Terms of Service for the online access to and use of Memoride
The present terms of service (“Terms of Service” or “TOS”) apply to the relationship between Activ84Health N.V., a Belgian based company incorporated as a limited liability company (“naamloze vennootschap”), having its registered office at Bakenstraat 15, 2460 Kasterlee, and registered with the Belgian Crossroads for Entreprises under the number 0644.854.119 (hereinafter the “Company”) and any person and/or entity accepting the TOS before activation of its login and password (hereinafter “Subscription”) provided by the Company, or any of the Company’s appointed resellers) (hereinafter “End User”).
The TOS govern the rights and obligations between the Company and the End User regarding the use by End User, upon activation of the Subscription, of Memoride (hereinafter “Software”), as modified from time to time by the Company.
ARTICLE 1: Payment of the relevant subscription fee - DURATION
The End User can only have access to and use the Software after the TOS have been accepted. In case the Company has not received the payment of the relevant subscription fee within one (1) month upon the activation of the Subscription, End User’s user rights may be suspended by the Company. End User shall, in case the Subscription is not purchased directly from the Company, not hold the Company liable for such suspension if the lack of receipt of payment by the Company is due to a reseller’s omission to pay the Company.
End User’s right to use the Software by using the Subscription is agreed for a period of five (5) years upon activation of End User’s Subscription. For each additional one (1) year term, End User shall need to pay before continuation of the right to use the Software or before any reactivation of the Subscription, the then applicable Annual License Fee, which the Company applies to End Users and provided End User accept the newest version of the TOS.
ARTICLE 2: Compulsory and exclusive use of the software platform via Specific Hardware
The End User shall solely access and use the software platform with the following type of hardware:
Tablet : Samsung Galaxy TabA 2016 (10.1 Wi-Fi)
Motion Sensor : Wahoo Cadence RPM Sensor
Tablet Holder : Millenium tablet holder
Screen Display Adaptor : Microsoft Wireless Display Adapter v2
ARTICLE 3: ACCESS TO THE SOFTWARE PLATFORM
The End User has unlimited access to the software platform (7 days a week, 24 hours a day) for the duration of its Subscription, except in case of any modifications that the Company must make to the software platform and which may temporarily limit access and/or use (including upgrades and maintenance) thereof. This includes temporary restrictions as a result of upgrades or maintenance at third parties, such as the cloud platform or the Google Street View database. The Company informs the End User beforehand, insofar as is possible, about such barriers and/or restrictions of access. The Company cannot be held liable therefore.
ARTICLE 4: UNLIMITED NUMBER OF USERS – WIRELESS INTERNET CONNECTION
The End User has a non-exclusive license for an unlimited number of users residing within or using its premises, on the understanding that the End User recognizes and accepts that the software may only be used within the context of the professional working environment of the End User.
Access to and use of the software platform requires sufficiently stable wireless access to the Internet, with sufficient coverage, for which the End User is solely responsible. Under no circumstances can the Company be held liable or tasked with repairs if the problems relating to the access and/or use of the software platform are due to the lack of adequate Internet access.
ARTICLE 5: SUPERVISION WHILST USING THE SOFTWARE
The End User acknowledges and accepts that the use of the Software must be appropriately supervised, more specifically in view of the health risks for users that can be associated with its use. The End User is solely responsible and liable for informing users and ensuring supervised use of the package and shall take out adequate insurance, which covers any accidents or damage that may arise from the use of the Software.
ARTICLE 6: GUARANTEE
If the End User experiences problems accessing and/or using the Software and/or the software platform, the End User must inform the Company of this as soon as possible in writing. The Company shall resolve the problem as soon as possible and to the extent that this is possible, without owing any further compensation. The Company’s sole duty shall consist of improving any substantial defects of the software (as far as reasonably possible on the technical level) by modifying the software or supplying an alternative version of the Software.
The Company is not bound to any guarantee, improvement, replacement or repair if:
the defects or problems were caused by misuse, improper or unauthorised use, including any use that is in breach of the user manual, of which the End User acknowledges having received a copy;
the problems are caused by a faulty and/or inadequate Internet connection;
the defects or problems were caused by wear, accident, fire, natural disasters, power outages and, more generally, any cause that is foreign to Company’s services.
ARTICLE 7 - LIABILITY
7.1. End User liability
The End User is liable for breaches of the provisions of the TOS, whether it be by the End User or by individuals using the Software on the End User’s premises.
7.2. Company liability and indemnification by the End User
The Company cannot in any way be held liable for damage arising from the use of the software platform, other than the damage referred to in the TOS. The End User indemnifies the Company from any claim by a user relating to damage and/or an accident arising from the use of the Software.
The Company’s sole liability and the only recourse for the End User for any complaint relating to the Software, whether such liability is based on a breach of contract or breach of the guarantee by the Company or serious negligence by the Company or failure by the Company to comply with legislation and regulations, shall be limited to the price paid by End User for the right to use the Software.
ARTICLE 8 – INTELLECTUAL PROPERTY RIGHTS
All property rights, intellectual property rights and comparable rights related to the software platform, including all trademarks, copyrights, database rights, as well as all designs and information in the associated applications, along with the underlying software code, are the sole property of the Company. The End User acquires only a personal license for the software platform, as set out in the TOS.
The Company shall remain the owner of the data that are gathered during and/or as a result of the use of the software platform. The Company may use these anonymized data for further research and the development of applications for the software platform. The Company commits not to sell these data to third parties without the End User’s explicit written permission. The End User shall always fulfil the licensing and other conditions imposed by or to be imposed by the Company.
The End User is prohibited from copying, amending, arranging or modifying any aspect of the software platform.
ARTICLE 9. MISCELLANEOUS.
9.1 Entire Agreement; Amendments.
The TOS represent the entire understanding about the use of the Software between the parties hereto and supersede all other written or oral agreements made by or on behalf of the Company or the End User and may be changed only by agreements in writing signed both parties.
Whenever possible, the provisions of the TOS shall be interpreted in such a manner as to be valid and enforceable under the applicable law. However, if one or more provisions of the TOS are found to be invalid, illegal or unenforceable, in whole or in part, the remainder of that provision and of the TOS shall remain in full force and effect. Moreover, the invalid, illegal or unenforceable provisions remain binding for the part which is legally permitted.
No failure or delay of a party to exercise any right or remedy under the TOS shall be considered as a waiver of such right or remedy, or any other right or remedy under the TOS, nor shall any partial exercise of any right or remedy under the TOS preclude any further exercise thereof or the exercise of any other right or remedy under the TOS. The rights and remedies provided in the TOS are cumulative and not exclusive of any rights or remedies provided by law. No waiver shall be effective unless it is given in writing and signed by the party that gives the waiver or its duly authorised representative(s).
9.5 Independent Contractor.
The Parties hereto shall act in all matters pertaining to the TOS as an independent contractor. Nothing in the TOS shall constitute or be deemed to constitute a partnership between the Parties hereto. The TOS shall not be construed to authorize either Party hereto to act as agent of the other Party or to authorize either Party to assume or create any obligations on behalf of the other Party.
9.6 Governing Law and Jurisdiction.
Belgian Law shall apply to the TOS and any dispute relating to the interpretation of or performance under the TOS shall be submitted to the exclusive jurisdiction of the Courts of Antwerp, section Turnhout.