is a characteristic of an entity. For example an employee entity might have a Social Security Number (SSN) attribute.
A ContentGrid Entity Relationship captures how entities are related to one another. For example, an owns relationship between a company and a computer. Entities, their attributes and their relationship define an Entity-Relationship (ER) model that is used by ContentGrid to allow the secure storage, ingestion and query/retrieval of data and content.
The ContentGrid Runtime Platform is the place where ContentGrid applications are deployed in order to be used by end-users (via the Application UI) or API clients.
A ContentGrid application allows end-users or API clients to search, read, write and delete data and content stored in the ContentGrid runtime platform.
A ContentGrid document is an instance of an entity attribute of type “Content”. Content attributes are binary files such as PDF, Office documents, multimedia…
A ContentGrid query is any operation that executes a “read” or “delete” on the data and content. This includes: search, browse, visualise, delete,or download entities, attributes and relationships of a ContentGrid Application.
A ContentGrid ingestion is any operation that executes a “write” on the data and content. This includes : upload of data and content as well as the update of a ContentGrid Application.
The ContentGrid Application API is a secured API exposing the functionalities of a ContentGrid application. This API can be integrated with other systems of the client and is also used by the ContentGrid Application UI. All ingestion and query operations are operated via the ContentGrid Application APIs.The ContentGrid Application UI (User Interface) is a secured graphical user interface for ContentGrid end-users.
ContentGrid Cloud Platform is the platform of Xenit to run ContentGrid in SAAS mode. The platform is used to run ContentGrid’s management platform. The runtime platform is also on ContentGrid Cloud platform when the customer doesn’t wish to make use of his own Customer Cloud Platform.Customer Cloud Platform is a platform used by the Customer to run the ContentGrid runtime. In that case the ContentGrid runtime doesn’t run on the ContentGrid Cloud Platform but on another platform managed or owned by the Customer. The Customer Cloud Platform can be realised with “Self Hosting” (private cloud infrastructure) or a public cloud account owned by the Customer (e.g. AWS account, Azure account…)
Is considered a Bug any failure of the Software that results in a complete stop, error traceback or security breach, and is not directly caused by a defective installation or configuration.
Non-compliance with specifications or requirements will be considered as Bugs at the discretion of Xenit (typically, when the Software does not produce the results or performance it was designed to produce, or when a country-specific feature does not meet legal requirements anymore).
Further definitions and descriptions of the content grid concepts can be found in the ContentGrid documentation and reference documents (https://docs.contentgrid.com/).
3. Access to the software
3.1 Subject to Customer's compliance with this Agreement, Xenit grants to Customer, during the Subscription Period: (a) a non-exclusive, non-transferable, non-sublicensable licence to use and test the ContentGrid Management and Runtime and to copy, test, and modify the ContentGrid Application code as identified in the Order Form, solely for Customer's own internal business use and limited to the document,s ingestions, queries, extra terabytes and extra bandwidth designated in the Order Form, as applicable; (b) the rights in the third-party open source software provided with the ContentGrid Software, which rights are set forth in the applicable third-party licences; and (c) a non-exclusive, non-transferable, non-sublicensable licence to use ContentGrid on extra sites for the purpose of backup and disaster-recovery purposes.
3.2 The Customer shall not have the right to sublicense or transfer the Subscription Right to any third party without the prior written consent of Xenit in each individual case.
3.3 The Customer recognises that all Intellectual Property Rights attached to the ContentGrid Software, including all portions, copies or modification of it, are vested with Xenit or a third party that Xenit has entered into an agreement with. The Customer does not acquire any right or title to the ContentGrid Software except the Subscription Right as specified hereunder or via the applicable Order Form. Xenit recognises that all Intellectual Property Rights attached to the artefacts produced by the Customer (Entities, Entity attributes, Entity Relationships, Data and Content/Documents) are vested with the Customer or a third party that the Customer has entered into an agreement with. Xenit does not acquire any right or title to the artefacts produced by the Customer except to process them as required for the performance of this Agreement.
3.4 The Customer will observe Xenit's Intellectual Property Rights at all times and make all reasonable efforts to protect said rights. The Customer will immediately inform Xenit of any infringement of Xenit’s Intellectual Property Rights by third parties of which it becomes aware
The Customer can use the Software hosted on the ContentGrid Cloud Platform. For the ContentGrid runtime, the Customer can choose the Customer Cloud Platform option. The ContentGrid Cloud Platform is hosted and fully managed by Xenit, and accessed remotely by the Customer. With the Customer Cloud Platform option, the Customer instead hosts the ContentGrid runtime on the cloud of their choice, that is not under the control of Xenit.
The ContentGrid runtime code that is generated from a Customer’ blueprint is the ownership of the customer.
The customer has the right to modify and execute the code of his ContentGrid applications but he must be aware that it may break the integration with the Management Platform or Runtime platform mechanisms and it could become impossible to re-deploy, change entities-attributes-relationships definitions, change access rules, manage application users… Xenit doesn't give any guarantee to be willing or to be able to fix problems that would arise from the modification of the generated code. The modification of the code of a ContentGrid application should be performed in collaboration with Xenit or one of its trusted partners in the context of a specific mission.
The Customer agrees to take all necessary measures to guarantee the unmodified execution of the part of the Software that collects statistics into the management platform, including but not limited to the running of an instance, the number of documents, the ingestion statistics (quantity and execution duration), the query statistics (quantity and duration), the database statistics and the OS statistics such as CPU and RAM utilisation.
The data collected is used by ContentGrid’s invoicing and monitoring processes.
Xenit guarantees the strict confidentiality of the data collected on the ContentGrid management platform.
Xenit commits not to disclose individual or named figures to third parties without the consent of the Customer, and to deal with all collected data in compliance with its official Privacy Policy, published at https://contentgrid.com/privacy-policy/
The Customer’s data stored in ContentGrid is encrypted. The access to the Customer data is secured by the IAM and the security rules. Data transfers are secured (http,; sftp….). Xenit doesn’t not have access to the customer’s production data. If Xenit has to access the customer data, this access must be requested and agreed. The access will also be temporary and audited.
Upon expiration or termination of this Agreement, the licence is revoked and the Customer will not have access to the ContentGrid Management Platform anymore.
However he will have the possibility to run the generated code of his ContentGrid applications on his own infrastructure.
Unless a specific agreement has been established between Xenit and the Customer, if the customer data was stored on the ContentGrid Cloud platform, the customer will have 3 months to download his application code, data and content. After that period Xenit will erase all the Customer’s data from the ContentGrid Cloud Platform.
4. Services
4.1 Bug fixing service
For the duration of this Agreement, Xenit commits to making all reasonable efforts to remedy any Bug of the Software submitted by the Customer through the appropriate channel (typically, the web form or phone numbers listed on contentgrid.com, or when working with a Xenit Partner, the channel provided by the partner), and to start handling such Customer submissions within 2 business days
As soon as the Bug is fixed an appropriate remedy will be communicated to the Customer. The customer might have to re-deploy the application to see the bug fixed on the runtime platform.
When a Bug is fixed, Xenit commits to fixing the Bug in all more recent versions of the Software.
Both parties acknowledge that as specified in the licence of the Software and in the 7.3 Limitation of Liability section of this Agreement, Xenit NA cannot be held liable for Bugs in the Software.
4.2 Security Update Service
4.2.1 Customer Cloud Platform
For the duration of this Agreement, Xenit commits to sending a “Security Advisory” to the Customer for any security Bug that is discovered in the Software, at least 2 weeks before making the Security Advisory public, unless the Bug has already been disclosed publicly by a third party. Security Advisories include a complete description of the Bug, its cause, its possible impacts on the Customer’s systems, and the corresponding remedy for each Covered Version.
The Customer understands that the Bug and the information in the Security Advisory must be treated as Confidential Information as described in 6.4 Confidentiality during the embargo period prior to the public disclosure.
4.2.2 ContentGrid Cloud platform
Xenit commits to apply the security remedies for any security Bug discovered in a version of the Software hosted on ContentGrid Cloud Platform, on all systems under its control, as soon as the remedy is available, without requiring any manual action of the Customer.
4.3 Upgrade Services
When the runtime is on the ContentGrid Cloud platform, software upgrades will be managed by Xenit.
When the ContentGrid Runtime is running on a Customer Cloud Platform, the Customer will have to upgrade the runtime infrastructure before re-deploying a new updated version of an application. Xenit will provide the detailed specifications for each ContentGrid version.
While ContentGrid is built to ensure maximum backwards compatibility, it is possible that breaking changes arise from the deployment of a new version of an application (e.g. API changes, new mandatory fields…). Therefore tests are highly recommended before deploying a new version of a Content Grid application in production.
4.4 Cloud Hosting Services
For the duration of this Agreement, when the Customer chooses to use the ContentGrid Cloud Platform, Xenit SA commits to providing at least the following services:
• Choice of multiple hosting for the ContentGrid Cloud in Europe: Paris, Amsterdam, Warsaw.
• Hosting in Tier-III data centres or equivalent, with 99.9% network uptime
• Grade A SSL (HTTPS) Encryption of communication
• Fully automated, verified backups, replicated in multiple regions
• Disaster Recovery Plan, tested regularly
The details of the Cloud Hosting Services are described on the Service Level Agreement page at https://www.contentgrid.com/cloud-sla.
4.5 Support Services
Scope
For the duration of this Agreement, the Customer may open an unlimited number of support tickets free of charge, exclusively for questions regarding Bugs (see 4.1 Bug Fixing Service) or guidance with respect to the use of the standard features of the Software and Covered Extra Modules.
Other assistance requests, such as questions related to development or customizations may be covered through the purchase of a separate service agreement. In case it’s not clear if a request is covered by this Agreement, the decision is at the discretion of Xenit.
Availability
Tickets can be submitted via Xenit’s service desk the web forms (https://xenitsupport.jira.com/servicedesk/customer/portals) or phone numbers subject to local opening hours (+32 16 891 801).
4.6 Working with a Partner
For bug fixes, support and upgrade services, the Customer may either work with a ContentGrid Partner as the main point of contact, or work with Xenit SA directly.
5 Charges and Fees
5.1 Standard charges
The amount of the subscription fee is determined in the Order Form. Prices are fixed for the first year of the Subscription Period (as determined in the Order Form. Additional Subscription Rights and renewals are always at the then current prices and support conditions. Subscription prices may change from time-to-time and will be communicated to the Customer with 2 months prior notice.
The subscription fee will be due and payable as of the moment of receipt of an Order Form from the Customer, at which time Xenit will issue an invoice to the Customer for the amounts indicated in the Order Form. Customers will pay such Fees no later than thirty (30) days from the date of the invoice. New invoices will be issued at the anniversary of the subscription fee as indicated in the Order Form, at the then current prices.
The Subscription Right granted under clause 3.1 is strictly conditional upon the full payment of the subscription fee.
The standard charges for the ContentGrid Enterprise subscriptions are based on:
- the number of “documents”
- the number of “ingestions”
- the number of “queries”
- the extra storage used (the portion exceeding the included storage)
- the extra bandwidth used (the portion exceeding the included bandwidth)
The standard charges are on a “pay per use” basis. The price calculator allows the customer to predict his ContentGrid licensing cost. The ContentGrid console provides a cost dashboard where the Customer can consult the past and current monthly costs. In the console the customer can set up alerts to be notified in the case the ContentGrid usage cost reaches a given amount.
When the runtime platform is self-hosted, the ContentGrid platform must be technically able to retrieve usage statistics in order to make the invoice. This requires APIs (https) and/or File Transfer (sftp) communication between the ContentGrid management platform and the self-hosted runtime platform.
The ContentGrid service can be invoiced monthly in “prepaid” (with a regularization when the real usage is higher that the forecasted usage) or in post-paid (in that case the invoice is based on the measured usage).
5.2 Taxes
All Fees are exclusive of Taxes. The Customer will pay Xenit an amount equal to any Taxes arising from or relating to this Agreement or an applicable Order Form which are paid by or are payable by Xenit. If the Customer is required to withhold or deduct any portion of the payments due to Xenit, the Customer will increase the sum payable to Xenit by the amount necessary so that Xenit receives an amount equal to the sum it would have received had the Customer made no withholdings or deductions.
6 Conditions of Services
6.1 Customer Obligations
The Customer agrees to:
- Pay Xenit any applicable charges for the Services of the present Agreement, in accordance with the Order Form
- When on the Customer Cloud, take all measures necessary to guarantee the unmodified execution of the part of the Software that collects ContentGrid Enterprise Edition usage, as described in 3 Access to the Software
- Appoint 1 dedicated Customer contact person for the entire duration of the Agreement;
provide written notice to Xenit 30 days before changing their main point of contact to work with a Xenith Partner, or to work with Xenit directly.
Use anti-virus software in order to avoid ingesting viruses in ContentGrid and in the unfortunate case that a virus has been ingested, detect and eliminate the infected content. When using the ContentGrid Cloud Platform If the Customer isn’t able to ensure that an anti-virus software is used at his side, the Customer will subscribe to ContentGrid’s antivirus service and pay the associated fee. - Provide written notice to Xenit 30 days before changing their main point of contact to work with a Xenith Partner, or to work with Xenit directly.
Use anti-virus software in order to avoid ingesting viruses in ContentGrid and in the unfortunate case that a virus has been ingested, detect and eliminate the infected content. When using the ContentGrid Cloud Platform If the Customer isn’t able to ensure that an anti-virus software is used at his side, the Customer will subscribe to ContentGrid’s antivirus service and pay the associated fee. - Use anti-virus software in order to avoid ingesting viruses in ContentGrid and in the unfortunate case that a virus has been ingested, detect and eliminate the infected content. When using the ContentGrid Cloud Platform If the Customer isn’t able to ensure that an anti-virus software is used at his side, the Customer will subscribe to ContentGrid’s antivirus service and pay the associated fee.
When the Customer chooses to use the Cloud Platform, the Customer further agrees to:
• take all reasonable measures to keep their user accounts secure, including by choosing a strong password and not sharing it with anyone else;
• make a reasonable use of the Hosting Services, to the exclusion of any illegal or abusive activities, and strictly observe the rules outlined in the Acceptable Use Policy published at https://www.contentgrid.com/acceptable-use.
When the Customer chooses the Customer Cloud option, the Customer further agrees to allow secure remote access (APIs, sFTP) to Runtime Platform for
- statistics (used for invoicing and monitoring dashboards)
-(re)deployment of applications versions from the management platform
Destruction of application versions from the management runtime
The Customer represents and warrants that each and any of its users shall use the ContentGrid Software in accordance with the terms of this Agreement, and more in particular in accordance with the Subscription Right. The Customer takes full responsibility for its users.
The Customer represents and warrants that nothing (neither a legal obligation, nor any prior contractual obligation towards any third party) prevents it from entering into or performing the Agreement.
6.2 Publicity
Neither Party will, without the other Party’s prior written consent, make any news release, public announcement, denial or confirmation of this Agreement, its value, or its terms and conditions, or in any manner advertise or publish the fact of this Agreement.
Notwithstanding the above, Xenit may use Customer’s name and logo, consistent with Customer’s trademark policies, on Xenit’s customer lists as published in on-line and off-line publications.
Additionally, Customer agrees to make representatives available, on an occasional basis, to serve as a non-public reference to prospective Xenit customers to discuss Customer’s experience working with Xenit.
Customer also agrees to work with Xenit in developing and publishing occasional case studies and press releases that describe its use of the ContentGrid Software.
6.3 Confidentiality
6.3.1 Each Party hereby explicitly recognizes that all information received from the other Party during the performance of the Agreement, any source code of the ContentGrid Software included, is confidential. Each Party shall not disclose this information to any third party or use it for other purposes than the performance of this Agreement, without the prior written consent of the other Party.
6.3.2 The confidentiality obligation does not apply to information which:
a) is in the public domain at the time of disclosure;
b) becomes part of the public domain after disclosure otherwise than through an act or omission of, or breach of this Agreement by the Recipient;
c) was in the possession of the Recipient in written or other documentary form already at the time of disclosure without any restriction on disclosure and was not acquired directly or indirectly from Disclosing party;
d) is disclosed to the Recipient from a third party who has the right to make such disclosure; or
e) is independently developed by Recipient prior to this Agreement or is independently developed by Recipient without any use of information provided by the Disclosing party;
The Recipient shall have the burden of proof as to any claimed exception to the obligations of confidentiality and non-use provided herein
6.3.3 The provisions of this section remain applicable for a period of 5 years following the termination or expiration of this Agreement.
6.4 Data Protection
The Customer represents and warrants to comply with all applicable data protection regulations that impose obligations on controllers of personal data, such as the obligations to inform the data subjects of the processing, to assess the security measures in the light of the sensitivity of the personal data in question, to file the processing with data protection authorities etc. Xenit, as identified in this Agreement, will only process the Customer’s personal data as a data controller if and when required for the performance of the Agreement, including specifically for the purposes of the lawful management and execution of the Agreement. The Customer will hold Xenit harmless against all claims of third parties based on an (alleged) infringement of the representations in this article.
Definitions “Personal Data”, “Controller”, “Processing” take the same meanings as in the Regulation (EU) 2016/679 and the Directive 2002/58/EC, and any regulation or legislation that amends or replaces them (hereafter referred to as “Data Protection Legislation”)
Processing of Personal Data
The parties acknowledge that the Customer’s ContentGrid environments may contain Personal Data, for which the Customer is the Controller. This data will be processed by Xenit when the Customer instructs so, by using any of the Services that require a database (e.g. the Cloud Hosting Services), or if the Customer transfers their database or a part of their database to Xenit for any reason pertaining to this Agreement.
This processing will be performed in conformance with Data Protection Legislation. In particular, Xenit commits to:
(a) only process the Personal Data when and as instructed by the Customer, and for the purpose of performing one of the Services under this Agreement, unless required by law to do so, in which case Xenit will provide prior notice to the Customer, unless the law forbids it ;
(b) ensure that all persons within Xenit authorised to process the Personal Data have committed themselves to confidentiality ;
(c) implement and maintain appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure ;
(d) forward promptly to the Customer any Data Protection request that was submitted to Xenit with regard to the Customer’s database ;
(e) notify the Customer promptly upon becoming aware of and confirming any accidental, unauthorised, or unlawful processing of, disclosure of, or access to the Personal Data ;
(f) notify the Customer if the processing instructions infringe applicable Data Protection Legislation, in the opinion of Xenit;
(g) make available to the Customer all information necessary to demonstrate compliance with the Data Protection Legislation, allow for and contribute reasonably to audits, including inspections, conducted or mandated by the Customer;
(h) permanently delete all copies of the Customer’s database in possession of Xenit, or return such data, at the Customer’s choice, upon termination of this Agreement, subject to the delays specified in Xenit’s Privacy Policy (https://www.contentgrid.com/privacy) ;
With regard to points (d) to (f), the Customer agrees to provide Xenit with accurate contact information at all times, as necessary to notify the Customer’s Data Protection responsible.
Subprocessors
The Customer acknowledges and agrees that in order to provide the Services, Xenit may use third-party service providers (Subprocessors) to process Personal Data. Xenit commits to only use Subprocessors in compliance with Data Protection Legislation. This use will be covered by a contract between Xenit and the Subprocessor that provides guarantees to that effect. Xenit’’s Privacy Policy, published at https://www.contentgrid.com/privacy contentgtrid.com/privacy provides up-to-date information regarding the names and purposes of Subprocessors currently in use by Xenit for the execution of the Services.
6.5 Duration of the Agreement
6.5.1 The Agreement shall become effective on the date of signing of the Agreement and remain in force and effect for the Subscription Period as indicated in the Order Form.
6.5.2 This Agreement is tacitly renewed for as long as any Order Form is still outstanding (i.e. as long as the Customer derives Subscription Rights under an Order Form that was concluded under this Agreement).
A renewal is always subject to the then current prices.
6.6 Termination
In the event that either Party fails to fulfil any of its obligations arising herein, and if such breach has not been remedied within 30 calendar days from the written notice of such breach, this Agreement may be terminated immediately by the non-breaching Party.
Further, Xenit may terminate the Agreement immediately in the event the Customer fails to pay the applicable fees for the Services within 21 days following the due date specified on the corresponding invoice, and after minimum 3 reminders.
6.6.1 Each Party may immediately and without giving prior notice or having to pay compensation, terminate the Agreement based on a serious failure of the other Party to perform.
A serious failure to perform shall include:
(i) the commission of an offence by the other Party inside or outside the framework of the Agreement;
(ii) the inability of the other Party to comply with the provisions of this Agreement within 30 calendar days of the receipt of a notice of default by registered letter;
(iii) the liquidation or court composition of the other Party;
(iv) regular payment problems of the Customer (i.e. when at least two of Xenit’s invoices have not been paid on their due date by the Customer).
6.6.2 Each cancellation or termination of this Agreement, regardless of the reason, must be notified by registered letter.
7 Warranties, Disclaimers, Liability
7.1 Warranties
In the event that either Party fails to fulfil any of its obligations arising herein, and if such breach has not been remedied within 30 calendar days from the written notice of such breach, this Agreement may be terminated immediately by the non-breaching Party.
Further, Xenit may terminate the Agreement immediately in the event the Customer fails to pay the applicable fees for the Services within 21 days following the due date specified on the corresponding invoice, and after minimum 3 reminders.
7.1.1 Each Party may immediately and without giving prior notice or having to pay compensation, terminate the Agreement based on a serious failure of the other Party to perform.
A serious failure to perform shall include:
(i) the commission of an offence by the other Party inside or outside the framework of the Agreement;
(ii) the inability of the other Party to comply with the provisions of this Agreement within 30 calendar days of the receipt of a notice of default by registered letter;
(iii) the liquidation or court composition of the other Party;
(iv) regular payment problems of the Customer (i.e. when at least two of Xenit’s invoices have not been paid on their due date by the Customer).
7.1.2 Each cancellation or termination of this Agreement, regardless of the reason, must be notified by registered letter.
7.1 Warranties
Xenit represents and warrants that: (a) it will use reasonable skill and care in providing contracted Support; (b) the Support will be performed in a professional and workmanlike manner by qualified personnel; (c) it has the authority to enter into this Agreement with User; and (d) Xenit has taken commercially reasonable measures to ensure the Software does not, at the time of delivery to User, include malicious mechanisms or code designed to damage or corrupt the Software.
Except as expressly provided in the previous paragraph section 4.1 Xenit does not guarantee that the use of the software or support will be uninterrupted, error free, or that Xenit will correct all software errors. customer’s exclusive remedy and Xenit’s entire liability will be to undertake commercially reasonable efforts to remedy the support deficiency, supply a temporary fix, or make an emergency bypass. If Xenit cannot substantially correct a breach in a commercially reasonable manner, the Customer user may terminate the relevant software subscription and receive a pro rata refund of fees paid for the remaining subscription period as of the effective date of the termination.
Xenit owns the copyright or an equivalent1 on 100% of the code of the Software, and confirms that all the software libraries required to use the Software are available under a licence compatible with the licence of the Software.
For the duration of this Agreement, Xenit commits to using commercially reasonable efforts to execute the Services in accordance with the generally accepted industry standards provided that:
• The Customer’s computing systems are in good operational order and, on a Customer Cloud, that the Software is installed in a suitable operating environment;
• The Customer provides adequate troubleshooting information and, for a Customer Cloud setup, any access that Xenit may need to identify, reproduce and address problems;
• The Customer will allow Xenit access to its premises and/or IT infrastructure, if this access is useful for Xenit to analyse or solve problems or incidents that have occurred in relation to the Customer’s use of the ContengGrid Software;
• all amounts due to Xenit have been paid.
The Customer’s sole and exclusive remedy and Xenit’s only obligation for any breach of this warranty is for Xenit to resume the execution of the Services at no additional charge.
7.2 Disclaimers
Except as expressly provided herein, neither party makes any warranty of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law.
Xenit does not warrant that the Software complies with any local or international law or regulations.
7.3 Limitation of Liability
7.3.1 Except to the extent of willful misconduct, neither Party shall be held liable for any consequential damage such as loss of expected profit, reduction in turnover, increased operational costs, loss of clients, loss of data etc., suffered by the other Party, or for third party claims against the other Party, arising from an error or negligence of the first Party relating to the Agreement.
7.3.2 In the event that the ContentGrid Software would infringe any third party Intellectual Property Rights, the Customer’s sole remedy will be, and Xenit will at its option:
• obtain the right for the Customer to continue to use the ContentGrid Software,
• modify the ContentGrid Software so that it is non-infringing, or
• refund the Customer’s money paid under this Agreement.
In the event of a claim, the Customer must promptly notify Xenit in writing.
7.3.3 In any other case Xenit’s liability will be limited to 50% of the Annual Subscription fee effectively paid for a given period by the Customer in connection with the Subscription Right giving rise to the claim, in the proportion of the Cores, Named Users, Documents and/or API Calls affected by the damage.
7.4 Force Majeure
Neither party shall be liable to the other party for the delay in any performance or failure to render any performance under this Agreement when such failure or delay finds its cause in a case of force majeure, such as governmental regulations, fire, strike, war, flood, accident, epidemic, embargo, appropriation of plant or product in whole or in part by any government or public authority, or any other cause or causes, whether of like or different nature, beyond the reasonable control of such party as long as such cause or causes exist.
8 General Provisions
8.1 Governing Law
8.1.1 The validity, interpretation, and implementation of this Agreement shall be governed by Belgian law.
8.1.2 All disputes with respect to the Agreement shall be submitted to the competent Court in Brussels.
Before instituting a procedure before the Court, Parties will, however, attempt to negotiate in good faith in order to reach an out-of-court settlement.
8.2 Severability
TBC
