Terms and Conditions
This End User License Agreement is a legally binding agreement between Xenialab S.r.l., VAT no. 09668910012, with registered office in 20037 - Paderno Dugnano (MI), Italy, Via I Maggio, no. 13 and the User, as better defined in the following art. 1.1 lett. j), concerning the use of the software called "VIDAOO" by Xenialab S.r.l. and accessible on the website www.vidaoo.xcally.com. By clicking the button "I ACCEPT" at the bottom of this document, thus completing the process of registration of a personal profile through the link above or otherwise using the software in question, the user enters into this agreement, accepting all the provisions contained herein. The use of the software without signing this agreement constitutes a violation of the copyright and trademarks owned by Xenialab S.r.l. or available to the latter.
Definitions
1.1 Where mentioned in this agreement, the terms listed below have the meaning set forth herein. Each definition given in the singular also includes the plural version and vice versa:
Account: profile created by the First Level User, complete with access credentials (username and password), through the registration process accessible at www.vidaoo.xcally.com or provided directly by Xenialab S.r.l.;
Updates:modifications, implementations and verticalisation of the Software made by the Licensor or by entities authorized by the same;
Content:any content sent, transmitted, displayed or uploaded by the User during the use of the Software, whether in visual, textual and/or audio format;
Agreement:this End User License Agreement, including its annexes and any external resources expressly referred to in this document and accessible to the public;
Intellectual Property Rights:Any intellectual property and/or patent right owned by the Licensor and/or available to the Licensor, whether titled or untitled, including, but not limited to, copyright, patent rights (including patent applications), trade secrets, registered or unregistered trademarks, technical information, patents, copyright, know-how, data, test results, knowledge, techniques, discoveries, inventions, specifications, designs, regulatory filings and other information (whether patented, patentable or otherwise);
Licensor:he company Xenialab S.r.l., VAT no. 09668910012, with registered office in 20037 - Paderno Dugnano (MI), Italy, Via I Maggio, no. 13;
User Page:the administration page of the Software resources, accessible by the User with an Account through the link https://vidaoo.xcally.com/profile;
Plans:the plans of the Subscription License referred to in article 3.2 of the Agreement and accessible by the First Level User through his/her User Page in the Billing/Plans section;
Software:the software named "VIDAOO" owned by the Licensor and accessible at the website www.vidaoo.xcally.com, and having the technical features viewable in the Wiki portal of the product;
User:any entity, natural person and/or legal entity, which makes use of the Software. The term User includes:
First Level User, meaning the User who has directly registered an Account through the procedure accessible at the link www.vidaoo.xcally.com/register or provided directly by Xenialab S.r.l.;
Second Level User, meaning the User whose profile has been created by a First Level User through the "Users" panel accessible on the User Page by First Level Users only.
Object of the Agreement
2.1 By means of this Agreement, the Licensor, as owner of the Software, grants the User a non-exclusive, time-limited license to use the Software under the conditions stipulated herein. The Software shall remain the property of the Licensor or its assignees as the sole owner of the relevant copyrights and economic exploitation rights as well as the source code.
2.2 User is merely granted the right to use the Software as an end user, without any right to grant sub-licenses or to assign this Agreement, in whole or in part, or any part of the rights arising from it.
2.3 User undertakes not to use the Software for purposes and in ways other than those expressly set out in this Agreement.
Types of License
3.1 Licensor provides the Software to the User under different types of license, as listed below.
3.2 Subscription License:With a Subscription License, the Licensor grants the User a license which is time-limited, for a fee, non-exclusive, non-transferable and non-sub-licensable to use the Software on an unlimited number of devices not at the same time, while, in the case of simultaneous connection, on a number of devices determined according to the Plan chosen by the User. The duration of the Subscription License, as well as the amount due, payment methods and terms of payment will be indicated in the Plan chosen by the User.
3.3 Trial License:with a Trial License, the Licensor grants the First Level User a free, non-exclusive, non-transferable, non-sub-licensable, 30-day license to use the Software on an unlimited number of devices, not simultaneously. Simultaneous use on more than one device is not permitted. In any case, the right of use under the Trial License is limited to the exclusive purpose of testing and assessing the Software. Any use, directly or indirectly, in whole or in part commercial, for profit, training or any other purpose other than the testing or assessment of the Software is therefore forbidden. The functions and use of the Software may be restricted at the Licensor's sole discretion. The duration and effectiveness of the Trial License shall start from the day when the First Level User has completed the Account creation process, and the User Page has been activated and made accessible to the First Level User. 30 days after this event, the rights of use under the Trial License shall expire without any possibility of renewal. Within the same period, if the First Level User has not purchased a Plan, the First Level User will be barred from accessing the Software and his/her Account and Content will be deleted. In this case, the User shall have no claim against the Licensor for any reason or title whatsoever.
3.4 Free License:the Licensor may, from time to time and at its sole discretion, allow the User to use the Software or specific features thereof without the obligation to purchase a Plan or otherwise pay a fee. With a Free License, the Licensor grants to the First Level User a time-limited, free, non-exclusive, non-transferable, non-sub-licensable license to use the Software in the manner, terms and with the duration determined by the Licensor in a separate agreement with the User. In this case, in the event of conflict between the individual provisions of this Agreement and those of the Free License agreement, the provisions of the latter shall prevail, without prejudice to the applicability of the provisions of this Agreement not in conflict with the Free License.
3.5 Personalized License:the Licensor may, from time to time and at its sole discretion, allow the User to use the Software or specific functions thereof under terms and conditions different from those set out in this Agreement and specifically agreed upon through a separate agreement with the User. In this case, in the event of any conflict between the individual provisions of this Agreement and the provisions of the Personalized License agreement, the provisions of the Personalized License agreement shall prevail, without prejudice to the applicability of the provisions of this Agreement not in conflict with the Personalized License.
Licensor’s Liabilities
4.1 The Licensor provides the Software to the User by making it accessible via the web at www.vidaoo.xcally.com.
4.2 Software is released in its current state. The Licensor makes no express or implied representations and warranties that the Software is suitable to meet the User's needs, that it is free from errors or that it has features not provided for in the technical specifications and related documentation.
4.3 It is the User's responsibility to check the operation of the Software and its suitability for achieving the intended results.
4.4 User acknowledges that under no circumstances shall the Licensor be liable for any damage caused to the User or third parties as a result of the use or non-use of the Software, except in cases of wilful intent or gross negligence.
4.5 However, except in cases of wilful misconduct or gross negligence, the Licensor's liability shall never exceed the amount of the fees paid by the Licensee under the Agreement in the year in which the event giving rise to the Licensor's liability occurred.
4.6 Licensor does not guarantee the User the continuity of the connection to the Software and, therefore, shall not be liable in any way for any technical malfunction that prevents the connection to the Software or to individual pages thereof and/or the use of one or more of its functions.
4.7 Licensor disclaims all liability for interruptions to the Software due to unforeseeable, exceptional and force majeure causes such as hacker attacks, failures of data lines, electricity and/or national or international networks and/or its own or other operators' technical equipment necessary for the regular operation of the Software and not due to poor maintenance attributable to the Licensor.
4.8 If the Licensor suspends the service and ancillary services due to the occurrence of one of the events referred to in the preceding paragraph, it shall not be obliged to refund the portion of the agreed fee corresponding to the period not enjoyed.
4.9 User acknowledges and declares that he/she shall have no claim against the Licensor in the event of inefficiencies that may compromise access to the platform or its correct and complete functionality.
4.10 Licensor reserves the right to update the technical specifications of the Software at any time in order to improve its performance and functionality and shall only notify the User when such updates become effective.
4.11 Under no circumstances shall the Licensor be liable to the User or to any other entity for any direct, indirect, consequential or incidental damages and/or injuries relating to (i) loss of data, (ii) loss of profits, (iii) loss of opportunity, and (iv) loss of use, irrespective of the cause and assumption of liability on which they are based, including, without limitation, breach of agreement, tort or breach of law, whether or not the party in question has been advised of the possibility of such damage or loss.
User’s Liabilities
5.1 If the User is a natural person, the latter declares and warrants that he/she is at least 18 years of age or is of the different and older age stipulated by the applicable law in the country where the User resides, for the full recognition of legal capacity to contract. The natural person User also warrants that he/she has full and unconditional legal capacity to assume all obligations under this Agreement, without exception, and that no impediments and/or limitations exist of any kind to this capacity.
5.2 If the User is a legal entity, the natural person who accepts this Agreement and registers the Account on behalf of the legal entity declares and warrants that he/she has all necessary powers to effectively and legally bind the legal entity User to the obligations under this Agreement.
5.3 User may only use the Software in accordance with the terms of this Agreement. The User is solely responsible for the use of the Software and is required to comply with, and ensure compliance with, all Laws related to the use of the Software, without limitation.
5.4 In order to register his/her Account with and/or use certain features of the Software, the User may be required to provide personal information. The User represents that the information provided is correct. The User will also be asked to choose a user name and password to access the Software. The User accepts full responsibility for ensuring the security of the user name and password and agrees not to disclose this information to any third party.
5.5 User agrees being solely responsible for the Contents submitted, sent, displayed and/or uploaded while using the Software, and for complying with all Laws relating to such contents, including, without limitation, Laws requiring the User to obtain consent to send, acquire and display such Contents. The User represents and warrants that he/she has the right to upload the Contents onto the Software and that such use does not violate any rights of any third party or any Law applicable to this Agreement pursuant to art. 15, or any other Law applicable in the place where such Contents are sent and/or received and/or where the User has his/her residence or registered office. Under no circumstances shall the Licensor be liable in any way for a) Contents sent or displayed during the use of the Software, b) errors or omissions in the Contents, c) loss or damage of any kind arising from the use of, access to, or denial of access to the Contents.
5.6 The User expressly acknowledges that the Licensor does not have any prior control over the Contents, and the User shall be solely responsible for any total or partial, direct or indirect unlawfulness of the Contents or the way in which the Software is used.
5.7 User acknowledges that the Contents are not held directly by the Licensor, but by Amazon Web Services Inc., a third-party company independent from the Licensor which provides Data Center and data storage services to the Licensor. The User further acknowledges that the Licensor or Amazon Web Services Inc., as well as any other party that physically holds the availability of the Contents may, at its sole discretion, remove the Contents at any time, without notice and without any possibility of recovery, if it becomes aware of any or even potential breaches of the provisions of this Agreement or of a Law. The User retains the possible copyright and any rights to the Contents submitted, published or displayed on or through the Software.
5.8 User is responsible for complying with all applicable Laws regarding the recording of images, video, audio and any other Contents. The User may choose to record meetings, video calls and Contents through the use of the Software. In this case, the User must provide the Licensor or its assignees, including Amazon Web Services Inc. with the consent to store such recordings and Content and holds the Licensor harmless as regards any claims by third parties or other Users relating directly or indirectly, in whole or in part, to such recordings.
5.9 User undertakes not to use the Software for the purpose of (i) modifying, disassembling, decompiling, making derivative works, reverse engineering or otherwise attempting to gain access to the source code of the Software, (ii) abusing, interfering with or damaging the networks of the Licensor or its successors in title or other Users, (iii) engaging in illegal, fraudulent, false or deceptive activities, (iv) sending, through the Software, Contents that could violate intellectual property or other rights of third parties, (v) using the Software to disseminate Contents which are unlawful, harassing, defamatory, threatening, obscene, or contrary to public policy or morality, which infringe the intellectual property rights of third parties or are otherwise unlawful, which could give rise to civil liability, or which constitute or encourage conduct that would constitute a criminal offence, under any law, (vi) uploading or sending any Contents that could damage and/or adversely affect the performance of the Software or which could damage and/or extract information or data from other Users, (vii) engaging in any activity or using the Software in any way that could damage, interfere with and/or adversely affect the Software itself, or servers or networks connected to it and/or the Licensor’s security systems, (viii) using the Software in violation of applicable Laws, including, without limitation, anti-spam, export control and anti-terrorism Laws or regulations, Laws requiring the consent of the subjects of audio and video recordings and for which the User agrees to be solely responsible for compliance therewith.
5.10 First Level User is jointly and severally liable with Second Level Users for the activities carried out by them through the use of the Software. The First Level User undertakes to ensure that such Second Level Users comply with the terms of this Agreement. In any case, Second Level Users remain liable to the Licensor pursuant to Sections 5.3, 5.4, 5.5, 5.6, 5.7, 5.8 and 5.9 above.
5.11 If the User becomes aware of any breach of this Agreement by other Users, the User shall notify the Licensor without delay using the contact details in art. 16 of this Agreement. The Licensor may investigate reports and violations brought to its attention and may take any action it deems appropriate at its discretion, including removal of Contents or termination of Accounts and Users. Under no circumstances shall the Licensor be liable in any way for any data or other Contents displayed during the use of the Software, including but not limited to errors or omissions in such data or Contents, loss or damage of any kind incurred as a result of such use, access to, or denial of access to data or Content.
5.12 The User is solely liable for any damage caused to the Licensor, its licensees, partners, associated service providers and subcontractors, other Users of the Software and other natural persons or legal entities as a direct or indirect result of the violation of the provisions of this Agreement.
5.13 User undertakes to indemnify the Licensor, and hold it, its licensees, partners, associated service providers and subcontractors, other Users of the Software, and other individuals or entities harmless from any and all damages, losses, expenses, harm or liability that may result to them as a direct or indirect result of, directly or indirectly, (i) any breach of any provision of this Agreement, (ii) the sending, display and/or uploading of any User Content, (iii) any activity whereby the User misuses the Software and (iv) the violation of any Law or the rights of any third party by the User.
Fee
6.1 In the event of a Subscription License, the First Level User undertakes to pay to the Licensor, in advance, the amount established in the Plan. The First Level User acknowledges that, in the absence of due payment of the fee, the Licensor will not activate the User Account and will not allow access to the User Page.
6.2 The First Level User who has purchased a Subscription License expressly acknowledges that the payment made to the Licensor will be automatically renewed at the end of the applicable subscription period, and that he/she must forthwith authorize the payment to be debited using the payment instrument used for the first purchase, unless the First Level User cancels before the expiry date of the current Plan. Cancellation will take effect on the day following the last day of validity of the current Plan. On that date, the Account will be removed and all Content will be removed, without the User having any claim to make against the Licensor. On the other hand, until the cancellation becomes effective, the User may continue to fully enjoy the Subscription License.
6.3 The Licensor may change the prices of the Plan from time to time, subject to prior notice to the First Level User. However, the price change shall not affect the current Plan. On the contrary, the price change will be automatically applied by the Licensor in the event of renewal of the current Plan and after such event, in the absence of cancellation made by the User in the manner described in art. 6.2 above. The price change shall be deemed to be definitively accepted by the First Level User if the First Level User continues to use the Software after the price change has become effective. If the First Level User does not intend to accept the price change, the First Level User may freely withdraw from the Agreement by giving notice of cancellation of renewal pursuant to art. 6.2.
6.4 A First Level User who purchases a Subscription License shall be entitled to the so-called right of withdrawal. The First Level User may therefore withdraw from the Agreement within 14 days from the date of payment of the agreed fee, including without giving any reason for such withdrawal, and will receive a full refund of the amount paid.
6.5 Such right of withdrawal may not however be exercised by a First Level User who, prior to purchasing a Subscription License, has made use of another Subscription License, Trial License, Free License or Personalized License relating to the Plan of the new Subscription License for a period exceeding 14 days. In such case, the First Level User expressly acknowledges that the right of withdrawal will terminate 14 days after the commencement of the first Subscription License, Trial License, Free License or Personalized License. Furthermore, the right of withdrawal cannot be exercised by the First Level User who has used the Software during the period provided for exercising this right.
6.6 The granting of the Subscription License is subject to the condition that the First Level User actually pays the due fee. Failing this, the Licensor will not activate the User Account.
6.7 In Trial License (Art. 3.3) and Free License (Art. 3.4) cases, no amount shall be due by the User to the Licensor as license fee. Conversely, in the case of a Personalized License (Art. 3.5) the terms and conditions of payment will be defined by means of a separate agreement between the Licensor and the End user.
Updates and upgrades
7.1 The Licensor may, from time to time and at its sole discretion, develop and provide the User with updates to the Software in order to eliminate any defects and offer new or improved functions.
7.2 The right to use updates is based on the applicable license model and the User's right to use the Software. The User is only entitled to use an update and an upgrade if the User is entitled to use the Software. Updates do not grant the User any additional or extended right of use of the licensed Software.
7.3 The User acknowledges and agrees that updates may, at the sole discretion of the Licensor, result in the modification or deletion of certain features of the Software or consist of replacements or migrations (even partial) of the Software.
Maintenance and assistance
8.1 The Licensor will only provide maintenance and support for the Software remotely and in the manner set out below.
8.2 In particular, the User will have access to a 24h*7 ticket service, which can be found in the "Support/Ticket" section of the User Page, for technical and operational clarifications on the use of the Software and/or malfunctions of the Software.
8.3 In any case, even if the assistance service is not sufficient to solve the problems detected by the User, the latter shall have no claim against the Licensor for any reason and/or title whatsoever.
Open source software
9.1 With this Agreement, the User acknowledges that the Software may contain open source code. Nothing in this Agreement shall limit the User's rights under any open source license. The User acknowledges that the open source software license exists exclusively between the User and the relevant open source software licensor.
9.2 The term "open source software" means any software or component thereof or technology subject to an open source license. Open source licenses are generally licenses that make a source code available for modification and distribution free of charge, but may also apply to technologies received and distributed in object code form only. Examples of open source licenses include (i) GNU General Public License (GPL) or Lesser General Public License (LGPL), (iii) OpenSSL License, (iv) Mozilla Public License, (v) Berkeley Software Distribution (BSD) License, and (v) Apache License.
Intellectual Property Rights
10.1 The User acknowledges that the Licensor is the exclusive owner of all Intellectual Property Rights relating to the activities exercised by the same and any product offered by the same, with particular reference to those inherent, in whole or in part, in the Software, which are, and shall remain, the sole and exclusive property of the Licensor.
10.2 All registered trademarks, de facto trademarks, distinctive signs, company names, firms and signs, logos, domain names and any other characterization relating to the trademarks "VIDAOO" and "XENIALAB" are the exclusive property of the Licensor. The Agreements do not give the user the right to use any of these signs, either for commercial or non-commercial purposes.
10.3 The User warrants not having registered or deposited in any territory, and that it will not register or deposit, or cause to be registered or deposited, and that it will not make any application to register or deposit in its own name or in the name of any third party, any know-how, copyrights, trademarks, designs, models, trade names or any other distinctive sign which is in any way identical, similar or confusable with those owned by the Licensor and/or the products offered by the Licensor.
10.4 The User shall not be allowed to act independently for the out-of-court and/or legal protection of the Software and/or the Intellectual Property Rights. On the contrary, the Licensor alone shall be entitled to take all decisions relating directly or indirectly, in whole or in part, to the defence of the Software and/or the Intellectual Property Rights in any administrative or judicial forum.
Third-party products or services
11.1 The User acknowledges that there may be links or other features in the Software that facilitate access to third-party websites, services and/or products independent of the Licensor. These features are provided solely as an aid to the User. However, such third-party websites, services and/or products are not under the control of the Licensor and the Licensor is not responsible for and does not endorse the content or practices of such related websites or any information or materials contained therein.
11.2 The User acknowledges that in order to enable the operation of the Software, the Licensor makes use of services offered by third parties and the following are examples of services offered by Amazon Web Services, Inc.:
Amazon Elastic Container Service (Amazon ECS);
Amazon Elastic Compute Cloud (Amazon EC2);
Amazon Simple Storage Service (Amazon S3);
Amazon CloudFront;
AWS CodeCommit;
AWS CodePipeline.
11.3 The interaction with any related website will be subject to the User's independent assessment. The User hereby waives any and all claims against the Licensor with respect to such websites or third-party products or services and the use of such third-party websites, products or services. The User is invited to read the terms and conditions and privacy policy of visited third-party websites as well as their terms and conditions.
Duration
12.1 This Agreement is effective from when the User clicks the "I ACCEPT" button at the end of this document, registers an Account, purchases a Plan or otherwise begins using the Software. Once accepted, the Agreement remains valid for as long as the User uses the Software.
12.2 Without prejudice to clause 12.1 above, the Agreement shall cease to have effect:
in the case of a Subscription License, upon exercising the right of withdrawal in accordance with art. 6.4 or upon completion of the exercising of the right of termination upon renewal in accordance with art. 6.2;
in the case of a Trial License, 30 days after registration of the Account;
in the case of a Free License or a Personalized License, after the expiry of the term determined by separate agreement with the Licensor.
12.3 Upon expiration of the term of the Agreement, the Licensor will delete the Account and all Content, and the User will not be able to use the Software
12.4 All the provisions of this Agreement, with the exception of articles 4, 5, 10, 14, 15 and 17, shall continue to apply after this period.
Express termination clause
13.1 The Agreement shall be automatically terminated if the User violates the provisions of articles 2.2, 2.3, 5.1, 5.2, 5.3, 5.4, 5.5, 5.8, 5.9, 5.13, 6.1, 6.2, 6.6, 10.1, 10.2, 10.3 and 10.4 of the Agreement, each of which is deemed to be a serious and material breach of agreement.
13.2 In such case event, the Account will be removed as well as any Content, without the User being entitled to make any claim against the Licensor. This is without prejudice to the Licensor's right to compensation for any damages suffered as a result of the User's serious breach.
Severability, separate actions and assignment
14.1 The nullity, unenforceability and/or ineffectiveness of any provision contained herein, or even of several provisions contained herein, shall not affect, in a negative sense, the validity, enforceability and/or effectiveness of the remaining provisions of this Agreement, and shall not be a cause for its nullity and/or cancellation.
14.2 Any acquiescence to conduct contrary to the provisions hereof shall not in itself create any right on the part of the parties, nor shall such acquiescence modify the obligations of the parties, nor shall it be construed as acceptance by either party of any default by the other.
14.3 The Licensor may assign this Agreement or any of its rights hereunder in whole or in part to third parties and may also delegate the performance of any of its obligations under the Agreement. The User may not assign the Agreement to third parties, either in whole or in part, nor transfer or sub-license its rights under the Agreement to third parties.
Applicable law and jurisdiction
15.1 Unless otherwise provided for under a mandatory law of a member state of the European Union or of another jurisdiction, this Agreement, as well as any other agreement connected therewith, shall be governed by and construed in accordance with Italian law, while any dispute that may arise between the Parties in connection with this Agreement shall be subject to the exclusive jurisdiction of the Court of Milan, without application of the relevant rules of private international law.
15.2 In any case, in the event of any dispute, the User agrees to first try to find an amicable solution by contacting the Licensor. If the dispute is not resolved within 30 days of the Licensor’s receiving such contact, any resulting legal action shall be resolved in accordance with the foregoing provision.
Communications
16.1 Any communication from the User under this Agreement shall be sent in writing to the following addresses:
Xenialab S.r.l., in 20037 - Paderno Dugnano (MI), Italy, Via I Maggio, no. 13;
Email: amministrazione@pec.xenialab.it
Consumers’ rights
Nothing in this Agreement is intended to limit any of the User's rights that are mandatory under the Law applicable to this Agreement, or any other Law applicable in the place where such Content is transmitted and/or received and/or where the User has its residence or registered office. For this reason, any mandatory provision provided for by these rules for the protection of the User, will be considered applicable to the same even if in contrast with the provisions of the Agreement. All other provisions shall apply.
The User accepts all the provisions of the Agreement, guaranteeing that he/she has fully understood their meaning and every legal consequence.
The User also accepts the following specific clauses:
1. Object of the Agreement
2. Types of License
3. Licensor's Liability
4. User’s Liability
5. Fee
6. Updates and Upgrades
7. Maintenance and assistance
10. Third-Party Products or Services
11. Duration
12. Express termination clause.
13. Applicable law and jurisdiction