Platform terms & conditions
All capitalized terms used but not defined herein shall have the meanings ascribed to them in the Exatom Order Form (“Order”).
Exatom grants Customer a non-exclusive and non-transferable right to access and use through a web interface the Exatom software-as-a-service platform (“Platform”) for the Site. Exatom will provide a tag (“Tag”) which Customer will deploy and maintain operational on the Site for transmission of transactional data to the Platform (“Data”). Upon Exatom’s request, Customer will promptly update or remove the Tag. Customer is responsible for the configuration of any third party services to which Customer wishes to connect the Platform (“Third Party Services”).
2. Additional Services
If specifically set out in the Order, Exatom will provide Customer with Additional Services in accordance with the specifications detailed in the Order. Any changes to the scope of the specifications shall result in an amendment to the Order. Exatom warrants that the Additional Services will be performed in a workmanlike manner in accordance with industry practices. As Customer’s exclusive remedy for any claim under this warranty, Customer shall notify Exatom in writing of its claim within thirty (30) days of Exatom’s completion of the Additional Services and, provided that such claim is determined to be Exatom’s responsibility, Exatom shall re-perform the applicable service. Exatom’s entire liability for claims in connection with the Additional Services and Customer’s exclusive remedy for any breach of the warranty set forth in this Section shall be the re-performance of the applicable service.
As from the signing date of the Order, Customer shall pay to Exatom the monthly License Fee and the Service Fee set forth on the Order. All amounts are exclusive of VAT (or any similar tax) which Customer will pay (if applicable) at the rate from time to time prescribed by law. Payment of Exatom’s invoices will be made within thirty (30) days of the invoice date by bank transfer in EUR free of any deductions. All invoices shall be deemed accepted unless disputed in good faith within twenty (20) days after the invoice date. If an invoice is disputed, Customer shall pay the undisputed portion of the invoice when due. Any amount due but not paid in full on the due date shall automatically and without prior notice be increased with an interest for late payment of one percent (1%) per month. This amount will, by way of indemnity, automatically and without prior notice be increased by ten percent (10%) with a minimum of one hundred EUR (€100) from the day following the due date of the invoice, in addition to the principal amount and the interest for late payment. In addition to any other rights under this agreement, Exatom shall have the right to suspend the use of the Platform and the performance of Additional Services in case of late payment. Customer will fully reimburse Exatom the costs of notice, collection and recovery (including attorney’s fees and expenses) made in connection with any unpaid invoice. Customer’s obligation to make payment of the License Fee will not be affected by any non-operationality of the Tag or non- or malperformance by Third Party Services for which Exatom is not responsible. Exatom may increase the License Fee once per year by no more than ten percent by giving thirty (30) days prior notice to Customer (including through the Platform), provided that if the increase exceeds the aggregate percentage increase of the Belgian Consumer index since the previous fee increase Customer will have the right to terminate the agreement by giving one (1) month prior written notice to Exatom.
Customer will maintain appropriate administrative, technical and physical security safeguards with respect to its credentials to access the Platform. The Platform provides the ability for Customer to generate credentials for the users of Customer, its agents, suppliers and – in case Customer is an agency – its clients to use the Platform in relation to the Site. Customer has the obligation to create distinct credentials for each physical person that is given access to the Platform by Customer. Credentials may not be shared between users and Customer will notify Exatom immediately if it learns of any unauthorized use of any of its credentials. Customer agrees to (i) not disclose to any third party any credentials other than to its agents, suppliers and – in case Customer is an agency – its clients that are contractually bound to terms no less stringent than those contained herein; (ii) not decompile, disassemble, analyze or examine the Platform or otherwise attempt to learn the source code, structure, algorithms or ideas underlying the foregoing (except to the extent allowed by mandatory laws), e.g. for the purpose of reverse engineering, re-engineering or rebuilding a software or service with the same or similar functionalities; (iii) not attempt to access any systems, programs or data of Exatom or its representatives, employees, contractors or agents to which no access is granted hereunder or that are not required for Customer’s activities in connection with this agreement; (iv) not use any device or software to interfere or attempt to interfere with the proper operation of the Platform; (v) not to generate excessive data traffic though Tags on the Site which would endanger the stability or proper operation of the Platform; and (vi) abide by all applicable laws and regulations.
5. Intellectual Property Rights
Exatom and its third party licensors retain all title to, and except as expressly and unambiguously licensed herein, all rights and interest in the Platform and the Tag and all copies, versions, enhancements and derivative works thereof (by whomever produced and including those resulting from the Additional Services) and all related documentation and materials and any and all intellectual property rights therein. Except for the limited license granted herein, nothing herein shall be construed as Exatom granting to Customer any right, title or interest in or to the Platform or Tag or any patent, trade secret or other intellectual property rights of Exatom. Customer owns the Content and the Data and hereby grants Exatom a non-exclusive, worldwide, royalty-free and fully paid-up license, with the right to sublicense to third party suppliers, to use and reproduce the Content and the Data solely for the provision of services to Customer. “Content” shall mean text, graphics, photographs, video, audio and other information submitted through the Platform. Customer further grants Exatom a non-exclusive, worldwide, perpetual, royalty-free and fully paid-up license to use and reproduce any Data that does not qualify as personal data for analytical, statistical, benchmarking and product improvement purposes, it being understood that a disclosure of any outcome of such use may not identify Customer.
6. Term and Termination
This agreement enters into force on the Commencement Date for an initial period as determined in the Order (“Initial Term”). This agreement shall automatically renew for successive periods equal in duration to the Initial Term (each, a “Renewal Term”) unless one party notifies the other in writing at least one (1) month prior to the end of the Initial Term or any Renewal Term that it does not wish to renew this agreement. During the Initial Term, Customer may only terminate this agreement for Exatom’s non-remedied breach or bankruptcy as stated below. The notice periods set out hereinabove will start on the first day of the month following a party’s receipt of the notice letter. A party may terminate this agreement upon written notice and without court intervention in the event that (a) the other party fails to remedy a breach of this agreement within thirty (30) days after written notice by the non-defaulting party; or (b) the other party files a petition in bankruptcy or proceedings in bankruptcy are instituted against it, or any court assumes jurisdiction of such party and its assets pursuant to proceedings under any bankruptcy or reorganization act, or a receiver is appointed of that party’s assets or that party makes an assignment for the benefit of its creditors. Upon termination, all licenses granted herein shall terminate and Exatom may erase all Content and Data within thirty (30) days from the effective terminate date. Such termination shall be without prejudice to any other rights or remedies of the parties under this agreement or applicable law. Termination shall not relieve either party of its obligations which by their nature are intended to survive termination. Exatom may without notice suspend the access to and use of the Platform and/or delete, disable access to or modify any Content if it is unlawful, vulgar, profane, pornographic or obscene in Exatom’s sole discretion or if it infringes upon third party rights or if Customer is in breach of Section 4. Exatom reserves the right to change, to modify and, subject to reasonable notice, to discontinue any part of the Platform at any time.
Customer acknowledges that any information supplied by or on behalf of Exatom (including but not limited to the terms of this agreement and the Platform) is confidential and undertakes to keep secret any such information until it enters the public domain through no fault of Customer. Customer shall not without Exatom’s prior written consent disclose such information to any third party, nor use the same for any purpose other than exercising its rights under this agreement. Customer shall take all steps necessary to prevent any of the information becoming known to unauthorized third parties other than its agents and suppliers subject to such persons entering into confidentiality agreements no less restrictive than the provisions hereof.
Customer warrants that (i) it has the right to transmit the Content and Data through the Platform and have such Content and Data used by Exatom as set out herein, and (ii) the Content shall neither infringe upon third party rights or violate any law nor be vulgar, profane, pornographic or obscene. Other than as expressly set forth herein, Exatom does not make any express or implied warranties, conditions, or representations to Customer with respect to the Platform, the Additional Services or otherwise regarding this agreement, whether oral or written. Without limiting the foregoing, any warranty or condition of merchantability, the warranty against infringement, and the warranty or condition of fitness for a particular purpose, quality, accuracy or availability are expressly excluded and disclaimed. Exatom does not warrant that the use of the Platform shall be uninterrupted or error-free, but will use its reasonable efforts to mitigate any serious Platform related incidents of which it gains knowledge.
To the maximum extent permitted by law, Exatom will not be liable for (i) any amounts in excess of the aggregate of the License Fees paid to Exatom hereunder for the Platform during the six months’ period prior to the date the cause of action arose, (ii) any lost data or indirect, incidental, or consequential damages of any character, including, without limitation, damages for loss of goodwill, work stoppage, device failure or malfunction, or (iii) the cost of procuring substitute products, services or technology.
Customer shall indemnify, defend and hold Exatom harmless from and against all third party claims, suits and proceedings and the resulting damages, losses, costs, expenses and penalties relating to the Content or Customer’s breach of the law or this agreement. The foregoing will not apply to the extent a third party claim is caused by Exatom’s negligence or willful misconduct.
In the event that any provision hereof shall be held to be invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect. This agreement is governed by and construed under the laws of Belgium, without regard to its conflicts of law principles. The parties agree that any legal proceeding with respect to or arising under this agreement shall be brought exclusively in the Dutch speaking Courts of Brussels, Belgium. Exatom has the right to disclose any Customer information to law enforcement authorities, government officials or a third party, as Exatom believes is reasonably necessary to enforce or verify compliance with this agreement. This agreement may not be modified or amended except by a writing signed by the parties. The failure of either party to enforce any provision of this agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this agreement. In case a provision of the Order is in direct conflict with a provision of these terms, the provision of the Order will prevail.