Terms of Use

LEGAL NOTICE & TERMS OF SERVICE

Last Revision: 17th July 2023

Legal Notice

The service and the site, as defined below, are edited by AreTheyHappy doing business as GuestXM, a company organized under the laws of Belgium with the trade and companies’ registry number 0665.822.846 and whose registered office is located at:

• NV Kleindokkaai 17
• 9000 Gent Belgium

If you have any questions, please contact GuestXM support using this email address: support@guestxm.com.

Terms of Service

1. General provisions / Definitions

Please take the time to read these AreTheyHappy dba GuestXM terms of service (“Terms of Service”) carefully.

AreTheyHappy (“GuestXM” or “us” or “we” or “our”) offers a software application as a service (the “Service”, also referred to as “GuestXM”) that helps business owners, their social media managers and agencies (individually and collectively “Customer(s)”) in the management of their social media profiles on various Supported Platforms. By using our Service, you agree to be bound by these Terms of Service. If you do not accept these Terms of Service you shall not (and shall not have the right to) use the Service.

We reserve the right, at any time, to update and change any or all of these Terms of Service, in our sole discretion. If we do so, we will post the modified Terms of Service on guestxm.com (the “Site”). But, we will also do our best to directly notify you of any changes that materially impact these Terms of Service. Continued use of the Service after any such changes have been made shall constitute your consent to such changes. If a change has a material adverse impact on you, and you have contracted and prepaid for a certain term, you may notify us within 30 days after being informed of that change that you do not agree with the change. If you do so, we will delay applying the change to you until your prepaid term ends, or, at our sole discretion, allow you to cancel your account, and we will refund any prepaid amount pro rata to you. If you use the Service after your prepaid term ends, all changes will apply to you. You are responsible for regularly reviewing the most current version of these Terms of Service, which will be available on our website: guestxm.com/eu-terms-of-service. When we change these Terms of Service, the date of “Last Revision” will be signified.

Wherever used in these Terms of Service, “you”, “your”, “Customer”, or similar terms means the person or legal entity accessing or using the Service. If you are accessing and using the Service on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms of Service.

“Account” shall mean an account with GuestXM to use the Service;

“Agreement” shall mean these Terms of Service, including any annexes thereto which form an integral part thereof and which in their totality, govern your relationship with GuestXM;

“Applicable Law” shall mean the Laws of Belgium;

“Authorized User” means individuals who are directly accessing the Service via an online sign-up process, or individual users authorized and/or invited by you to use the Service and who you have supplied access to. Authorized Users may include your employees, consultants, contractors, agents, or other designees. An authorized user is assumed to be at least 18 years of age.

“Benchmark Data” means Data compiled by GuestXM and aggregated with other customer and other data for benchmarking purposes, all of which Data has been deidentified and anonymized. Benchmark Data specifically excludes any data considered your personal data or information.

“Confidential Information” shall mean all information provided by you or us (the “Disclosing Party”), to the other party (the “Receiving Party”), whether orally or in writing, which information is designated as being confidential. Provided that for all intents and purposes, Confidential Information shall not be construed to include any information that is (a) publicly known at the time of disclosure or subsequently becomes publicly known through no fault of the Receiving Party; (b) discovered or created by the Receiving Party before disclosure by the Disclosing Party; (c) learned by the Receiving Party through legitimate means other than from the Disclosing Party or Disclosing Party’s representatives; or (d) is disclosed by the Receiving Party with the Disclosing Party’s prior written approval;

“Customer” means business owners, their social media managers and agencies;

“Customer Content” means all information and data (including text, images, photos, videos, audio, and documents) or any other content in any media and format provided or made available to GuestXM by or on your behalf in relation to the use of the Service;

“Data” shall mean content, data, information, and Confidential Information relating to your business, some of which may not be publicly available, including but not limited to technical and commercial information concerning Your, or any of your parent company’s or subsidiaries” business, systems, processes, software and services, as the case may be;

“Disclosing Party” shall have the meaning given to this term in the definition of “Confidential Information”;

“Fair Use Policy” means the limits placed on usage as described in this Agreement;

“Intellectual Property Rights” shall mean the copyright, including the moral and related rights, rights to use, musical works, literary works, designs, databases or any other copyright protected works, trade names, protected business identifiers, patents, utility models and trademarks, and all other industrial and intellectual property rights, in each case whether registered or unregistered, which currently subsist, or will subsist, now or in the future, in any part of the world;

“Mentions” means the information, including links, posts, and excerpts, that has been made publicly available and obtained by GuestXM on your behalf from the Supported Platforms, and data derived therefrom, including reports, summaries, graphs, and charts;

“Order Form” means an GuestXM’s ordering document referencing these Terms of Service entered into by both parties that (i) identifies the Services ordered by you from GuestXM, (ii) sets forth the Subscription Term and prices for the Services to be paid by you, and (iii) other restrictions or terms applicable to the Services or as otherwise required by GuestXM.

“Privacy Policy” means the GuestXM’s privacy policy available at the following link: guestxm.com/eu-privacy-policy;

“Receiving Party” shall have the meaning given to this term in the definition of “Confidential Information”;

“Renewal Term” shall have the meaning given to this term in Clause 5;

“Service” means services provided to you by GuestXM based on the plan you have purchased;

“Site” shall mean the websites www.guestxm.com and my.guestxm.com, in addition to any sub-pages that are integrated within this website;

“Subscription Plans” means one of the different subscription packages through which you can use the Service as further described on the Site;

“Subscription Term” shall mean the period of time for which subscription to the Service shall be made available by GuestXM to you, subject to your adherence to the obligations undertaken by virtue of this Agreement;

“Supported Platform(s)” means the social networking site(s) currently supported by the Service, including Facebook, Instagram, Google My Business, TripAdvisor, Yelp, Foursquare, and other social networks as described on the Site;

“Taxes” means all taxes, assessments, charges, fees, and levies that may be levied or based upon the sale or license of goods and/or services, as the case may be, including all sales, use, goods and services, value added, and excise taxes, custom duties, and assessments together with any instalments with respect thereto, and any interest, fines, and penalties with respect thereto, imposed by any governmental authority (including federal, state, provincial, municipal, and foreign governmental authorities);

“Terms of Service” means these terms of service;

“Third Party/ies” shall mean any persons, whether legal or natural, which are neither you nor GuestXM;

“Trial Period” shall mean free access that may be provided to you by GuestXM for a limited and established period of time, to the Service, which shall be granted at the sole discretion of GuestXM, which access may be revoked by GuestXM at any time without need of any prior notice;

“Updates” means updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches, and modifications that we provide to our Service.

2. Account Registration, Access and Disclosure

To use and benefit from the Service, you must create an Account by (a) completing a registration form, by providing us with all required information and activating the “I accept the Terms of Service” check-box and clicking on the “Start Using GuestXM” button, (b) or entering into an Order Form subject to these Terms of Service, as determined by GuestXM.

If you create your Account on-line, you agree to provide us with complete and accurate information upon registration and to keep such information accurate and up-to-date during your course of use of the Service. You are advised to keep your login credentials strictly confidential and to refrain from disclosing these to anyone. We shall not be held responsible for unauthorized access to your account arising from your failure to keep your login credentials safe and secure.

If you are using the Site or Service for and on behalf of a legal entity you are required to fill-in the name of such legal entity in the signup form when signing up for the Service. This information can be updated at any time. If you are using the Site or Service for and on behalf of a legal entity, you shall be, and shall be presumed to be empowered by and/or properly authorised for and on behalf of that legal entity and you and the legal entity shall be jointly and severally subject to this Agreement. If you no longer remain a duly authorised representative of the legal entity, you shall be responsible for immediately informing GuestXM, in which case the legal entity shall remain subject to the Agreement, and the legal entity shall contemporaneously proceed to inform GuestXM of the new authorised representative. Until GuestXM has been notified of a new authorised representative, you shall remain responsible as aforesaid. GuestXM shall not be held liable should a person without the necessary power or who is a non-properly authorised person enters into this Agreement for and on behalf of a legal entity.

We reserve the right to access your Account and the information that you have provided but only for support, maintenance and servicing purposes or for any security-related, technical or billing reasons. Also, by sending us a support request, you grant us your prior consent to access your Account with the sole purpose of answering your request and/or solving any issues you might be facing.

GuestXM ensures the security of your Account information by putting in place technical and organizational measures (for more information please see our Privacy Policy). However, we remind you that you also have the duty to maintain the confidentiality of your user information and passwords and to promptly notifying GuestXM of any unauthorized use of your account, or breach of your account information or password. To the extent that such loss has not been caused due to gross negligence, willful misconduct, fraud or bad faith by GuestXM, GuestXM will not be liable for any loss that you may incur as a result of someone else using your username or password, either with or without your knowledge. To the extent allowable by the Applicable Law, you shall be liable for any expenses, including usage charges and fines, fees, civil judgments, and reasonable attorney’s fees for your intentional or negligent failure to safeguard user and password  information  and/or  promptly  notifying  GuestXM  about  any unauthorized use of your account or breach of your account information or password.

3. Extent of Services

The extent of the Service(s) to which you may have access to may be dependent on the relevant Subscription Plan.

Updates and Functionalities. You acknowledge that from time to time GuestXM may apply updates to the Service and that such updates may result in changes in the appearance and/or functionality of the Service (including the addition, modification, or removal of functionality, features, or content). GuestXM shall provide, implement, configure, install, support, and maintain at its own cost any and all updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches, and modifications to the Service (collectively, the “Updates”). You acknowledge that the Service interoperate with several Supported Platforms, and that the Service provided are highly dependent on the availability of such Supported Platforms. If at any time any Supported Platforms cease to make some or all of their features available to GuestXM (each an “API Change”), GuestXM may cease to provide such features to you without entitling you to refund, credit, or other compensation.

4. Subscription

We offer several different Subscription Plans for the Service. Your Subscription Plan is selected during your Account registration. Information about our Subscription Plans can be obtained from GuestXM. All fees for the Service are exclusive of VAT or any other taxes that may be applicable in your jurisdiction. You may upgrade your Subscription at any time during your Subscription Term, upon which we will apply the respective fees on a pro-rata basis.

Following your current Subscription Term, we reserve the right to amend the Subscription Plans and/or Subscription Term at any time or introduce new fees and/or subscription levels or charges. We will provide you with thirty (30) calendar days’ written notice in advance during which you will have the right to unsubscribe from, or change your current Subscription Plan, should you not agree with these amendments.

1. Subscription Term and Renewal

Trial Period. If you have been offered a trial period by GuestXM, the duration of the trial period is specified during the Account creation process or execution of an Order Form. At the end of the trial period, you will be required to provide your payment details if you have not already done so. If you’ve already provided your payment details, your account will be automatically charged on the displayed billing date on the billing section associated to your Account in the Service or set forth on an Order Form.

Subscription Term. The duration of your Subscription Term is specified on an Order Form.

Renewal Term. Unless GuestXM is notified in writing at least thirty business days (30) before the end of your current Subscription Term (or any subsequent Renewal Term) that you do not intend to renew your subscription, you will be enrolled into an automatic renewing cycle for the same term at the conclusion of the Subscription Term (the “Renewal Term”). This applies to all Subscription Plans involving payment, and works the same for both monthly and annual renewals. Any written notice of your intention not to renew shall be provided to the following email address: support@guestxm.com. If you cancel via email, the email must come from the registered GuestXM account owner.

2. Termination

You may terminate this Agreement at any time by requesting your account to be deactivated and deleted while logged into the Service. In the event this Agreement is terminated by you, you agree, without limiting any of our other rights or remedies, to pay all remaining fees payable through the remainder of your Subscription Term.

GuestXM may also terminate your right to use the Service with or without cause at any time. GuestXM shall notify you via email to your registered email account if we terminate your Account. Your obligation to pay accrued charges and fees accrued up to the date of termination, shall survive any termination of this Agreement. In the event of any termination of this Agreement, the limitations on your use of the Service as set forth in Clause 7 and our warranties as set forth in Clause 10 shall survive such termination.

Upon expiration of the Subscription Term, or termination, your Subscription Plan shall immediately cease to exist.

5. Limited Licences

Subject to this Agreement, GuestXM grants you a limited, revocable, non- exclusive, non-transferable and non-assignable licence to use GuestXM as a software as a service (SaaS) solution for commercial use subject to the other terms of this Agreement. You hereby agree not to resell any part of the Service. You shall not transfer, lease, sub-license, modify, reverse engineer, decompile or disassemble the Site and/or any part of the Service. You shall not copy, adapt, alter, modify, translate, or create derivative works of the Service without prior written authorization of GuestXM. You represent and warrant that you shall not use the Service for illegal purposes or for the transmission of information that may be classified as unlawful, libellous, abusive, obscene or that infringes any rights, including Intellectual Property Rights of others. You shall not permit Third Parties to use the Service, with the exception of clauses 2.5 and 2.6 above, including but not limited to shared use via a network connection, except under the terms of this Agreement. In order to protect the Intellectual Property Rights to the Service, you shall not circumvent or disable any technological features or measures in the Service. You shall not use the Service, including in conjunction with, any device, program, or service designed to circumvent any deployed technological measures, in an attempt to control access to, or the rights in, a content file or other work protected by intellectual property laws. Any such forbidden use shall constitute a material breach of this Agreement and shall prompt us, at our own discretion, to immediately terminate your right to access the Service. Any breach of this Clause shall make you liable for damages suffered by GuestXM.

6. Proprietary Rights

Except as otherwise stated herein, all rights, titles and interest in the Service and any content contained therein is the exclusive property of GuestXM, except as otherwise stated herein. Unless otherwise specified, the Service are for your limited use only and if you copy or download any information from this Site and/or Service, you agree that you shall not remove or obscure any copyright or other notices or legends contained in any such information.

You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, frame, create derivative works from, transfer, or otherwise use in any other way for commercial or public purposes, in whole or in part, any information, software, products or service obtained from the Site and/or the Service, except for the purposes expressly provided herein, without GuestXM’s prior written approval.

Except for those Intellectual Property Rights that are already owned, registered or vested in your name, or those Intellectual Property Rights that are created by or for you during the duration of this Agreement, all GuestXM trademarks, trade names, Service marks, logos and other Intellectual Property Rights in and to the Site and Service are proprietary to GuestXM. Your use of any marks on the Site and Service in any manner other than as authorized in this Agreement, or as authorized in writing by GuestXM, shall be strictly prohibited.

In the course of performing the Service, GuestXM will have access to some of your Data. All rights, title and interest in the Data is your exclusive property, except as otherwise provided for herein throughout this Agreement.

GuestXM shall not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, frame, create derivative works from, transfer, or otherwise use in any other way for commercial or public purposes, in whole or in part, any of your Data belonging to You, except for the purposes of the provision of performing the Service expressly provided for herein or for GuestXM’s creation and use of Benchmark Data, without any further prior need of approval or consent from You.

For the avoidance of doubt, GuestXM will keep your Data (except for Benchmark Data) confidential and maintain your Confidential Information in the strictest of confidence. In this respect, GuestXM will not disclose or permit disclosure of your Data to any unauthorized persons, and will only make such limited use as strictly necessary for GuestXM to perform the Service or its use of Benchmark Data. For the avoidance of doubt, all such rights to GuestXM to use your Data (except for Benchmark Data) shall be granted solely for the duration of this Agreement and in accordance with our Privacy Policy (guestxm.com/eu-privacy-policy).

You acknowledge and agree that GuestXM may disclose any Data if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any of your content and/or Data violates the rights of Third Parties; or (d) protect the rights, property, or personal safety of GuestXM, the Site, the Service, its users, and the public.

In the event that you provide GuestXM with any feedback, suggestions, comments or improvements with respect to the Site and/or Service, you hereby grant GuestXM with a non-revocable, sub-licensable and royalty free right and licence to make use of, copy, disclose, licence, and distribute such feedback, suggestions, comments or improvements in any manner without any obligations, of whatever kind, towards You. Nothing in this Agreement shall be construed as a limitation  on  GuestXM  to  make  use,  develop  and  market  any  service incorporating the feedback, suggestions, comments or improvements that you have provided.

For the avoidance of doubt, all such rights to GuestXM to use your Data shall (except for Benchmark Data) be granted solely for the duration of this Agreement.

7. Confidential Information

The person in receipt of Confidential Information (the “Receiving Party”) shall hold and maintain the Confidential Information in strictest confidence for the sole and exclusive benefit of the other party (for the purposes of this section, the “Disclosing Party”).

The Receiving Party shall ensure restriction of access to Confidential Information to its employees, contractors and Third Parties as is commercially and reasonably required and shall require those persons to sign and abide by nondisclosure restrictions at least as protective as those contained within this Agreement.

The Receiving Party shall not, without the prior written approval from the Disclosing Party, use for Receiving Party’s own benefit, publish, copy, or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of the Disclosing Party, any Confidential Information.

The Receiving Party shall return to the Disclosing Party any Confidential Information and all records, notes, and other written, printed, or tangible materials in its possession pertaining to Confidential Information immediately where the Disclosing Party so requests in writing. You acknowledge that Data aggregated into Benchmark Data by GuestXM cannot be returned to you.

8. Warranties

GuestXM warrants and represents to you that:

The Service is provided in accordance with the Applicable Law;

The Intellectual Property Rights in any material provided by GuestXM as part of the Service do not, to the best of GuestXM’s knowledge, infringe any Third Party’s Intellectual Property Rights when used in accordance with this Agreement;

GuestXM will only use your Data in accordance with this Agreement, including its annexes; and

GuestXM represents and warrants to you that it has all necessary rights and authority to perform the Service.

9. Limitations

In no event shall GuestXM, its owners, suppliers or any of their respective owners, directors, employees, contractors and/or agents be liable to you or any Third Party for any direct, indirect, special, exemplary, punitive or other consequential or incidental damages (including but not limited to any lost profits or revenue, interruption, loss of programs or other information, or any other pecuniary loss) arising directly or indirectly from (i) your use of or access to the Service, or any content, products or services distributed on or provided through the Site and/or Service, (ii) for any failure or interruption of the Site and/or Service; whether arising out of errors, omissions, loss of data, defects, viruses, interruptions or delays in operations or transmission or any other cause, whether based on warranty, contract, tort (including negligence) or any other legal theory, even if GuestXM or its suppliers have been expressly advised of the possibility of such damages.

In any event, and without prejudice to the above, GuestXM’s total maximum aggregate liability under this Agreement, including any annexes herewith, or in respect of the use or exploitation of any part or all of the Service, the content or user material in any manner whatsoever shall not exceed your monthly subscription fee (or the monthly equivalent of your annual fee).

10. Data Retention

GuestXM commits to securely storing your data during your Subscription Term and in accordance with your Subscription Plan’s timeframes. All data exceeding the stated timeframe will be routinely and permanently deleted from our systems.

You expressly acknowledge and accept that GuestXM does not provide any archiving or backup services, and may delete Data that is no longer in use and exceeds the timeframes stipulated in the applicable Subscription Plan. GuestXM expressly disclaims all obligations with respect to archiving, storage and backup of Data.

For more information, please see our Privacy Policy: guestxm.com/eu-privacy-policy

11. Assumption of Risk

You use the Internet solely at your own risk and subject to all applicable local, state, national, and international laws and regulations. While GuestXM has endeavoured to create secure and reliable Service, GuestXM is not responsible for the security of any information outside of its control. GuestXM shall have no liability for interruptions or omissions in Internet, network or hosting services. You assume the sole and complete risk of using the Service.

You hereby declare that you are aware that as a result of the global nature of the Internet and World Wide Web, the Site and/or Service are available online and may generally be accessible from anywhere in the world at any time. It is difficult to predict, but access to the Service may in fact not be legal by certain persons or in certain jurisdictions. Access to and use of the Site and Service are at your own risk and you shall be responsible for compliance with the laws of your jurisdiction and any jurisdiction in respect of which you use any part of the GuestXM service. You agree to comply with all local rules regarding online conduct and acceptable content in any generated content.

12. Links

The Service may include links to certain websites, materials, or content developed by Third Parties. GuestXM has not reviewed all of the sites linked to its website and/or Service and shall not be responsible for the contents of any such linked material. The inclusion of any link does not imply endorsement by GuestXM of such material and GuestXM shall not be held liable in respect of any links contained therein. Use of any such linked material shall be at your own risk. GuestXM reserves the right, in its sole and absolute discretion, to discontinue links to any other material at any time and for any reason.

13. Advertising

Unless you specifically withdraw your consent to this clause by sending an email at support@guestxm.com, you hereby acknowledge and consent to GuestXM making use of any of your marks, logos and trade names to identify you as GuestXM’s customer on GuestXM’s Site and/or Service, in addition to any other marketing material.

14. Enforcing Security

Actual or attempted unauthorized use of any of the Site and/or Service may result in the institution by us of criminal and/or civil prosecution. For your protection, we reserve the right to view, monitor, and record activity on the Site and/or Service without notice or further permission from you, to the fullest extent permitted by the Applicable Law, and only in accordance with this Agreement. This right extends to our review of tracking activity and details pertaining to claimed violations by You. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with the investigation or prosecution of possible criminal activity on any of the Site and/or Service.

15. Severability

If any provision of this Agreement is found, by any court having competent jurisdiction, to be unenforceable, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect to the maximum extent possible.

16. Indemnification

Our Indemnification Obligations: we agree to indemnify, defend, and hold you harmless from and against any claims brought by Third Parties arising from or relating to our violation of a Third Party’s Intellectual Property Rights directly arising out of your use of the Service in accordance with the terms of this Agreement. Notwithstanding the foregoing, we shall have no indemnification obligation with respect to any claims (i) arising out of or related to your Data (ii) to your violation of any applicable laws; (iii) your violation, whether alleged or actual, of any Third Party rights, including but not limited to data protection and privacy rights.

Your Indemnification Obligations: you shall indemnify, hold harmless and defend GuestXM, including any of its subsidiaries, officers, owners, partners, directors, employees, contractors, agents, subsidiaries, shareholders, licensors, suppliers and other partners (GuestXM “Indemnified Parties”), to the maximum extent permitted, in full and in perpetuity, and at your own cost, from any Third Party liabilities, claims, costs, expenses, obligations, losses or damages, excluding indirect damages and consequential loss that may arise from (i) your unauthorised use of any material obtained through the Site and Service; (ii) your use and access to the Site and Service which is not in accordance with this Agreement; and (iii) your violation, whether alleged or actual, of any Third Party rights.

Indemnification Procedures: The parties’ respective indemnification obligations above are conditioned on: (a) the indemnified parties giving the indemnifying party prompt written notice of the claim, except that the failure to provide prompt notice will only limit the indemnification obligations to the extent the indemnifying party is prejudiced by the delay or failure; (b) the indemnifying party has full and complete control over the defense and settlement of the claim; (c) the relevant indemnified parties providing assistance in connection with the defense and settlement of the claim (as long as the settlement does not include any payment of any amounts by or any admissions of liability, whether civil or criminal, on the part of any of the indemnified parties), as the indemnifying party may reasonably request; and (d) the indemnified parties’ compliance with any settlement or court order made in connection with the claim. The indemnifying party will indemnify the indemnified parties against: (i) all damages, costs, and attorneys’ fees finally awarded against any of them with respect to any claim; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of the claim (other than attorneys’ fees and costs incurred without indemnifying party’s consent after it has accepted defense of such claim); and (iii) all amounts that the indemnifying party agreed to pay to any Third Party in settlement of any claims arising under this Clause and settled by the indemnifying party or with its approval.

Infringement Remedy: If you are enjoined or otherwise prohibited from using any of the Service or a portion thereof based on a Third Party’s Intellectual Property infringement claim covered by our indemnification obligations under this Clause above, then we will, at our sole expense and option, either: (a) obtain for you the right to use the allegedly infringing portions of the Service; (b) modify the allegedly infringing portions of the Service so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the Service with non-infringing items of substantially similar functionality. If we determine that the foregoing remedies are not commercially reasonable, then we will promptly provide a prorated refund to you for any prepaid fees received by us under this Agreement that correspond to the unused portion of the Term. The remedy set out in this Clause is your sole and exclusive remedy for any actual or alleged infringement by us of any Third Party’s Intellectual Property Rights in the event that you are enjoined or otherwise prohibited from using any of the Service or a portion thereof based on a claim covered by our indemnification obligations under this Clause.

You shall be solely responsible with respect to defending any such claims, and for the payment of losses, costs, damages or expenses resulting from the foregoing to both a Third Party and to GuestXM in connection therewith. You shall not, without the prior express written approval of GuestXM, attempt to, or settle, dispose or enter into any proposed settlement or resolution of any claim (whether having been finally adjudicated or otherwise) brought against you, if such settlement or resolution results in any obligation or liability for GuestXM. This clause shall survive termination of this Agreement, however occurred, and termination of your access and/or use of the Site or Service.

17. Governing Law and Dispute Resolution

This Agreement is governed by and construed in accordance with the laws of the Kingdom of Belgium. The parties agree that any dispute or claim arising out of or in connection with this Agreement or its subject-matter, shall be subject to the exclusive jurisdiction of the Ghent Court of Appeal. GuestXM shall retain the right, at its discretion and for its exclusive benefit, to institute proceedings regarding or relating to your use of the Site and Service in the Courts of law of the country in which you reside.

18. Waiver of Jury Trial

You and GuestXM waive their rights (if applicable) to a trial by jury relating to all claims and causes of action (including counterclaims) related to or arising out of this Agreement. This waiver shall also apply to any subsequent amendments or modifications to this Agreement.

19. No Class Actions

All claims between the parties, including parent companies and subsidiaries as mentioned in this agreement, related to this Agreement will be litigated individually and you will not consolidate or seek class treatment for any claim with respect to the Service.

20. Waiver of Compliance of this Agreement

Our failure to enforce, at any time, any of the provisions, conditions or requirements of the Agreement, or the failure to require, at any time, performance by you of any of the provisions of the Agreement, shall in no way waive your obligation to comply with any of the provisions of the Agreement or our ability to enforce each and every such provision as written.

Any and all waivers by either party hereto of any provision, condition or requirement of the Agreement will only be effective against the other Party if it is in writing and signed by an authorized officer of that Party, and any such written waiver will not constitute a waiver of any future obligation to comply with such provision, condition or requirement.

21. Assignment and Delegation

Subject to the obtaining of our prior consent in writing, you may assign or delegate any of the rights or obligations arising under the Agreement. Any purported assignment and delegation shall be ineffective if our prior written consent has not been obtained. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to You.

22. Relationship of the Parties

Subject to the contrary set forth herein, nothing contained in these Terms of Service shall be interpreted or construed to create a partnership, agency, single employer, joint employer or any other type of employment relationship between the parties hereto, or to impose liability attributable to such relationship upon either party. Neither party will have any right, power or authority to enter into any agreement on behalf of, to incur any obligation or liability of, or to otherwise bind the other party.

23. Customer responsibilities

You are solely responsible for the Customer Content that you or Authorized Users upload, publish, display, link to, or otherwise make available via the Service, and you agree that GuestXM is only acting as a passive conduit for the online distribution and publication of the Customer Content and the online display of Mentions. GuestXM will not review, share, distribute, or reference any Customer Content or Mentions except as provided herein, as provided in GuestXM’s Privacy Policy (https://www.guestxm.com/eu-privacy-policy), as may be required by law or without providing prior written or oral consent. Notwithstanding the foregoing, GuestXM retains the authority to remove any Customer Content uploaded that it deems in violation of this Agreement, at its sole discretion.

Acceptable Use. You shall (i) be responsible for your and your Authorized Users’ compliance with these Terms of Service, including the Fair Use Policy, set out below; (ii) be solely responsible for the accuracy, quality, integrity, and legality of Customer Content and of the means by which you acquired or generated Customer Content; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, including keeping your password and user name confidential and not permitting any Third Party to access or use your user name, password, or account for the Service; (iv) be solely responsible and liable for all activity conducted through your account in connection with the Service; (v) promptly notify GuestXM if you become aware of or reasonably suspects any security breach, including any loss, theft, or unauthorized disclosure or use of your (or any Authorized User’s) user name, password, or account; (vi) use the Service only in accordance with applicable laws and government regulations; (vii) comply in all respects with all the terms of service of the Supported Platforms, such as:

• The Facebook Terms of Service published at: https://www.facebook.com/terms.php and  https://www.facebook.com/page_guidelines.php,
• The Instagram Terms of Service published at: https://help.instagram.com/478745558852511,
• The Google Terms of Service published at: https://policies.google.com/terms

Disclosure: GuestXM’s use and transfer to any other app of information received from Google APIs will adhere to Google’s Terms of Service and the Google API Services User Data Policy, including the Limited Use requirements.

• Connecting GuestXM to your Gmail accounts will adhere to Google’s Limited Use Requirements described in the Google API Services: User Data Policy
• or any terms of service issued by any social network you may manage using the Service.

Without limiting the foregoing, you represent and warrant that, in connection with the Supported Platforms, you will not make the Service available to anyone other than to your Authorized Users; (b) use the Service to store or transmit any content, including Customer Content, that may be infringe local or European Union civil or criminal laws, be defamatory, racist, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages in violation of applicable law; (e) upload to, or transmit from, the Service any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component; (f) attempt to reverse engineer, de-compile, hack, disable, interfere with, disassemble, copy, or disrupt the integrity or the performance of the Service, any third-party use of the Service, or any third-party data contained therein (except to the extent such restrictions are prohibited by applicable law); (g) access the Service in order to build a competitive product or service or copy any ideas, features, functions, or graphics of the Service; (h) attempt to gain unauthorized access to the Service or its related systems or networks; or (i) authorize, permit, or encourage any Third Party to do any of the above.

Fair Use Policy. GuestXM may suspend your access to the Service for abusive practices that degrade the performance of the Service for you and/or other customers of GuestXM. GuestXM may also suspend your access to the Service if the activity of any of your Social Profiles is beyond acceptable limits and may degrade the performance of the Service for you and/or other customers of GuestXM. What is “beyond acceptable limits” is solely based on GuestXM’s sole discretion and will be based on the impact of the concerned activity on its technical infrastructure.

You understand that by using GuestXM, you may be exposed to third-party content, information that might be unlawful, offensive, indecent, harmful, inaccurate or otherwise inappropriate. GuestXM does not own, control, or review Third Party content. GuestXM has no obligation to preview, verify, flag, modify, filter, or remove any third-party content, even if requested to do so. However, GuestXM may do so in its sole discretion. Your use of social media integrations is at your sole risk, and GuestXM shall not be liable to you or any Third Party in relation to Third Party content.

24. Survival

Rights and obligations under this Agreement which by their nature are intended to survive termination, including without limitation the indemnification and liability limitations provisions set forth in this Agreement, shall remain in full effect after termination or expiration of the Agreement.

25. Privacy / Data Protection

Please refer to our Privacy Policy (guestxm.com/eu-privacy-policy) for details on our privacy practices through the use of GuestXM. Our Privacy Policy is an integral part of this Agreement. By using GuestXM, you acknowledge that you may collect, view and process information which is considered as being personal information and/or personal information which is defined as being sensitive, under applicable laws. You acknowledge that you shall be solely and exclusively responsible to provide all the necessary controls on your website as well as obtain any consent, which you might be legally obliged to obtain from your customers. By accepting the terms contained within this Agreement, including its annexes, you acknowledge, represent and warrant that you shall comply with all applicable laws, including but not limited to data protection and privacy laws and that you shall indemnify GuestXM Indemnified Parties against any Third-Party claims related to violation of such applicable laws in the use of the Service. Privacy Policy on your website: we shall not be held responsible or liable upon failure to do so from your end. Failure to implement such privacy policy terms on your website might result in the termination of your Account.

DISCLAIMER

THE MATERIALS CONTAINED ON THE GUESTXM SITE AND SERVICES ARE PROVIDED “AS IS”. OTHER THAN FOR THE EXPRESS WARRANTIES CONTAINED IN CLAUSE 10 OF THIS AGREEMENT, GUESTXM HEREBY MAKES NO FURTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, AND HEREBY DISCLAIMS AND NEGATES ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, OR OTHER VIOLATION OF RIGHTS INFRINGEMENT. FURTHER, GUESTXM DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS CONCERNING THE ACCURACY,

LIKELY RESULTS, OR RELIABILITY OF THE USE OF THE MATERIALS ON OUR SITE OR SERVICES, OR OTHERWISE RELATING TO SUCH MATERIALS OR ON ANY THIRD- PARTY SITES OR SERVICES LINKED TO WITHIN THE SITE OR SERVICES OR THAT THE SERVICES WILL BE ERROR-FREE OR PROVIDE CERTAIN RESULTS.

YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTOOD IT, AND AGREE TO BE BOUND BY ITS TERMS.

Contact information:

GuestXM NV Kleindokkaai 17

9000 Gent Belgium

Email: support@guestxm.com