MotionCloud Platform Agreement

Applicability
1. These terms and conditions, including all sections and appendices, (hereinafter: Portal Terms) contain all applicable terms and conditions that apply to the agreement (hereinafter: Portal Agreement) on access to and use of the Xsens Portal (hereinafter: Portal) between Xsens Technologies B.V. (hereinafter: Xsens) and client (hereinafter: Client). These Terms apply to any and all offers, quotes, orders and agreements regarding the Portal and to the delivery of any services related to, or through the Portal, insofar as those services are not governed by other agreements and/or terms and/or conditions of Xsens, including but not limited to a Motion Cloud Agreement. Any of the Clients’ (purchase) terms are explicitly excluded.
2. Xsens may alter these Portal 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 Portal Terms will only be binding insofar as agreed between parties in writing. In the event of a conflict between the Portal Terms and an agreed deviation, Xsens may choose which provision prevails. Where these Portal Terms (furthermore) deviate from any other agreement between Xsens and Client, Xsense 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) Portal Terms. 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 Portal 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.

Offers, prices and payment
1. Offers by Xsens are always revocable, unless indicated otherwise. Unless indicated otherwise 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 offerings in the Portal any time.
Agreements
1. Client represents and warrants that any employee of Client has the legal power and all necessary authority to represent and bind Client when such employee is accepting (new versions of) the Portal Terms and/or entering into additional, subsequent or any other Agreement(s) with Xsens regarding the Motion Cloud Services.
2. Parties enter into a Motion Cloud Agreement at the moment an Xsens offer included in the Portal is accepted, and the offer is not revoked by Xsens shortly after Clients’ acceptance. Unless indicated otherwise, the Portal agreement will continues until the Motion Cloud Agreement has terminated and access for Client to the Portal has been deactivated by Xsens. Such deactivation can be requested by Client, without prejudice to the right of Xsens to deactivate Clients’ access to the Portal any time during the duration of the Portal Agreement.

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 Portal Terms. Xsens will perform all obligations on a best-efforts basis, unless a specific result is explicitly and precisely agreed.
2. The services provided in the Portal include inter alia the following:
  1. Access facilities to the Motion Cloud Service Platform for registered users of Client included in Client´s subscription(s), on an “as-is, where is” basis;
  2. Subscription, including the possibility to enter into (further) agreements with Xsens regarding Motion Cloud Services;
  3. User management services, including the possibility for Client to add “main-users”, being (solely) members of Client’s organization, who may in turn add “sub-users”, also being (solely) members of the same organization, (who may not add any further “sub-sub-users”)
  4. The possibility for Client to access reports included in Client’s subscription(s)
  5. The possibility for Client to access animations included in Client’s subscription(s)
3. Xsens is not responsible or liable for any (results of) services, or content on the Portal, and/or otherwise processed with the services, whether or not provided by Xsens. Xsens is not responsible or liable for any (result of) misuse of, and/or illegitimate access to the provided services. Xsens has the right to limit Client’s access to the Portal and/or to its content and to erase content that is (deemed) illegitimate.
4. Xsens is not obliged to follow any instructions by Client regarding the (performance of the) services, unless explicitly agreed otherwise.
5. Client is obliged to provide any necessary information and/or assistance which is required by Xsens in order to perform the services, including inter alia the information necessary for concluding further agreements, such as a Motion Cloud Agreement. Client guarantees that all information provided to Xsens is correct and complete. Where such information would include personal data in sense of the General Data Protection Regulation (GDPR), Client guarantees that each respective provision of personal data is in compliance with the GDPR and other applicable laws and regulations. Insofar Xsens is controller in sense of the GDPR regarding personal data processed through the Portal, it will inform data subjects through a privacy statement which is available via the Portal.
6. 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.
7. Client shall have the personal, non-transferable, non-exclusive right of access and to make a local reproduction of the content that Xsens specifically provides to Client, for the duration of the Portal Agreement, which is limited to those users (both “main-users” and “sub-users”) of Client who “need to know” those contents. Insofar as that content is protected by (intellectual property) rights of third parties, use thereof by Client is determined by the specific license terms of the respective third parties, to which Client is bound. Client indemnifies and holds Xsens harmless for any infringements on any rights that may result from the use of the contents by Client and/or its users.

Insofar Client, or Client’s users, upload any content to the Portal or otherwise provide content to Xsens, Client guarantees that such content is not illegitimate and does not infringe on any rights of third parties. Client indemnifies and holds Xsens harmless for harmless for any infringements on any rights that may result from the uploading to the Portal and/or other provision of contents by Client and/or its users.

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 Portal Agreement 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 Portal Agreement and these Portal 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.
2. 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.
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 Portal 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 (in verzuim). Xsens can only be in default after having received a written notice of default (ingebrekestelling) 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 Portal 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.
Force majeure
1. Neither party is obliged to perform in accordance with the Portal 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 (opzeggen) the Portal Agreement when a force majeure situation has lasted for more than sixty days.
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).

Terms & Conditions Xsens Portal

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