Jexia Terms and Conditions
THESE JEXIA TERMS AND CONDITIONS (‘ TERMS ’) ARE BETWEEN YOU (‘ CUSTOMER ’) AND JEXIA COMPANY B.V. A PRIVATE COMPANY WITH LIMITED LIABILITY UNDER THE LAWS OF THE NETHERLANDS, HAVING ITS OFFICES IN APELDOORN (DUTCH CHAMBER OF COMMERCE NUMBER: 61968951) (‘ JEXIA ’), AND GOVERNS YOUR USE OF THE SERVICES AND ITS CONTENT, IF AND TO THE EXTENT MADE AVAILABLE TO YOU FROM TIME TO TIME AND COMPRISE THE ENTIRE TERMS UNDER WHICH JEXIA WILL PROVIDE CUSTOMER WITH SERVICES AND OTHER SERVICES.
BY ACCESSING, BROWSING, OR OTHERWISE USING THE SERVICES MADE AVAILABLE THROUGH THIS WEBSITE (WHICH INCLUDES OR MAY INCLUDE THE PLATFORM, JEXIA CLOUD SERVICES, OTHER SERVICES AND INFORMATION, WHETHER FROM JEXIA OR THIRD PARTIES), YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS AND TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS. IF YOU WISH TO USE THE SERVICES, YOU NEED TO TICK THE BOX THAT YOU AGREE TO THESE TERMS, AND CLICK ‘SUBMIT’. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT TICK THE BOX, AND DO NEITHER USE THE SERVICES. THANK YOU.
‘Application’: any cloud based application developed by Customer (not being a third party application) by using the Services, including any source code written by Customer made available or to be made available by using the Services, and hosted via the internet using the Jexia Cloud Services, solely for the normal operating of business of Customer and Customer’s users under the conditions of these Terms;
‘Application Service’: a software functionality or a set of functionalities that run(s) as a service developed and made available by Jexia through a prescribed interface related to the Jexia Cloud Services;
‘Customer ’: any person or legal entity with whom Jexia wishes to enter into, enters into or has entered into a legal relationship;
‘Fee’: the Fees due an dowed by Customer to Jexia as consideration for the Services or otherwise arising from as described in these Terms;
‘Jexia Cloud Services’: being the Jexia platform-as-a-service made available or to be made available by Jexia or on behalf of Jexia to Customer in any way by means of the internet in general and the Platform in particular (not being Other Services);
‘Other Services’: all services of whatever nature, including but not limited to Support and (custom) development services, to be provided by and/or on behalf of Jexia or related affiliates of Jexia to Customer, that are not Jexia Cloud Services;
‘Platform’: the platform is owned and developed by Jexia, and provides cloud based platform services made available by Jexia in connection with the Services, that will facilitate Customer to storage, develop and run Applications, use Application Services and Projects in development or production environment;
‘Project’: a Jexia (cloud or pro cloud) project created by Customer with the possibility to add and/or build and run one or more Applications and Application Services with a central billing account. The number of Applications and Application Services created in a Project and the usage of resources are limited to the agreed Fees;
‘Services’: Jexia Cloud Services as well as all Other Services;
‘Support’: a part of Other Services, concerning which Customer may initiate questions, queries and incidents through the support channel (currently included by a Project in production mode using the Jexia Pro Cloud plan or otherwise upon request) functions made available by Jexia through the Jexia Cloud Services, as well as through e-mail support. Support is made available during Business Days (from 06.00 until 18.00 CET, except for weekends and national holidays in the Netherlands) with a target response time for critical issues of four (4) hours.
2. TERMS AND SERVICES
2.1 Customer and Jexia herewith agree that Jexia will provide Customer with certain Services from time to time and on a case to case basis with regard to the Jexia Cloud Services, all this in accordance with the provisions of these Terms, which will be accepted by Customer prior to the commencement of any use and contributions of (any part of) the Services arises. These Terms shall unconditionally and always apply between Customer and Jexia concerning any and all of the Services.
2.2 This agreement shall be entered into for a fixed time and shall have an initial duration of one (1) calendar month from the moment Jexia provides the Services to Customer. Thereafter, the agreement is renewed automatically, each time for a period of one (1) calendar month, or as indicated otherwise, unless and until it is (earlier) terminated by a Party at the end of a calendar month.
2.3 Upon acceptance of these Terms by creating an account and/or upon payment of the initial or subsequent Fees related to a Project in production (collectively:‘ EffectiveDate’), Jexia will make reasonable efforts to make available the Jexia Cloud Services and other content of the Services to facilitate Customer to store, develop and run Projects and Applications, in a development or production environment. Jexia grants Customer a right to use the Jexia Cloud Services, free of charge without any warranties, for development of Projects and Applications in a development environment in case of the Jexia Cloud plan (Jexia Pro Cloud is excluded from this privilege). Customer shall from time to time due and owe a Fee for resources calculated per project. Customer shall not develop multiple Projects to simulate or act as a single Project or otherwise access the Jexia Services in a manner intended to avoid incurring Fees. Access to and use of the Jexia Cloud Services will lapse, if Customer does not pay the subscription Fees or upon termination, without any refund of prepaid Fees. Customer confirms the accuracy of the data supplied to Jexia and bears the risk of any financial, development and other consequences that may arise or occur in any way from using the Jexia Cloud Services.
2.4 All Jexia Cloud Services and content on the Platform shall be made available on an ‘as-is’ basis and considered to be accepted unconditionally at Effective Date. Jexia aims at achieving availability of Jexia Cloud Services of twenty-four (24) hours a day, seven (7) days a week, except the planned (maintenance and related) ‘down-time’ of the Jexia Cloud Services. Any planned maintenance by Jexia will where possible be announced by Jexia, and where possible, take place outside of normal Business Days. However, Jexia is entitled to perform any necessary maintenance at any time at the discretion of Jexia.
2.5 The warranties set forth in Articles 2.3 and 2.4 are the sole warranties made by Jexia. Jexia expressly disclaims and Customer hereby expressly waives, all other warranties, express or implied, including, without limitation, warranties of merchantability and fitness for a particular purpose. Jexia does not warrant and specifically disclaims any representations that the Services shall meet Customer’s requirements or that the operation of the Services and/or its use shall be uninterrupted or error-free, or that defects in the Services, if any, shall be corrected. Jexia’s limited warranty set forth herein is in lieu of all liabilities or obligations of Jexia for damages arising out of or in connection with the use of the Services. Except for the abovementioned warranties, the entire risk as to the use, quality and performance of the Services are with Customer, who explicitly acknowledges that the Services are ‘as is’. Any use of the Services by or on behalf of Customer and any (direct and indirect) consequences thereof are at the expense and risk of Customer.
2.6 Customer and Jexia agree that Jexia will render certain Other Services on behalf of Customer, all this in accordance with the provisions in these Terms. Customer will owe the related additional Fees as described on the website and these Terms, or otherwise agreed upon in writing between Parties. The Other Services will be rendered at a location to be determined by Jexia and/or Customer will provide remote access when required, unless it has been agreed otherwise in writing between Parties.
2.7 Services (including but not limited to services with open source licenses) provided by a supplier the terms and conditions of the said supplier or third party shall apply to the related Services of the supplier(s) or third parties, replacing the provisions herein that deviate from those supplier or third party terms and conditions. Customer shall accept the said terms and conditions of such suppliers or third parties, which will be provided upon first written request by Customer, except where these were already provided together with the Services. If and insofar as the said terms and conditions of this supplier are deemed not to apply to the relationship between Customer and Jexia or are declared inapplicable, for any reason whatsoever, the provisions of these Terms shall apply, with the exception of the previous two sentences. Jexia is not liable for damage which is the consequence of failures of such suppliers or third parties. The Customer hereby authorizes Jexia to accept any limitations of liability of suppliers or third parties on the behalf of Customer.
3. FEE AND PAYMENT
3.1 Customer shall be due and pay a monthly subscription Fee(s) in advance in accordance with the Services which the Customer has chosen as described in the most current pricelist available on Jexia.com, in accordance with the provisions of these Terms or as agreed otherwise. The subscription Fee will be calculated per project and prorated for the first month of the initial term.
3.2 Customer shall owe Fees for the Other Services chosen by Customer, which will be payable periodical, according to the most current pricelist available on Jexia.com and annually updated by Jexia for said Other Services.
3.3 All rates, prices and other fees shall be expressed in Euro (EUR), are net, and shall be exclusive of VAT as well as withholding and other taxes and levies due under applicable law. If you are based in the United States, then all rates, prices and other fees shall be expressed in US Dollars (USD), are net and shall be exclusive of all sales and related taxes as well as withholding and other taxes and levies due under applicable law. Payment shall take place without any set-off, deduction or suspension. All rates, prices and fees of Jexia will be paid integrally in accordance with the terms of payment and other financial (digital) transaction terms which are available on the Platform, for example including but not limited to credit card and other payment services.
3.4 Jexia is authorized to adjust the applicable Fees within reasonable limits. Jexia will publish the increase on its website not later than thirty (30) calendar days prior to take effect.
3.5 If Customer does not pay the amounts due within the respective payment term, then Customer shall be in default. In the event of a default (i) Customer shall be due and pay to Jexia the amount due accumulated with interest of at least one and a half (1.5) percent per month, as well as debt collection costs, and (ii) Jexia (in addition to the other rights to which it is entitled under the Agreement) will be authorized to suspend or terminate the Services or part thereof after prior notification by Jexia.
4. CUSTOMER OBLIGATIONS
4.1 Customer procures that any information provided by Customer is correct and accurate. Customer has the obligation to advise Jexia immediately of any changes in such information.
4.2 Customer is solely responsible for the use of the Service and user accounts provided by Jexia, maintaining due care and confidentiality in respect of access thereto and use thereof, for its configuration of the Service, and for any related use of third party goods, software and data, all this at Customer’s own risk and account. Customer and its users are not entitled to misuse the Services and/or to perform any disproportionate storage, development or distribution of any Applications to the Platform. Customer has the obligation to only use the Services within the boundaries of these Terms and the applicable laws. Furthermore, Customer is solely responsible for its testing, installing, use and non-use of any Application, and for verifying and making sure that Customer is free and not restricted to perform, provide or otherwise make available in any way the Applications and/or Application Services by either Jexia Cloud Services and/or any other third party, through the Platform or otherwise.
4.3 Customer is responsible for any information, (personal) data, Application, and other content Customer contribute or otherwise provide or make available in any way to Jexia or the Platform. Customer herewith indemnify and hold Jexia harmless from and against any and all claims of third parties, including any damages, losses, costs and expenses, relating to or arising in whatsoever manner from Customer’s Applications and use of the Services. Jexia at all times has the right to terminate Customer’s Services without further notice, with cause as well as without cause.
5.1 Both Jexia and Customer will treat all data and information that each obtains from the other Party with respect to the Services as well as commercial, strategic, technical data, knowledge and/or other information connected with that other Party as strictly confidential. For the avoidance of doubt, any data or information uploaded by Customer in the Jexia Cloud Services is considered confidential information of Customer. Also, each Party will not make announcements about this to third parties, except for announcements set forth in article 5.3.
5.2 It is only allowed to deviate from the provisions in article 5.1 if (i) the relevant deviation has been explicitly provided for in the agreement, (ii) the related information was already generally known without any breach of confidence by a Party or any third party before the agreement was realized, (iii) the prior written permission of the Party concerned was obtained, or (iv) the related information must be made public to satisfy a mandatory decision to that extent of a legal authority, in which case the Party concerned will inform the other Party in advance.
5.3 Each Party may divulge that Customer uses the Services and Jexia may describe its activities on account of the Services in its marketing materials in general, non-confidential terms.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All rights of intellectual property of Customer to data, information and Applications are and will remain the property of Customer. Herewith Customer grants Jexia a worldwide, irrevocable, perpetual, transferable, exclusive and royalty-free right to use the Applications in any way Jexia deems useful or necessary at Jexia’s sole discretion to provide Customer with the Jexia Cloud Services, which grant Jexia herewith accept.
6.2 Jexia, its suppliers and its licensors are the exclusive owner(s) of all rights and titles to and of all segments of the Services, including the intellectual property rights and the functionality thereof. Customer shall acquire no rights whatsoever other than explicitly described in these Terms and/or the Agreement. Jexia shall grant Customer the non-exclusive, non-transferable and royalty-free right to use the Services for a definite duration, solely for the purpose of development of Applications within the normal business operations of Customer (hereinafter collectively: ‘Right of Use’). The said Right of Use shall solely amount to the right to load and operate the Services for the specified type of project for which the Right of Use was granted.
6.3 For all Services which Jexia generated and/or developed itself and which therefore are not developed and/or do not belong to any supplier or a third party, Jexia holds Customer indemnified against any claims based on the substantiated allegation of a third party that the Services infringe intellectual property rights valid in the Netherlands and other member states of the European Union. In such case, Customer shall inform Jexia thereof immediately in writing, in detail, and further offer its cooperation to Jexia in, but not limited to, legal proceedings and/or negotiations. In the case of aforementioned claims by third parties Jexia may at its discretion replace or amend the Services or any part thereof, or dissolve the Agreement in part or in whole, in which latter case Jexia will return Service Fees paid by Customer for Services not yet provided on a pro-rated basis. Jexia is not responsible for any settlement out of court without a written permission of Jexia.
7. DATA PROTECTION
7.1 During the provision of the Services, Customer is responsible for the (personal) data made available by Customer (and/or it’s (end)customer) in the Jexia Cloud Services and on the Platform, and for its use within the normal business of the Jexia Cloud Services. Processing of personal data by Customer, Jexia or third parties is limited to the legal conditions or mandatory instruction by applicable law and within the purpose of the Services. Each Party takes commercially reasonable care for the protection of the personal data against loss or any other unlawful processing. The privacy and security policy of Jexia forms an integral part of this Agreement between Jexia and Customer and governs the Personal Data Jexia collects and process of Customer, where Jexia shall be the controller.
7.2 Jexia does not give any warranties with regard to content of data, including but not limited to reliability and completeness. Customer understands that the technical processing, transmission and storage of Customer’s data is fundamentally necessary in order to run the Jexia Cloud Services. Customer expressly consents to Jexia and its Suppliers processing and storage of Customer’s electronic communications and/or process data, and Customer acknowledges and understands that this will involve transmission over the internet and processing within the Platform.
7.3 The data and information of Customer are and will remain the property of Customer. Customer is aware that the data processing and storage is managed by the Jexia Cloud Services within the European Union. Customer is responsible for ensuring that it is allowed to undertake cross-border data-transfer, when applicable. Jexia may be required by mandatory law to provide certain (personal) data, also but not limited to article 5.2(iv). If this is the case, Customer will be informed by Jexia insofar as the law permits.
7.4 Customer is responsible for the protection of (personal) data being sent and/or processed by the Services on behalf of Customer and/or it’s (end)customer. Customer will comply with any applicable laws and regulations pertaining to the safeguarding of such (personal) data. Customer indemnifies Jexia for all claims for any breach of applicable privacy laws.
7.5 Jexia reserves the right to withhold, remove, discard and/or otherwise dispose any data or data set without notice for any breach including, without limitation, Customer’s non-payment of Fees, or infringement of confidentiality obligations, Jexia’ intellectual property rights, or (anticipated) breach of mandatory law. Upon termination, Customer’s right to access or use the Services immediately ceases, and Jexia shall have no obligation to maintain any data. However, prior to the date of termination, Customer is entitled to download any of its data then available, which Jexia will make available in generally available format if and to the extent used by Jexia at that time. Any modifications to the data and content of Customer, made outside the Platform will not be captured in Customer’s data as returned and the return of any such modified data shall be the responsibility of Customer.
7.6 If Jexia processes any personal data on Customer’s behalf when performing its obligations under provision of the Services, Parties hereby agree that Customer shall be the data controller and Jexia shall be a data processor in any such case: (a) Customer shall ensure that Customer is entitled to transfer the relevant personal data to Jexia so that Jexia may lawfully use, process and transfer the personal data in accordance with the Services on Customer's behalf; and (b) Customer shall ensure that the relevant third Parties have given their consent or that such use and processing is based on a legal ground, and transfer of all personal data supplied by Customer as required by all applicable data protection legislation.
8. LIMITATION OF LIABILITY
8.1 Except for breaches of these Terms due to intent or gross negligence of the management of Jexia, Jexia will not be liable for any damage that Customer suffers by any acting and/or refraining from acting of Jexia, except for any direct damage on account of an attributable shortcoming of Jexia.
8.2 Direct damage will be understood to mean in this article damage, except indirect damage such as (amongst others) consequential damage, lost profit, missed savings, damage through business stagnation and damage on account of corrupted or lost data. In any event, Jexia’s aggregate liability for any reason and upon any cause of action or claim, including, without limitation, Jexia’s obligation to indemnify and hold harmless under the agreement, shall be limited to the amount equal to the Fees paid to Jexia by Customer hereunder in the six (6) months period prior to the claim. If and insofar any damage is caused because Jexia is culpably in default on account of intent or gross negligence of the management of Jexia in its responsibilities, Jexia will be maximally liable for an amount of EUR 10.000 (ten thousand Euro) per event, at which a series of connected events will apply as one event. The limitations set above apply to all causes of action or claims in the aggregate, including, without limitation, breach of contract, breach of warranty, indemnity, negligence, strict liability, misrepresentations, and other torts.
8.3 A right of Customer to compensation will only arise if Customer has informed Jexia accordingly in writing within thirty (30) days or immediately after Customer could discover in reason the arising thereof.
8.4 Jexia will not be liable for entire or partial non-observance of any obligations or partial non-observance of and/or on behalf of Jexia on account of the Terms, if the non-observance or other delay or failure to perform hereunder is due to: (a) Customer ’ s delay in supplying or in failing to supply approvals, information, documentation, goods or services reasonably requested by or necessary for Jexia to execute the Services, or (b) causes beyond the control of Jexia, including, but not limited to, acts of God, acts of any government or political division of government, fires, floods, epidemics, quarantine restrictions, strikes, under which any non-attributable shortcoming of Supplier(s) of Jexia are included.
9.1 Any pending invoice or other claim pursuant to and/or arising from the Services and these Terms shall forthwith be fully due and payable, without further notice of default and without prior judicial intervention, in the case that (i) the other Party applies for bankruptcy, suspension of payments or is declared bankrupt, or (ii) the other Party is a legal entity and this legal entity is dissolved. In the aforementioned cases, Jexia is authorized - in addition to all rights mentioned in the present Terms - to terminate the Services forthwith.
9.2 Jexia is entitled to subcontract or otherwise assign the rights and/or obligations arising from these Terms, after prior notification to Customer. Customer is not permitted to assign the Services and/or any of its rights or obligations in this matter, without express prior written permission from Jexia.
9.3 These Terms and related matters hereto shall be exclusively governed by the laws of the Netherlands, without giving effect to the principles of conflict of laws. The application of the United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 is hereby explicitly excluded.
9.4 Without prejudice to the right of each Party to apply for disposition by summary proceedings, all disputes arising in connection with the Services and these Terms and related matters (‘ Disputes ’), and which cannot be solved through amicable negotiations, shall be exclusively and finally settled (A) by the competent court of Amsterdam, the Netherlands, if both Parties hereto are based in the European Union, or (B) if one of the Parties is based outside the European Union, by binding arbitration administered by the World Intellectual Property Organization (‘ WIPO ’), pursuant to the Expedited Rules of WIPO in effect at the time of submission. Such arbitration shall be held in Amsterdam, the Netherlands, before a single neutral arbitrator with ten (10) years’ experience concerning commercial agreements. The official language of the arbitration shall be English, and all evidence shall be submitted in English, or in a certified English translation, except when Customer is based in The Netherlands, in which case the official language of the arbitration shall be Dutch and evidence may be submitted in both Dutch and English. The arbitrator’s award shall be a final and binding determination of all Disputes and related claims and counterclaims that are presented to the arbitrator.
9.5 Headings have been inserted into the Agreement for convenience only and shall not affect the interpretation of the Agreement.