The present terms (the “Terms”) govern the use of the Product of the Company by the Customer. The Customer needs to register for and create an Account in order to make use of the Product. Prior to the successful creation of an Account, the Customer must explicitly accept these Terms and the Data Processing Agreement. In order to accept these Terms for itself or on behalf of a Customer, the person must have the legal capacity to do so.
The Customer will only receive confirmation of the successful creation of an Account and the necessary Login Credentials from the Company, after the Company was notified of the acceptance of the Terms and the Data Processing Agreement. The creation of an Account automatically results in the conclusion of a binding agreement between the Company and the Customer.
Account: means the primary means for a Customer to access and use the Platform;
Affiliate:means, with respect to a Party, any entity that controls, is controlled by or is under common control with such Party. For purposes of this definition, “control” means the power to direct or cause to direct the management and policies of such entity, whether through ownership of voting securities, by contract or otherwise.
Authorization: means the set of rights and privileges within the Platform assigned to a User by the Company on behalf of a Customer
Business Day: means any calendar day other than a Saturday, Sunday, or national holiday in Belgium.
Company: means Waylay NV, a private limited company established under the laws of Belgium, having its principal place of business at Blekersdijk 33A, 9000 GENT, Belgium and registered in the Belgian Commercial Register under company number 0544.746.258 (RPR Gent, district of Gent);
Company Content: means any data and information available through, or contained in the Website or the Platform. This may include HTML, text, white papers, press releases, data sheets, product descriptions, software, FAQs, graphics, articles, photographs, images, illustrations, articles, documents, brochures, presentations, audiovisual works, other informational materials and any comments.
Compelled Disclosure: means the disclosure of the Customer Content by the Company according to and as required by Belgian Law.
Customer: means a natural or legal person that accepts these Terms order to use the Product in pursuit of its professional activities.
Customer Content: means any information, data or content, including, without limitation, any and all software (whether in object or source code format), files, text, graphics, images, photos, video, audio, inventions (whether or not patentable), works of authorship, ideas and other materials provided by Customer to the Company, or uploaded to the Platform by the Customer, in connection with Customer’s use of the Product.
Customer Solution: means Customer’s commercially available smart connected-device solution (which may be hardware, software or a combination of both) (i) that is managed and/or sold by the Customer; and (ii) into which the Products are integrated, or with which the Products are combined, in accordance with the License granted to the Customer.
Data Processing Agreement: means the terms and conditions regarding the Company’s processing of Personal Data (acting as a processor) on behalf of the Customer, as further set out in these Terms and in a separate agreement entered into by the Customer as part of the registration process for the Account.
End User: means any final licensee (either an individual or a company) that is granted access to the Portal as part of the Customer Solution for its own internal use and not for resale or other commercial distribution.
Fees: means the applicable Platform and/or Service Fees.
Force Majeure: means the conditions that occur independently of the will of the parties and prevent the performance of the agreement, including labour disputes, fire, mobilisation, seizure, embargo, ban on currency transfers, uprisings, acts of terrorism, lack of transport, general shortage of raw materials, and restrictions on energy consumption (non exhaustive list).
Hosted Environment: means the computer infrastructure, wherever located, in which the Platform is installed and running when accessed and used by the Customer, including but not limited to, any private or public cloud environments, which may be owned or leased either by the Company or a third-party (e.g. Amazon Web Services or Google).
License: means the Customer’s limited, irrevocable, non-exclusive, non-assignable, non-transferable right to use the Products in accordance with article 5.2 of these Terms.
Login Credentials: means a personal username and password to be used by the Customer to log in to its Account.
Order Form: means a Company order form, pursuant to which Customer may order Professional Services form the Company, as available on the Platform;
Party: means either the Company or a Customer.
Personal Data: means any information relating to an identified or identifiable natural person (‘data subject’) within the meaning of Regulation (EU) 216/679 (General Data Protection Regulation).
Platform: means the multi-tenant cloud platform developed by the Company allowing Customers to develop, run and manage cloud accessible software applications, including all associated documentation, updates, upgrades, new releases and other components or materials provided therewith, as made available by the Company to the Customer pursuant to these Terms.
Platform Fee: means the fee to be paid by the Customer to the Company for the use of the Platform in the context of these Terms.
Portal: means the multi-tenant data visualization and dashboard portal that integrates with the Platform and that is made accessible to the Customer in the Hosted Environment.
Product: means the Website, the Platform and the related (Standard or Professional) Services as provided by the Company.
Professional Services: means additional personal support, technical and maintenance services provided by the Company to the Customer on an ad hoc basis, other than Standard Services.
Services: means the Standard and Professional Services.
Service Fee: means the fee to be paid by the Customer to the Company for Professional Services, in accordance with the Company’s then-current pricing schedule set forth on the Website or as specified in during the registration process for the Account.
Service Providers: means the third-party service providers that are contracted by the Company to perform certain services or provide certain products.
Standard Services: means cloud computing services provided by the Company at the reasonable request (by e-mail) of the Customer consisting of commercially reasonable:
as further set out in these Terms and that are related to the use of the Platform.
Tenant: means a Company’s administrative domain providing access to the Customer Content relating to one or more End Users. The Customer may access the Customer Content stored or processed within such Tenant via the Platform.
Terms: means these terms and conditions that govern the use of the Product by the Customer.
Update: means amendments of the Platform, which may include minor revisions, functionality and/or performance enhancements, features, error corrections and bug fixes that are required to maintain or improve the Platform’s functionality. For the avoidance of doubt, any upgrade or material amendment of the Platform which contains new modules that are separately licensed by the Company to its customers shall not qualify as an “Update”.
User: means a natural person granted with the Authorization to use the Account on behalf of a Customer.
Website: means the compilation of all web documents and any other linked pages, features, content, or application services offered from time to time by the Company made available via either www.waylay.io or its subdomains or domains with identical names under other top domains and owned by the Company.
Any information provided by the Customer related to the creation and registration of an Account must be accurate, current and complete. The Customer must also update its information so that the Company may send notices, statements and other information to the Customer by email or through its Account.
The Customer is responsible for any and all actions taken through any of its Accounts. As a condition of being permitted to create an Account, the Customer represents and warrants that it:
Upon successful registration of the Account, the Company will provide the Customer with the Login Credentials.
The Customer is responsible for maintaining the confidentiality of the Login Credentials. The Customer agrees to immediately notify the Company of any unauthorized use of its Login Credentials or Account(s), or any other breach of security related to its Account of which it becomes aware. The Company shall not be liable for any loss or damage arising from Customer’s failure to keep its Login Credentials secure.
If the Customer has designated Users and granted them Authorization, such Users will be deemed to be authorized to act on behalf of the Customer when using the Account.
The Company is not responsible for and shall bear no liability for verifying the validity of Authorization of any User.
However, the Company may, in its sole discretion, request additional information or proof of the Users’ credentials. If the Company is not certain if a User has been granted Authorization, the Company may, in its sole discretion, prevent such User from accessing the Platform.
The Company reserves the right, at its sole discretion, to change, modify, add, or remove portions of the Terms.
Any modification to the Terms shall be automatically notified to the Customer (e.g. by sending an email to the billing or technical contact the Customer has designated, through the Account of the Customer, by posting it on the Website, etc).
Prior to any further use of the Product, the Customer must explicitly accept the modified Terms.
If the Customer objects the modification to the Terms and does not accepts these modifications, the Customer will no longer have the right to make use of the Product and the Account as from the end of the current Licence Term.
Subject to the Terms, the Company will make the Platform, the Services, the Company Content and Customer Content available to the Customer 24 hours a day, 7 days a week pursuant to these Terms except for:
The Customer agrees that by using an Update, the Customer voluntarily terminates Customer's right to use any previous version of the Product. Any obligations that the Company may have to support previous versions of the Product may end upon the availability of this Update. Updates may be licensed to the Customer by the Company subject to additional or different terms than these Terms.
The Company may amend the Products at any time in view of improving the availability or functioning of any feature, database or the Content. Only when such amendments constitute material changes and/or relate to the key features and functionalities of the Platform or Services, such amendments shall be subject to the Company’s prior reasonable notification of the Customer.
The Company will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Customer Content. Those safeguards include, but will not be limited to, taking measures for preventing access, use, modification or disclosure of the Customer Content, by the Company’s employees except:
The Company may use Service Providers to perform (part of) the Services. The Company will make commercially reasonable efforts to ensure that data transfers to Service Providers meet requirements applicable to the Customer’s processing of data and will provide information on such data transfers in these Terms for the Customers consideration. The Customer authorizes the Company (a general written authorization in the meaning of Article 28 (2) of Regulation (EU) 2016/679) to appeal to Service Providers for the purpose of ensuring the effective performance of the Platform and the provision of the Services.
In the event of a Compelled Disclosure, the Company will use reasonable efforts to provide the Customer with prior notice of the Compelled Disclosure (to the extent legally permitted) and the Customer shall provide reasonable assistance, at its own cost, if the Customer wishes to contest the Compelled Disclosure. If the Company is compelled by law to disclose Customer Content as part of a criminal and/or civil proceeding to which the Company is a party, and the Customer is not contesting this disclosure, the Customer will reimburse the Company for its reasonable cost of compiling and providing secure access to the Customer Content.
The Company is not obliged to pre-screen, monitor or filter any Customer Content in order to discover any unlawful nature therein. However, if such unlawful Customer Content or the action of its unlawful processing is discovered or brought to the attention of the Company or if there is reason to believe that certain Customer Content is unlawful, the Company has the right to:
If the Company is presented convincing evidence that the Customer Content is not unlawful, the Company may, at its sole discretion, restore such Customer Content which was removed from the Platform or annul the suspension or restriction of the access of the Customer to the Account.
In addition, in the event the Company believes in its sole discretion Customer Content violates applicable laws, rules or regulations or the terms of these Terms, the Company may (but has no obligation), to remove such Customer Content at any time with or without notice.
The Customer acknowledges that the Company has no control over, and no duty to take any action regarding:
The Platform, the Company Content and the Website are provided on an “as is” and “as available” basis, without warranties of any kind, either express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, non-infringement, or that use its will be uninterrupted, secure or error-free. No advice or information, whether oral or written, obtained from the Company or through Website will create any warranty not expressly made herein.
The Company shall provide the Customer with Login Credentials after it successfully created an Account. If the Customer has designated several Users, each User will be provided with separate Login Credentials.
The Customer and each User are responsible for keeping confidential all Login Credentials associated with an Account. The Customer must promptly notify the Company of:
The Platform, Website and the Company Content are owned by the Company. Any Content that the Company may furnish shall be made available to Customer, and may remain in Customer’s possession pursuant only to a limited, restrictive, nonexclusive and non-transferable license under which Customer may use such Content solely for the purpose of using the Platform and for no other purpose.
Subject to the Terms, the Company hereby grant the Customer a limited, irrevocable, non-exclusive, non-assignable, non-transferable right, without the right to sub-license, during the License Term, to:
The Customer shall not itself, or through any Affiliate, agent, (sub)contractor or other third party:
The Customer acknowledges that all Customer Content accessed by the Customer using the Platform is at the Customer’s own risk and the Customer will be solely responsible for any damage or loss to any party resulting therefrom.
Under no circumstances will the Company be liable in any way for Customer Content including, but not limited to, any errors or omissions in any Customer Content, including without limitation reports generated by the Platform, or any loss or damage of any kind incurred in connection with use of or exposure to any Customer Content posted, emailed, accessed, transmitted, or otherwise made available via the Platform.
The Customer, not the Company, remains solely responsible for all Customer Content, including messages, that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Platform.
The Company shall provide commercially Standard Services to the Customer and its authorized User at the reasonable request of the Customer. The Company shall make commercially reasonable efforts to respond to enquiries of support from a Customer utilizing the contacts set forth below within 1 Business Day of the request. Any enquiries of support should be made by e-mail to email@example.com.
The Company shall provide Professional Services to the Customer and its authorized User at the request of the Customer and that are purchased by Customer. Any enquiries of support should be made by e-mail to firstname.lastname@example.org or as set forth on the applicable Order Form.
In no event will the Customer be entitled to the benefits of the Services when access to its Account has been suspended by the Company for any reason.
The License is granted for limited terms of one month each (a “License Term”) which will be renewed automatically, unless terminated by either Party pursuant to these Terms.
The License and the use of the Platform by the Customer are subject to the payment of Platform Fees.
The Platform Fees are calculated based on the Customer’s consumption of volume based components (i.e. on a “Pay As You Go” basis) as indicated during the Registration Process in accordance with the Company’s then-current pricing model set forth on the Website. The amount of Platform Fees due to Waylay at any time during the License Term is made available to Customer in the Portal as part of the Customer’s ‘billing report’.
The Platform Fees will be automatically charged by the Company to the Customer at the end of each month through the Customer’s credit card associated with its Account.
The Company may in its sole discretion choose to adjust the Platform Fees in respect of any by providing a notification to the Customer in accordance with section 11.1 below at least 20 Business Days prior to the end of the then current month. In addition thereto, the amended Platform Fees shall apply as from the following month. The Customer must explicitly accept the amended Fees. In the absence of such explicit acceptance, the License will be deemed terminated at the end of the then current License Term.
The optional use of Professional Services by the Customer provided by the Company is subject to the payment of Professional Services Fees. The Professional Services Fees are calculated in accordance with the Company’s then-current pricing schedule set forth on the Website. The Professional Services Fees will be charged by the Company to the Customer at the end of each month.
The Company may in its sole discretion choose to adjust the Professional Services Fees in respect of any by providing an email notification to the Customer at least 20 Business Days prior to the end of the then current month.
In addition thereto, the amended Professional Services Fees shall apply as from the following month. The Customer must explicitly accept the amended Fees. In the absence of such explicit acceptance, the License will be deemed terminated at the end of the then current License Term.
All amounts will be invoiced on a monthly basis trough the Customers’ credit card linked with the Account.
The Customer will be issued an electronic invoice.
The Company and the Customer agree that all payments to Company shall be made without any deductions or set-offs, except if and as prescribed by law.
Sums payable under these Terms are exclusive of import duties, value added tax and any similar taxes which (if applicable) shall be paid by the Customer at the rate and in the manner for the time being prescribed by law.
The Customer is responsible for providing complete and accurate billing and contact information to notifying the Company of any changes to such information.
If any Platform or Professional Services Fees owing by the Customer cannot be paid through the Customer’s credit card linked with the Account, the Company may suspend the access to the Platform until such amounts are paid in full.
If the Customer uploads Customer Content to the Platform, such Customer Content and any processing of such Customer Content must be in compliance with the terms of these Terms and the applicable law.
All rights, title and interest in and to the Customer Content belong to the Customer or third persons (including Users, persons and Organizations) whether posted and/or uploaded by the Customer or made available on or through the Platform by the Company.
By uploading Customer Content to the Platform, the Customer authorizes the Company to process the Customer Content in accordance with the Company’s Data Processing Agreement.
Note that the Platform might be hosted outside of the Company’s Host Environment and hence some of the Customer Content will be transmitted and/or processed outside of the Company’s systems, subject always to the provisions of the Company’s Data Processing Agreement.
The Customers also warrants, represents and agrees that it will not contribute any content or otherwise use the Platform in a manner that:
The Company does not guarantee any accuracy with respect to any information contained in any Customer Content. All information contained in Customer Content is the sole responsibility of the person or entity from whom such Customer Content originated. Therefore, the Customer (and not Company) is entirely responsible for all Customer Content that is uploaded, posted, transmitted, or otherwise made available through the Platform, as well as for any actions taken by the Company, Customers or Users as a result of such Customer Content.
For the purposes of Article 28 of Regulation (EU) 2016/679, the Customer, acting as a data controller, and the Company acting as the data processor, agree to the terms of the Data Processing Agreement entered into between them during the Customer’s registration process to the Account, which is incorporated into these Terms by reference.
In addition thereto, the Customer hereby grants the Company a general authorization in the meaning of Article 28 (2) of Regulation (EU) 2016/679 to engage third-parties as a (sub-)processor for the purposes of providing the Product.
Within the framework of the performance of these Terms, the Company can only be held liable for intentional damages or gross negligence, or for the non-performance of the Company’s essential obligation under these Terms, which is to provide reasonable access to the Platform to the Customer. Any other liability of the Company shall be excluded.
The Company cannot be held liable for any damages resulting from the use of the Platform that is hosted on a third-party Hosting Environment (e.g. made available by Amazon Web Services, Microsoft, Google or any other company), nor for damages resulting from the use of inappropriate telecommunication services by these third-parties.
Without prejudice to the generality of the foregoing exclusion, the Company’s liability towards the Customer shall be exclusive of any responsibility for any form whatsoever of consequential damages such as loss of profits, loss of income, loss of use, loss of data, loss of goodwill and/or any action whatsoever that would be brought by third parties against the Customer.
In any case, the aggregate liability of the Company remains limited at most to the lowest of the following amounts: (i) either the amount of the Fees that the Customer has paid to the Company during the 12 months preceding the commencement of the action (ii) or an amount of 1.500 EUR, regardless of whether the action was brought on a contractual or non-contractual basis.
Customer acknowledges that the aforementioned limitations of the Company’s liability were taken into account by the parties when determining the Fees payable by the Customer under these Terms, it being understood that the resulting risk allocation helped to keep the Fees low.
For the avoidance of doubt, the Company has no liability in respect of, and shall not provide any support for, any third-party hardware, software or any services, including such hardware, software or services not provided by the Company.
The Customer will indemnify and hold the Company, its parents, subsidiaries, affiliates, officers, and employees harmless (including, without limitation, from all damages, liabilities, settlements, costs and attorneys’ fees) from any claim or demand made by any third party due to or arising out of your access to, or use of, the Product, the Customer’s violation of these Terms or applicable laws, rules or regulations in connection with the Customer’s use of the Product, or the infringement by the Customer or any third party using the Account of the Customer of any intellectual property or other right of any person or entity.
All intellectual property rights relating to the Product, as well as any derivatives, modifications, improvements, updates or versions provided by Waylay, as well as all intellectual property rights to any Company’s Content and/or accompanying material, such as images, logos, drawings, texts, documentation, know-how, and all adaptations and modifications thereto, belong exclusively to the Company and/or its respective suppliers. No rights are granted to the Customer or its Users, except for the License in accordance with these Terms.
The Company shall indemnify and hold the Customer harmless against any claim by third parties for (alleged) infringements of any intellectual property rights relating to any part of the Platform, provided that the Customer immediately informs the Company in writing if it becomes aware of any (possible) infringement of any of the Company’s intellectual property rights. The Customer shall cooperate, at the Company’s request and expense, in the conduct of any ((extra)judicial) proceedings concerning the same.
Unless explicitly agreed otherwise between the Parties, either Party may terminate the License and the Customer’s corresponding use of the Product at any time as follows:
In addition thereto, the Company may suspend the Customer’s Account without notice in case the payment of any Fees due by the Customer under these Terms is not effected or cannot be completed.
Any notice required to be given under these Terms shall be either through the Account (as indicated in these Terms) or in writing and sent to the email address or to Customers’ address provided by Customer to the Company during the registration process. Notices will be deemed effective:
If any term, condition or provision of these Terms is held to be invalid, unenforceable or illegal in whole or in part for any reason, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties. The validity and enforceability of the remaining terms, conditions or provisions, or portions of them, shall not be affected.
Neither party shall be responsible for delays or failures in performance, other than the obligation to pay money, resulting from Force Majeure.
The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the agreement between the Parties shall otherwise remain in full force and effect and enforceable.
The Company may assign any rights and obligations under these Terms without the consent of the Customer.
No agency, partnership, joint venture, or employment is created as a result of the agreement between the Parties and these Terms and the Customers does not have any authority of any kind to bind the Company.
These Terms shall be governed by and construed in accordance with Belgian law, without regard to conflicts of law principles that would require the application of any other law.
Any action or proceeding arising out of or in relation to these Terms shall be brought in the courts of Ghent, Belgium.
Each of the parties irrevocably submits to the exclusive jurisdiction of such court(s) in any such action or proceeding and waives any objection it may now or hereafter have to venue or convenience of forum.