Motion Cloud terms and conditions for trial users

As a trial user, you are enabled to use a trial version of the Xsens Motion Cloud Services for free during a limited trial period. The trial version is made available to you for try-out and test related purposes only. Xsens Technologies B.V. (hereinafter: ‘Xsens’) strongly advises you not to use the trial version for operational purposes. You cannot derive any rights from your use of the trial version of these services and use of the trial version is entirely at your own risk.

Since you will be using a free trial version that is not meant for operational use, Xsens’s obligations in regards to the provision of the Xsens Motion Cloud Services will be limited. Therefore, the Motion Cloud Agreement included in this document including appendixes shall apply to all use (in any way) of the aforementioned trial version of the Xsens Motion Cloud Services, with the exception of the following (parts of) clauses:

1. Section A: Articles 2.2 and 2.3 (prices); Articles 3.3 and 3.4 (duration); Articles 4.1 (best effort); Article 5.1.2 (security measures);
2. Section D: Article 11.1.2 and 11.3 (service level); Article 11.1.5 (support);
3. Appendix IV (monitoring activities).

Furthermore, the following clauses shall apply in an altered form, as set out below:

1. Section A, Article 3.2: Parties enter into an agreement at the moment an Xsens offer is accepted, and the offer is not revoked by Xsens shortly after clients’ acceptance. Unless indicated otherwise, the duration of the MCA for trial use will end ultimately 31 March 2021.
2. Section B: Article 9.2: Xsens may alter the MCS from time to time.
3. Section B: Article 9.4: Xsens may take the MCS temporarily offline, at its sole discretion.
4. Section B: Article 9.6: Should client experience any errors or problems regarding the functioning of the MCS, these must be reported to Xsens.
5. Section C: Article 10.10: Client’s exclusive remedy for any breach of the Limited Warranty is for client to give Xsens notice of the breach by returning to Xsens a description of the alleged breach, and then Xsens shall return the price client paid (if any) for the duration of that breach for the part of the MCS that caused the breach (at which time client’s rights under the MCA are deemed to have terminated). Client’s remedy as described in this paragraph is client’s exclusive remedy, and shall not be deemed to fail in their essential purpose so long as Xsens is willing to return the price client paid (if any) for the MCS.
6. Section D: Article 11.1.1: Xsens motion cloud provides through the MCS customers with access to a trial version of cloud based (SaaS) reports and reprocessing services. This SLA sees (solely) to the trial version of the MCS, and does not apply to systems, connectivity or infrastructure of the client, which are client´s explicit responsibility.
7. Section D: Article 11.2: Xsens may, at its sole discretion, perform monitoring activities on the Motion Cloud environment.

Motion Cloud Terms & Conditions

SECTION A - General Terms and Conditions

SECTION B - Motion Cloud Services

SECTION C - License Terms

SECTION D - Service Level Agreement

SECTION E - Data Processing Agreement

APPENDIX I - Security Plan

APPENDIX II - Specification of Sub-processors

APPENDIX III - Specification of applicable third party license terms

SECTION A - General Terms and Conditions

1. Applicability
   1. These terms, including all sections and appendices, (hereinafter: Terms) contain all applicable terms and conditions applicable to the Motion Cloud Agreement (MCA) between Xsens Technologies B.V. (hereinafter: Xsens) and client regarding the Motion Cloud Services (MCS), to any and all offers regarding the MCS and to the delivery of any and all MCS. Any of the clients’ (purchase) terms are explicitly excluded.
   2. Xsens may alter these Terms when necessary, and will inform client of such alteration, which alteration will be – insofar as necessary – accepted immediately upon communication thereof to client. Any other deviation from these Terms will only be binding insofar as agreed between parties in writing. In the event of a conflict between the Terms and an agreed deviation, Xsens may choose which provision prevails.
   3. Insofar as Xsens provides services (or goods) of third parties (hereinafter: Third Party) to client, the terms of those third parties (hereinafter: Third Party Terms) will apply in the sense that client is bound to such terms, provided that client has been informed of the respective terms in advance, without prejudice to the (applicability of the) Terms. The applicable Third Party Terms are listed in Appendix III. It is agreed that client cannot invoke a claim on the basis of 6:235(1) and/or (3) Burgerlijk Wetboek (BW, Dutch Civil Code) against Xsens when Third Party Terms fail to meet the obligations specified in those provisions. It is also agreed that Xsens cannot be held responsible or liable for any action, failure or shortcoming of a Third Party and/or products and/or services (including software) of a Third Party.
   4. Should any provision of the Terms be non-binding, all other provisions remain in force. Parties shall seek to replace a non-binding provision by a binding provision with a function similar to the non-binding provision.
      
      
2. Offers, prices and payment
   1. Offers by Xsens are always revocable, unless indicated otherwise. Unless indicated to Xsens in writing, Client guarantees that it has received correct and complete information from Xsens regarding any offer by Xsens.
   2. All prices are Euros and exclusive of VAT (BTW) and other taxes, unless quoted differently. Xsens may alter the prices from time to time, and will notify client thereof in advance. Should client not wish to accept such alteration, client may terminate the respective agreement with Xsens in writing, within thirty days upon the notification of the alteration by Xsens, effective from the date on which the alteration would otherwise be applicable.
   3. Xsens will invoice its services to client in accordance with the payment schedule. Payment must be made in conformity with all payment conditions stated in the invoice. Client is not entitled to suspend or withhold , or to set off any payment due. In case client fails to pay in time, or fails to comply with any other condition, client will be in default automatically. Notwithstanding Xsens’ other rights, client will be due to pay commercial interest and costs (judicial and extrajudicial) from the moment of default onwards.
      
      
3. Agreements
   1. Parties enter into an agreement at the moment an Xsens offer is accepted, and the offer is not revoked by Xsens shortly after clients’ acceptance. Unless indicated otherwise, the duration of the MCA will be one month.
   2. Unless either of the parties terminates the MCA ultimately one month prior to the end date, the MCA shall be extended with the same period as initially agreed.
   3. An MCA without a specified end date can be terminated by any party, by means of a written notice of termination, observing a termination period of one month.
   4. Any party is entitled to dissolve the MCA for an imputable failure of the obligations of the other party, to the extent that the respective failure justifies dissolution, and only if the other party is in default . Xsens can be only in default after having received a written notice of default that is in conformity with the provisions of the BW, and after a reasonable period of time for reparation of the failure has ended.
   5. Xsens will not be obliged to refund any payments that client has made, or was due to make, before dissolution takes effect, as the provided services cannot be undone, unless client proves that Xsens is in default with respect to a specific part of the services.
   6. Any party may terminate the MCA in writing with direct effect and without notice of default, in whole or in part, in case the other party is granted suspension of payments; in case of bankruptcy of the other party; or the (company of the) other party is liquidated or dissolved for other than merger- or restructuring purposes.
      
      
4. Services provided
   1. Xsens provides all its services and obligations to client with care, to the best of its abilities, and in accordance with the Terms. Xsens will perform all obligations on a best-efforts basis, unless a specific result is explicitly and precisely agreed.
   2. Xsens is not responsible or liable for any (results of) services, or content processed with the services, not provided by Xsens. Xsens is not responsible or liable for any (result of) misuse of, and/or illegitimate access to the provided services.
   3. Xsens is not obliged to follow any instructions by client regarding the (performance of the) services, unless explicitly agreed otherwise.
   4. Client is obliged to provide any necessary information and/or assistance which is required by Xsens in order to perform the services. Client guarantees that all information provided to Xsens is correct and complete.
   5. Client appoints at the first request of Xsens, a contact person with relevant skills and expertise, which shall operate as “single point of contact” of client for Xsens.
      
      
5. Confidentiality and security
   1. Notwithstanding any other provisions concerning inter alia privacy, (data) security and confidentiality related to the protection of personal data, parties agree that:
      1. Secrecy must be observed regarding confidential information, i.e. information that is disclosed (by the disclosing party, DP) to the other party (receiving party (RP), regarding which the RP knows or should reasonably know that it is confidential. It is not necessary that confidential information is designated as such. Client acknowledges that in any case services, methods, information (also including authorization codes and certificates) and software provided by Xsens are always of a confidential nature. Only those who need confidential information in order to perform obligations under the MCA are authorized to get access to confidential information, which authorization is limited to the extent necessary for the performance of the respective obligation. It is forbidden to provide access to confidential information to non-authorized persons. This prohibition does not apply insofar as, and to the extent that a judicial decision, statutory requirement or statutory order requires the RP to disclose confidential information. In such cases, the RP must, insofar as permitted, inform the DP of a requirement to disclose confidential information.
      2. To the extent agreed in the MCA and these Terms, Xsens is obliged to implement technological and organizational security measures, which should at least provide a level of protection that is not unreasonable regarding the state of the art, related costs, the nature and context of the data to be processed through the services of Xsens – to the extent known by Xsens, and the foreseeable risks. Xsens does not guarantee that these measures are always effective.
      3. Client is obliged to adequately secure its systems, procedures and infrastructure, and to adequately follow up on instructions of Xsens regarding security and safety measures. Xsens is entitled, notwithstanding any other rights, to suspend its services if client fails to comply with the aforementioned obligations.
         
         

6. Xsens liability
   1. The liability of Xsens towards client will be limited to damage that directly results from an imputable failure in the performance of its obligations, to a maximum extent of the payments that Xsens received from the client in the three months before the imputable failure occurred under the respective MCA (or other respective specific agreement), with a total maximum amount that is limited to the sum that Xsens’ insurer is to pay in the respective case.
   2. Liability for damage that does not directly result from an imputable failure in the performance of the obligations of Xsens, including but not limited to: indirect damage, consequential loss, loss of profits, savings or goodwill, loss resulting from business interruption, loss of a chance, loss as a result of claims of third parties, fines and penalties, loss of data and loss of business continuity, is excluded.
   3. Xsens can only be held liable by client when Xsens is in default . Xsens can only be in default after having received a written notice of default that is in conformity with the provisions of the BW, and after a reasonable period of time for reparation of the failure has ended.
   4. Limitations of liability that result from these Terms, cease to apply insofar as damage is caused with intent or deliberate recklessness on the side of Xsens’ management.
   5. Xsens will not be liable for damage that has not been reported in writing by client as soon as possible, and in any case within a maximum period of 12 months after the respective damage has occurred.
   6. Client indemnifies Xsens, and holds Xsens harmless for any and all claims of third parties, unless client proves that Xsens is liable for the claimed loss.
      
      
7. Force majeure
   1. Neither party is obliged to perform in accordance with the Terms when force majeure prevents such performance. Force majeure at the side of Xsens will inter alia include: circumstances beyond the control of Xsens or its suppliers; natural disaster; disease; war; acts of terrorism; riots; actions and measures by government(s) / public authorities; a network or device failure external to Xsens’s data centers or data centers of Xsens’s suppliers, including at clients’ site and/or infrastructure or between clients’ site and/or infrastructure and Xsens’s data center or data centers of Xsens’s suppliers; underperformance of third parties; defects in software, hardware or physical and/or logical infrastructure(s); power failures; crime; vandalism; epidemics; and transport problems.
   2. Any party may terminate the MCA (or any other agreement) when a force majeure situation has lasted for more than sixty days.
      
      
8. Applicable law and disputes
   1. The laws of The Netherlands exclusively apply. The Vienna Convention 1980 on Contracts for the International Sale of Goods (CISG) is excluded.
   2. Any disputes that may arise between parties shall be submitted to the court of Almelo (NL).

SECTION B - Motion Cloud Services

1. Software-as-a-Service

   1. For the agreed duration and in conformity with the MCA and the Terms, Xsens provides client access to the MCS agreed upon in the MCA. Access will be provided online, through an internet connection, as the MCS solely run on webservers controlled by or on behalf of Xsens. Thus, client is not entitled to any physical copy of the (software applied in the) MCS. Unless agreed otherwise, client shall acquire and dedicate a named user account for each separate user that accesses the MCS. A named user account for the MCS may not be shared or used at the same time on different devices. Client may, in conformity with the Terms and the MCA, use the MCS only within its organization, and it is forbidden to allow access to any third party. Client is responsible for maintaining the confidentiality of all account/password information and related authentication tools received from Xsens. Client is obliged to immediately inform Xsens in case of (alleged or confirmed) loss, leakage or data breach with respect to such information / tools.

   2. Xsens may alter the MCS from time to time, and will notify client thereof in advance. Such alteration may contain less, better or more functionality. Should client not wish to accept such alteration because the alteration is significant and of such nature that it would lead to a substantive change in the business processes of client and the alteration is not the result of legislative changes or instructions by public authorities, client may terminate the respective agreement with Xsens in writing, within thirty days upon the notification of the alteration by Xsens, effective from the date on which the alteration would otherwise be applicable.

   3. Xsens is not obliged to maintain older versions of the MCS especially for client, nor is Xsens obliged to make individual adjustments to the MCS for client.

   4. Xsens may take the MCS temporarily offline for maintenance purposes, in conformity with the Service Level Agreement (see section 0). Xsens shall try to schedule maintenance at the least busy moments.

   5. Client accepts the MCS “as-is”, with all (in)visible errors and defects. Xsens does not guarantee that MCS functions in conformity with client’s requirements, that the MCS is free of errors nor that the MCS will function without interruptions. Client furthermore accepts that the MCS uses functionalities of Third Parties, and that Xsens cannot exercise any influence over such Third Party functionalities.

   6. Should client experience any errors or problems regarding the functioning of the MCS, these must be reported to Xsens. Xsens shall, to its best efforts, try to correct such errors or problems in accordance with the maintenance schemes of Xsens, insofar as such errors and problems are within the MCS, and insofar as those errors or problems are not embedded in, or result from Third Party functionality. Xsens is allowed to provide (temporary) work-arounds for errors or problems.

   7. Client is responsible for all contents he wishes to process with the MCS. Xsens is however willing to assist client (against the actual prices) with identifying risks that might result from the use of the MCS in terms of malfunctioning of the MCS, including corruption and loss of data processed through the MCS.

   8. Unless otherwise agreed, Xsens is not obliged to recover lost or corrupted data that have been processed through the MCS. Client takes care of availability of adequate backups of all contents uploaded to and downloaded from the MCS platform.

   9. Client is responsible for compliance with all requirements and instructions with respect to client-side software, hardware, infrastructure and/or other technical and organizational requirements and instructions provided by Xsens. Client acknowledges that any non compliance with these requirements or instructions may lead to unavailability and/or reduced or erroneous performance of the services. Unless agreed otherwise, the most recent requirements and instructions published on https://www.xsens.com/motioncloud-requirements are deemed to be part of these requirements and instructions. Xsens can update these requirements and instructions from time to time.

   10. Client may store data on servers of (or contracted by) Xsens, to a maximum capacity agreed in the MCA. If these maxima are exceeded, Xsens is entitled to charge additional costs to client based on the actual prices.

   11. Client may never act unlawfully towards any (third) party by means of the MCS. Should Xsens be notified of any (potentially) unlawful use of the MCS by client by a third party, Xsens shall render the respective content inaccessible if client fails to remove the respective content upon first request himself, and notwithstanding other rights of Xsens. Xsens shall only then re-render the respective content accessible, when client proves that it does not constitute any unlawful act, and client indemnifies and holds harmless Xsens for any third party claim.

   12. Client may not use the MCS in a way which damages or disturbs the MCS or the hosting environment used for the MCS, nor use the MCS in excess of the authorized number and type(s) of licensed users, (simultaneous) calculations, sessions, sites, storage capacity or other criteria specified in the MCA.

   13. Client shall remain responsible for the interpretation of results of the MCS and actions taken on the basis thereof and shall verify the accuracy and correctness of the results.

SECTION C - License Terms

1. The following articles constitute the license agreement between Xsens and client.

   1. The MCS is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Client acknowledges that all intellectual property rights in the MCS (including but not limited to any images, text, and "applets" incorporated into the MCS) throughout the world belong to Xsens or its suppliers, that rights in the MCS are licensed (not sold or otherwise transferred) to client, and that client has no rights in, or to, the MCS other than the right to use it in accordance with the MCA and the Terms. Client acknowledges that he has no right to have access to the MCS in source code form.

   2. The MCS is licensed, not sold. In consideration of client agreeing to abide by the MCA and the Terms, Xsens hereby grants to client a personal, non-exclusive, non-transferable, standalone license to use the MCS in accordance with the terms of the MCA and the Terms. Xsens reserves all other rights. Unless mandatory law gives client more rights despite this limitation, client may use the MCS only as expressly permitted in the MCA and the Terms. In doing so, client must comply with any technical limitations in the MCS that only allow client to use it in certain ways. Client may not work around any technical limitations in the MCS.

   3. Only users with a named account on the MCS are authorised to use the MCS provided that such use is in accordance with the MCA and the Terms. Specifically: (a) if client is an individual, Xsens grants client as an individual a personal, non-exclusive, non-transferable limited license to use the MCS in accordance with the MCA and the Terms, provided that client is the only individual using the MCS; or (b) if client is an entity, Xsens grants client the right to designate the user(s) of one computer within client’s organisation the sole right to use the MCS in accordance with the MCA and the Terms. If client is installing this copy of the MCS as an upgrade, update, patch or enhancement of a previous release of the same MCS which was installed on the same computer, client’s rights under the previous license agreement for the MCS are terminated, and all of client’s use of the MCS (including its previous versions) are solely under the MCA and the Terms.

   4. Except as expressly set out in the MCA, in the Terms or as permitted by any applicable mandatory law, client undertake: (a) not to copy the MCS; (b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the MCS without prior written consent from Xsens; (c) not to make alterations to, or modifications of, the whole or any part of the MCS nor permit the MCS or any part of it to be combined with, or become incorporated in, any other programs unless such combining or incorporation is technically inevitable in order to use the MCS to run applications developed with the MCS; (d) not to create derivative works based on the MCS; (e) not to disassemble, de-compile or reverse engineer the whole or any part of the MCS nor attempt to do any such things except to the extent that such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the MCS with another software program, and provided that the information obtained by client during such activities: (i) is used only for the purpose of achieving inter-operability of the MCS with another software program; (ii) is not disclosed or communicated without Xsens’ prior written consent to any third party to whom it is not necessary to disclose or communicate it; and (iii) is not used to create any software which is substantially similar to the MCS; (f) to supervise and control use of the MCS and ensure that the MCS is used by client’s employee or representative in accordance with the terms of the MCA and the Terms; (g) not to delete the copyright notice of Xsens in any way; (h) to clearly display in client’s applications the usage of Xsens copyrights including a link to xsens.com; (i) to refrain from using the names of the copyright holders on the MCS nor the names of their contributors nor the Xsens name and logo or any other reference to Xsens or its affiliates to endorse or promote client’s application(s); (j) not to provide, or otherwise make available, the MCS in any form, in whole or in part, to any person without prior written consent from Xsens; (k) not to use the MCS for unlawful purposes or purposes where failure or fault of client’s application or the MCS could lead to death or serious injury of any person, or to severe physical or environmental damage (“High Risk Use”); (l) not to use the MCS in any way that could harm, damage or otherwise negatively impact Xsens, its technologies and infrastructure or any other reasonable interest of Xsens; (m) to take steps to design and test client’s application(s) to ensure that client’s application(s) do not present risks of personal injury or death, property damage, or other losses; (n) to permit Xsens and its representatives, at all reasonable times and on reasonable advance notice, to inspect and have access to any premises, and to the computer equipment located there, at which the MCS is being used, for the purpose of ensuring that client is complying with the terms of the MCA and the Terms.

   5. Client is exclusively responsible for all risk, harm and loss that use of the MCS by client may cause. Client hereby waives all claims against Xsens and its affiliates related to such use, harm or loss (including, but not limited to, any claim that the MCS is defective) and client agrees to hold Xsens and its affiliates harmless from such claims.

   6. Subject to the terms and conditions of the MCA and the Terms, client grants to Xsens and its affiliates a non-exclusive, worldwide, irrevocable and royalty-free license to use, reproduce, display and distribute client data processed by the MCS in any medium or media, for purposes of service provisioning, product improvement, business and technology analytics, support, educational purposes and any other reasonable purpose by Xsens. This license will survive termination of the MCA.

   7. Without prejudice to any other rights, Xsens may terminate the MCA, the license granted to client under this MCA and terminate any other client’s rights under the MCA and the Terms at any time if client fails to comply with any of the terms and conditions of the MCA or the Terms. Upon such termination, client must immediately refrain from using the MCS. The terms of this paragraph shall survive termination of the MCA.

   8. Client may not transfer, assign, charge or otherwise dispose of the MCA nor any of client’s rights or obligations arising under the MCA and the Terms to a third party without the prior written consent of Xsens. In the case Xsens by written agreement grants permission to such transfer, client is not allowed to retain access to the MCS. Upon the occurrence of such a transfer, client’s rights including its license rights under the MCA terminate immediately. Xsens may transfer, assign, charge, sub-contract or otherwise dispose of the MCA, or any rights or obligations arising under it, at any time.

   9. The warranties and disclaimers described in this license agreement are collectively the "Limited Warranty", and are without prejudice to the other provisions of the Terms. TO THE MAXIMUM EXTENT PERMITTED BY LAW, XSENS AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS WITH REGARD TO OR ARISING OUT OF THE MCS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, INTEROPERABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND/OR ACCURACY OF INFORMATION. THE LIMITED WARRANTY PROVIDED HEREIN IS PERSONAL TO, AND INTENDED SOLELY FOR THE BENEFIT OF, YOU AND DOES NOT EXTEND TO ANY THIRD PARTY. The Limited Warranty is void and not applicable if failure of the MCS has resulted from: (a) accident, abuse, misapplication, handling, storage, use or maintenance of the MCS other than as described in the documentation issued by Xsens; (b) modification or repair to the MCS otherwise than as authorized in writing by Xsens; (c) use of the MCS in combination with other computer programs that are not described as compatible in the documentation issued by Xsens; (d) client’s use of the MCS; (e) a defect, fault or failure in client’s own application of the MCS, products or software; (f) client’s breach of the terms of the MCA or the Terms; and/or (g) any fault of client or client’s agents. Goods, software and labour used, as well as any and all expenses and costs reasonably incurred, by Xsens for the repair or replacement or correction of the MCS found in whole or in part to be non-conforming for reasons listed above under (a) up to and including (g) shall be for client’s account. The Limited Warranty does not apply to any third party products or software. No individual (except a duly authorised officer of Xsens) and no reseller has any authority to amend or add to any of the above representations and disclaimers.

   10. Client’s exclusive remedy for any breach of the Limited Warranty is for client to give Xsens notice of the breach by returning to Xsens a description of the alleged breach, and then, at Xsens’ discretion, Xsens shall either: (a) return the price client paid (if any) for the duration of that breach for the part of the MCS that caused the breach (at which time client’s rights under the MCA are deemed to have terminated); or (b) repair or replace the part of the MCS that caused the breach, provided that client makes available all information that may be necessary to assist Xsens in resolving the defect or fault, including but not limited to (i) adequate records that accurately document operating time and maintenance performed on the MCS and (ii) sufficient information to enable Xsens to recreate the defect or fault. The Limited Warranty period for any replacement MCS will be extended for the remainder of the original warranty period or thirty (30) days after the replacement MCS is delivered to client, whichever is longer. Client’s remedies described in this paragraph are client’s exclusive remedies, and shall not be deemed to fail in their essential purpose so long as Xsens is willing to repair or replace the MCS or return the price client paid for the MCS.

   11. The MCA and the Terms set out the full extent of Xsens' obligations and liabilities in respect of the supply of the MCS. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on Xsens except as specifically stated in the MCA and/or the Terms. Client acknowledges that Xsens’ pricing reflects Xsens’ ownership of intellectual property rights and the limitation of liability hereunder. Any condition, warranty, representation or other term concerning the supply of the MCS which might otherwise be implied into, or incorporated in, the MCA or the Terms, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.

   12. To the extent Xsens' MCS licensed under this license agreement contains any third party's intellectual property, this third party shall retain exclusive right to its components. Use of such third party components is subject to restrictions contained in the third party’s end-user license agreement (listed in Appendix III) in addition to the conditions set forth in the MCA and the Terms. Client shall not modify, delete or obfuscate copyright and other proprietary rights notices of Xsens and third parties contained in the MCS.

SECTION D - Service Level Agreement

1. The following articles constitute the Service Level Agreement between parties (hereinafter SLA). All obligations of Xsens under the SLA must be construed as best-effort obligations, unless explicitly stated otherwise.
   1. Service Definition
      1. Xsens motion cloud provides through the MCS customers with access to cloud based (SaaS) reports and reprocessing services, which are regularly maintained by Xsens. This SLA sees (solely) to the MCS, and does not apply to systems, connectivity or infrastructure of the client, which are client´s explicit responsibility. Support to client is provided in four ways namely via FAQ, support form, mail and phone. The processes described in this document see to solve potential defects client might experience in the provided services. The processes also see to high service quality and ongoing improvement of the services.
      2. Core service(s): The Core services that Xsens provides to client comprise the following:
         1. Taking measures in order to achieve a certain level of availability of the MCS, as specified below (hereinafter: Availability). Availability shall relate to the level in which the essential parts of the MCS are offered by Xsens as ready for use, given that client is exclusively responsible for the necessary hardware, software, infrastructure and connectivity, and notwithstanding the other provisions of this SLA;
         2. Providing preventive, corrective and/or adaptive maintenance regarding the MCS, as specified below (hereinafter: Maintenance). Preventive Maintenance is regular maintenance which sees to lessening the likelihood of failure of the MCS. Corrective Maintenance sees to the restoration of (parts of) the MCS where necessary in order to keep the MCS in conformity with the agreed specifications. Adaptive Maintenance sees to the modification and/or extension of the functionalities of (parts of) the MCS;
         3. Restoring defects causing the MCS to underperform regarding the explicitly agreed functionalities, as specified below (hereinafter Defects).
      3. Intake services: In order to start using the MCS, client must subscribe to the service and create a main user account. With this user account, client is able to manage (sub-) users for his organization. With the created (sub-)user accounts (components of) the services can be accessed and used to which the respective users of client have been granted access, to the extent that client has subscribed to the respective (components of) services.
      4. Exit services: With regard to personal data that are processed through the MCS, the provisions of the data processing agreement apply when the MCA ends.
      5. Service support: Xsens provides to client first line Service support as specified below.
         
         
   2. Service Level Specification
      1. Core service(s) KPIs: Xsens shall, to the best of its efforts, exert to achieve the following Key Performance Indicators (KPIs), to the extent that the Preconditions (section 3) are met:
         1. Availability: Unless otherwise agreed, listed below are the Availability percentages during regionally applicable office hours (i.e. Support Hours as defined in section 2.2.1). The Availability percentages include down time due to Maintenance, security issues or data breaches (i.e. when (parts of) the MCS are down due to Maintenance, security issues or data breaches, this does not count as non-availability):

1. Maintenance: Xsens has the right undertake Maintenance of (parts of the) MCS. Maintenance shall, with the exception of emergency maintenance, take place outside the most busy hours as much as possible (see also section 4). Maintenance shall only see to the latest version of the MCS, and will not extend to older versions, unless otherwise agreed (see also section 9.3). To the extent possible, Xsens shall inform client of planned Maintenance, and corresponding non-availability of (parts of) the MCS.
2. Monitoring: Xsens will monitor the Motion Cloud environment in order to guarantee the stated availability (as defined in section 2.1.1). Appendix IV contains an overview of the monitoring activities that Xsens performs on the Motion Cloud environment.
3. Service support KPI’s: Xsens shall, to the best of its efforts, operate first line Service support that shall be available to client, in order to provide answers to client’s questions regarding the use of the MCS within a reasonable period of time, to the extent that the Preconditions (section 3) are met. Furthermore, client should notify Xsens of Defects through first line Service support (as also mentioned in section 9.6).
   In cases where first line Service support is unable to adequately address respective questions, Xsens may seek external second line support. The first line Service support can be reached through FAQ, support form on the Motion Cloud environment, email and/or telephone during Support hours as specified below. To the extent possible, client shall primarily use the FAQ or support tickets for getting in touch with Service support.
   1. The following are the respective means of communication and Support.

Client should handle support requests in the following manner:

1. Defects shall only be addressed by Xsens, when client notifies Xsens thereof through first line Service support, in conformity with the means of communication and during Support Hours as defined in section 2.2.1.
   Upon notification, Xsens shall – where applicable after correspondence with client – prioritize a Defect as high, medium or low. Taking account of the respective prioritization, Xsens guarantees a time window within which it shall respond to client (Response Time), and guarantees a corresponding effort that will be deployed to address, analyze and – where possible – solve the Defect (Guaranteed Effort) as follows, insofar as client provides Xsens all necessary assistance and information:
   
   

Should it not reasonably be possible to solve the Defect in conformity with the above Response Time and Guaranteed Effort, Xsens may offer client a temporary workaround (as also mentioned in section 9.6), and notify client thereof.

1. Preconditions
   1. Core Service - Availability, Maintenance, Service Support & General: The service levels described in this document do not apply to any issues:
      1. Attributable to client or any third party;
      2. Due to planned Maintenance;
      3. Due to client’s use of other browsers than the supported browsers as defined in art. 9.
      4. Due to incorrect management by client of its subscriptions to (components of) the MCS, and/or of (sub-)users;
      5. Due to (other) factors outside the reasonable control of Xsens as specified in art. 1;
      6. That result from the use of services, hardware, infrastructure, constructions or software not provided by Xsens or Xsens’s suppliers, including, but not limited to, issues resulting from inadequate bandwidth or related to third-party software or services;
      7. Caused by client’s use of (parts of) the MCS after Xsens advised client to modify client’s use of the (respective parts of the) MCS, if client did not modify its use as advised;
      8. During or with respect to preview, pre-release, beta or trial versions of (a part of) the MCS, feature or software (as determined by Xsens);
      9. That result from client’s unauthorized action or lack of action when required, or from client’s employees, agents, contractors, or vendors, or anyone gaining access to Xsens’s (or a third party) network by means of client’s passwords or equipment, or otherwise resulting from client’s failure to follow appropriate security practices;
      10. That result from client’s failure to adhere to any required configurations, use supported platforms, follow any policies for acceptable use, or client’s use of (parts of) the MCS in a manner inconsistent with the features and functionality of the MCS (for example, attempts to perform operations that are not supported) or inconsistent with our published guidance;
      11. That result from faulty input, instructions, or arguments (for example, requests to access files that do not exist);
      12. That result from client’s attempts to perform operations that exceed prescribed quotas or that resulted from our throttling of suspected abusive behavior;
      13. Due to client’s use of MCS features that are outside of associated support windows, and those of Xsens’s suppliers;
      14. For licenses reserved, but not paid for, at the time of the issue at hand.

1. Prices and rates (insofar as not indicated in the MCA)
   1. In addition to the agreed prices and rates the following will apply for subsequent calculations.
   2. Subsequent calculation
      1. Changes: when parties agree that Xsens is to develop and implement a change in the MCS on client’s request, Xsens will charge applicable costs to client.
      2. Beyond fair use: the prices and rates addressed in (all parts of) the MCA, including this SLA, are based on fair use of the MCS by client. Should, in the opinion of Xsens, client’s use be beyond what Xsens considers to be fair, Xsens is entitled to charge additional costs.
      3. Extra services: when parties agree that Xsens is to deliver extra services (i.e. services that have not been encompassed in this SLA), Xsens is entitled to charge additional costs.

SECTION E - Data Processing Agreement

1. The following articles constitute the Data Processing Agreement between parties (hereinafter DPA), in sense of article 28(3) General Data Protection Regulation (hererinafter: GDPR), which is necessary between parties, as Xsens processes personal data on clients behalf through the MCS. Xsens can be qualified as “Processor” and client as “Controller” under the GDPR.
   1. Parties take into consideration the following:
      1. Processor will perform services on behalf of Controller, as described in the agreement between parties, which is enshrined in the Terms, sections A-D and the MCA (hereinafter referred to as: Main Agreement);
      2. Processor obtains and/or gains access to personal data in executing the Main Agreement.
   2. The concepts that are used in this DPA are identical to the concepts as defined in the GDPR, unless stated otherwise hereinafter: Autoriteit Persoonsgegevens [The Dutch Data Protection Authority (the Dutch DPA)]: The supervisory authority regarding the compliance with the GDPR as specified in Article 51 GDPR; Data Subject: the natural person to whom the personal data relates. Sub-processor(s): natural or legal person –which processes part of the Processor’s processing tasks on behalf of Processor. Breach: breach in connection with personal data. DPA: this processing agreement including any appendices.
   3. On behalf of Controller, Processor processes personal data relating to the following categories of Data Subjects: contact person client, MCS users and the subjects whose motions are analyzed (‘motion subjects’).
   4. On behalf of Controller, Processor processes personal data relating to the following categories of personal data:
2. Contact person client: first and last name, company name, e-mail, phone number, (bank)account numbers, country/city/address-information, commercial register number;
3. MCS users: e-mail, first and last name, organization, phone number;
4. motion subjects: subject number, Mocap data.
   1. At the request of and at the expense of Controller, Processor will do whatever Controller deems necessary in order to satisfy a request from a Data Subject to fulfil his/her rights. Among other things, these rights include, without being limited thereto, the Data Subject’s right of access, right to erasure, right to restriction of processing and the right to data portability.
   2. Processor will only process the personal data on behalf of and for the Controller and on the basis of written instructions given by the Controller, unless specified otherwise by law.
   3. Processor will comply with a legal obligation or court order and will, in such a case, notify Controller in advance, unless such is not permitted pursuant to the law or the court order.
   4. Processor will immediately notify Controller if, in the opinion of Processor, an instruction from Controller would result in a breach of the law and/or court order, with the understanding that the responsibility and liability for the processing will fully remain with Controller.
   5. Processor will not process the personal data for its own purposes and/or provide it to third parties, except insofar as such provision is permitted by the Main Agreement.
   6. Processor shall itself process the personal data to which he has access on the basis of the Main Agreement. Processing of the personal data by a Sub-processor is permitted after having informed the Controller.
   7. If Processor, with due observance of the provision in article 10, engages a Sub-processor, Processor will impose obligations regarding data protection on the Sub-processor with a protection level as specified in Article 28 paragraph 3 in conjunction with paragraph 4 GDPR.
   8. Processor is at all times obligated to (continue to) store and to process, or to have stored and processed by Sub-processors, the personal data within the European Economic Area (EEA) or, if outside the EEA, in (companies in) third countries that ensure an adequate level of protection as meant in art. 45.1 GDPR.
   9. Parties agree that the parties named in Appendix II may be engaged as Sub-processor for Processor and obtain access to personal data. Intended changes to this Appendix may from time to time be communicated by Xsens, in which case client will be given the opportunity to object to such changes by terminating the respective agreement with Xsens in writing, within thirty days upon the notification of the alteration by Xsens, effective from the date on which the alteration would otherwise be applicable.
   10. Processor explicitly has no control over the purpose of and means of processing of the personal data which it processes in the execution of the Main Agreement.
   11. Processor will adhere to the GDPR and other applicable laws and regulations, more specifically to the laws and regulations regarding the protection of personal data.
   12. Processor will perform at least the following tasks regarding personal data when executing the Main Agreement:
5. storage of the personal data;
6. provision of the personal data to Controller;
7. guaranteeing the access to the personal data exclusively for Controller or Data Subjects via Controller;
8. analyzing and aggregation of personal data of motion subjects with the MCS software in order to perform the MCS and to improve future analysis of motion data.
   1. Processor will refrain from any actions which may restrict the Controller’s or the Data Subjects’ abilities and rights to freely access the personal data.
   2. Processor will not hold any personal data except insofar it is necessary for the execution of the Main Agreement or based on a legal obligation.
   3. Processor is obligated to ensure that appropriate, technical and organizational measures are in place in order to secure the personal data against loss or against any form of unlawful Processing, as specified in Article 32 GDPR. In any event, Processor will at all times continue to satisfy appropriate security measures as specified in Article 32 GDPR and will in general ensure at all times an appropriate security level given the nature of the data and the risk of the Processing. The security plan included in Appendix I to this Agreement and the measures stated therein must be maintained as a minimum level of protection.
   4. Processor will take all necessary measures to prevent unnecessary collection and further processing of the personal data, other than which is required for the execution of the Main Agreement.
   5. Upon Controller’s request, Processor will offer, at Controller’s expense, all cooperation which may reasonably be required to provide in order to enable Controller to check (or to have checked) as well as to examine (or to have examined) whether the processing of the personal data occurs as agreed upon and whether Processor has taken all of the appropriate, technical and organizational security measures against loss or against any form of wrongful processing.
   6. Controller is entitled to check (or to have checked) the fulfilment of the provisions of this Agreement once per year at the most, unless, in Controller’s opinion, an interim audit is desirable for an important reason. Controller is entitled to perform this audit itself or to have it performed by an independent chartered accountant, chartered computer scientist or an auditor certified for this purpose. Controller will bear the costs of such an audit. The costs of the Processor’s personnel who guide the audit are at Controller’s expense. An audit may not unnecessarily disrupt the Processor’s business activities. Controller will announce the audits in writing to Processor at least ten days before they commence, providing a description of the elements to be audited, unless Controller desires to perform (or to have performed) an audit as specified in the second sentence of this section for substantial reasons.
   7. In the event of a Breach, Processor will notify Controller of this Breach and the (expected) consequences as quickly as possible – but no later than within 48 hours – after its discovery. In such an event, the Processor will provide additional information on the nature of the Breach, the name and contact information of the data protection officer or other person of contact, the probable consequences of the Breach, the manner in which it will address the Breach and the manner in which it will restrict adverse consequences of the Breach. The Processor states the time frame within which it will take these measures. Upon Controller’s request, Processor will also grant all reasonable co-operation regarding a notification to the Dutch Data Protection Authority.
   8. Processor will also notify Controller of any Breaches, including the facts regarding the Breach in connection with personal data, the corresponding consequences and the corrective measures taken. This documentation must enable the Dutch Data Protection Authority to verify compliance with Article 33 GDPR.
   9. Processor will, taking into account the nature of the processing and the information made available to it, assist Controller at Controller’s expense, in the fulfilment of its duties in accordance with the GDPR, including without being limited to its duty to secure, its notification duty, the execution of a data protection impact assessment and a prior consultation when processing with a high risk.
   10. Processor guarantees that it will at all times act in accordance with its legal duties on confidentiality, including without being limited to the duty of confidentiality as specified in Article 90 of the GDPR. Processor will not directly or indirectly make available the personal data to third parties, unless specified otherwise in the Main Agreement, by the law or a court order.
   11. Processor will (contractually) obligate its subordinates who have access to the personal data, as well as the third parties it engages which have such access, to confidentiality as required by the GDPR and this Agreement.
   12. Processor is obligated to report to Controller any request for disclosure or issuance of personal data.
   13. In the event of termination of this Agreement, Processor will, while charging the actual costs, make available to Controller the personal data along with any other processed data in an electronic file format, commonly used in the market.
   14. Subject to its otherwise binding legal obligations, Processor is obligated, upon written request after termination of the Main Agreement, to destroy all of Controller’s personal data.
   15. Should Processor be liable as a result of non-compliance with the obligations under this Agreement and/or the GDPR, the exceptions and limitations apply stipulated in article 6 of the Terms. These limitations also apply to any eventual right of recourse that Controller might have against Processor.
   16. Controller indemnifies Processor and holds Processor harmless against any claims from Data Subjects and third parties, including imposed penalties and due damage compensation, insofar as these claims are based on or caused by breaches by Controller of the applicable laws and regulations, including the GDPR.
   17. If laws and regulations change in such a manner that the Agreement no longer satisfies the requirements laid down in laws and/or regulations, Parties will adjust the Agreement in mutual consultation in accordance with these amended laws and/or regulations.
   18. Processor is entitled to charge any activities based on this DPA to Controller at Processor’s common prices and rates at such time.

Appendix I - Security Plan

Processor is obligated to ensure that appropriate, technical and organizational measures are in place in order to secure the personal data against loss or against any form of unlawful Processing, as specified in Article 32 GDPR. In any event, Processor will at all times continue to satisfy appropriate security measures as specified in Article 32 GDPR and will in general ensure at all times an appropriate security level given the nature of the data and the risk of the Processing. The security measures specified in this Appendix shall be maintained by Xsens as a minimum level of protection:

• Identity management (as provided by Microsoft Azure)
• 2-factor authentication
• Firewall (as provided by Microsoft Azure)
• IP-restricted access to testing environment
• Data access measures included in Xsens’ internal privacy policy
  • Your function profile will grant you access to confidential and maybe personal data. We expect you not to copy this data outside MCS or share it with others who do not have access to this data. An important way to protect the data accessible from your account is not to give others access to your account.

APPENDIX II – Specification of Sub-processors

The specific authorisation of client (included in art. 12.13 of the Terms) to engage sub-processors, refer to the Sub-processors listed here:
• Microsoft Ireland Operations Limited (One Microsoft Place, South County Business Park, Leopardstown, Dublin 18, D18 P521)
o Concerns Microsoft Azure
• TRIMM Multimedia B.V. (Moutlaan 25, 7523 MC Enschede, Netherlands, KvK 06069220)
o Concerns development and technical support
• Exite ICT B.V. (Hengelosestraat 501, 7521 AG Enschede, Netherlands, KvK 06086913)
o Concerns technical and infrastructural support

APPENDIX III – Specification of applicable Third Party Terms

(as meant in section 1.3 of the Terms)

The most recent Third Party components used and corresponding Third Party terms are published on https://www.xsens.com/motioncloud-thirdpartycomponents. Xsens can update the Third Party components used and corresponding Third Party terms time to time.

APPENDIX IV – Monitoring activities

Xsens will carry out the following monitoring activities on the Motion Cloud environment:

• Monitoring of the application uptime
• Monitoring of resources (database, network, memory, CPU, harddisk usage, etc)
• Monitoring of performance
• Monitoring and updating of SSL certificates
• Identification and impact analysis for optional server upgrades
• Identification and impact analysis for optional software upgrades
• Monthly sanity check of virtual machines
• Monthly backup process checks
• Monthly backup integrity checks
• Monthly logfile analysis

Contact us

Please do not hesitate to contact us if you have any questions that are not answered in this Agreement

Xsens Technologies B.V.
Pantheon 6a
7521 PR Enschede
+31 88 97367 00
info@xsens.com
Chamber of Commerce no. 50142224