General Terms of Service

1. Subscription and activation of the Service

1.1  The Client may subscribe the service “INONDA” (“Service”) according to the subscription procedures and the instructions arranged by Xdevel and / or its intermediaries or resellers, as the case may be. Price, terms of payment and invoicing, as well as any characteristics of the Service will be described throughout the subscription procedure.

1.2  Upon completion of the relevant subscription procedure, the Client will receive an order confirmation together with the account information to activate and access the Service. .

1.3  To activate the Service the Client must previously visualize, read and accept these General Terms of Service and the Privacy Notice. In any case, the activation of the Service implies the full acknowledgement of these General Terms of Service and the Privacy Notice.

1.4  The Client may subscribe the Service as follows:

• on a monthly basis, starting on the day of the activation of the Service and ending on the day of the next month which comes first the day of activation (for example, starting day April 30, ending day May 29). If such day is lacking in the next month, the Service shall end on the last day of that month. The Client expressly acknowledges that the duration of the Service on a monthly basis will depend every time on the number of days of the starting month and of the ending month;
• on a yearly basis, starting on the day of the activation of the Service and ending on the day of the next year which comes first the day of activation (for example, starting day October 31, ending day October 30);
• on a customized basis (where available), for the period of time set by the Client.

If the Client has to be qualified as consumer (“consumatore”) according to the provisions of the D.Lgs no. 206/2005 (and/or to any other subsequent provision of the Italian Laws applicable to consumers), please note that it will have the right to withdraw (“diritto di recesso”) as permitted by D.Lgs No. 206/2005 (and/or by any other subsequent provision of the Italian Laws applicable to consumers), and according to the subscription procedure.

1.5 At the expiration date the Service shall be renewed as follows:

• in case of a monthly subscription, the Service shall be automatically renewed for another month, and so on, unless the Client withdraws from such subscription through its user account of the Service (or in any other way provided for by Xdevel) no later than three (3) days before the expiration date;
• in case of a yearly subscription, the Service shall be automatically renewed for another year, and so on, unless the Client withdraws from such subscription through its user account of the Service (or in any other way provided for by Xdevel) no later than thirty (30) days before the expiration date;
• in case of a customized subscription (where available), the Service shall be automatically renewed for the same period of time set by the Client, and so on, unless the Client withdraws from such subscription through its user account of the Service (or in any other way provided for by Xdevel) no later than (10) days before the expiration date.

1.6  In case of renewal, the price of the Service has to be paid by the Client before the expiration date of the outstanding subscription.

1.7  To the purpose of evaluating the above-mentioned withdrawal from the subscription, the Client expressly acknowledges that in case of renewal Xdevel shall reserve the right to apply to the new subscription period the price of the Service in force at the time of the renewal.

1.8  In case of withdrawal from the subscription, the Service will remain available till the expiration date of the outstanding subscription and the Client will not be entitled to any refund or credit whatsoever.

1.9  In case of a trial subscription (where available), at the end of the trial period the Service shall be automatically renewed upon payment for thirty (30) days, and so on, unless the Client will notice its withdrawal from the trial subscription through its user account of the Service (or in any other way provided for by Xdevel) no later than three (3) days before the expiration date of the trial period..

2. Structure of the Service

2.1  The Service (an Internet radio broadcasting solution engineered by Xdevel) is set to be utilized from the Client in “cloud” mode according to the instructions for its activation. The Service include a streaming tool (see article 18 hereinafter) and may include further tools as indicated in the order confirmation (“Service Tools”).

Furthermore, the Service is supported by technical equipment, devices, network solution, server, hardware, software and connection services owned and/or managed by Xdevel (“IT Infrastructure”).

2.2  The Service must be utilized by the Client in fully compliance with these General Terms of Service, which constitute the full contractual regulation applicable to the Client during the relations with Xdevel referred to the Service.

2.3  The Service allows the Client to memorize in its personal storage area its contents (see paragraph no. 5.1 hereinafter) till the overall maximum limit of bytes described throughout the subscription procedure.

2.4  The Client expressly acknowledges that the Service does not include any backup tool of the personal data of the Client and of the contents memorized by the Client on the IT Infrastructure through the Service. Therefore, the Client shall have to manage independently any backup needed in order to securely store its data and contents.

3. Property of the Service

3.1  Xdevel is the sole owner of the Service, and has the full rights, patents and intellectual property rights related to the Service, as well as the full rights to utilize any features of third parties, which may constitute part of the Service.

3.2  The subscription of the Service permits the Client to have access only to the features of the Service in order to utilize the Service.

3.3  By subscribing the Service and as far as necessary, Xdevel grants the Client with a non-exclusive and non-transferable software license in order to utilize the Service.

3.4  Because of this license the Client does not acquire any right concerning the Service, the Service Tools and the IT Infrastructure, but only the right to utilize the Service according to the provisions herein contained.

3.5  The price due by the Client for the above-mentioned license is included in that one for the Service. Due to the fact that this license has been granted by Xdevel only to consent the utilization of the Service by the Client, this license shall have the same period of validity of the Service.

4. Service regulations

4.1  To access and utilize the Service the Client must have a computer with a proper Internet connection and a web browser compliant with the technical specifications of the Service. Furthermore, the Client must have a streaming service compliant with the technical specifications of the Service. The efficiency and reliability of the Service are strictly related to the quality and steadiness of such connection.

4.2  Upon activation, the Client shall have at its disposal a personal account, which contains the personal data of the Client. The Client must update such data.

4.3  The Client shall manage independently the Service through access to its personal account, and shall utilize the Service in its full and complete autonomy and under its exclusive responsibility in any phase and for any functionality of the Service.

4.4  It is expressly pointed out that the Service has been realized by Xdevel to be utilized in the radio broadcasting field, any other purpose is excluded. Furthermore, the Service is exclusively directed to individuals or entities involved in the above mentioned field.

4.5  The Service must be utilized by the Client in full respect of any applicable provision of law.

4.6  The Client must dispose, necessarily, of any right, authorization, license, permit or any other legal requirement (if needed) to conduct and perform its activities through the Service.

4.7  The order confirmation referred to in paragraph no. 1.2 hereinabove and the subsequent activation of the Service by the Client do not imply any authorization or consent both preventive and successive from Xdevel, which remain fully unrelated to the activities to be performed by the Client through the utilization of the Service.

4.8  Xdevel limits itself to provide the Client with its Service so that the Client may utilize the same for its activities pursuant to the provisions herein regulated. Hence, the Client is the one and only responsible for the utilization of the Service, and shall be personally liable for the violation of any provisions of law committed while utilizing the Service.

4.9  It is forbidden any unlawful or improper utilization of the Service, as well as any utilization of the Service finalized to achieve, directly or indirectly, unlawful purposes of any kind.

5. Contents regulations

5.1  Subject to access to its personal account, the Client may memorize its contents in its personal storage area in compliance with the requirements of the Service and according to the technical specifications of the contents permitted. It is forbidden to memorize in the personal storage area contents different from those permitted by the requirements of the Service.

5.2  Within the above-mentioned limits the Client shall decide in full and complete autonomy which contents memorize in its personal storage area.

5.3  The Client is the one and only responsible for any contents memorized in its personal storage area, for any loss and damage, full or partial, of such contents, as well as for the use of the Service. Xdevel does not control such contents, their accuracy and availability, and does not monitor the use of the Service.

5.4  The Client shall take all reasonable measures in order to ensure that the utilization of the Service takes place in compliance with these General Terms of Service, also with reference to the listeners or viewers of its contents.

5.5  The Client expressly authorizes Xdevel to carry out the data processing of its personal data and contents as necessary to perform the Service. Such data processing is especially finalized to memorize the contents of the Client on the IT Infrastructure.

5.6  The Client undertakes the obligation to not memorize in its storage area and to not utilize through the Service contents: about which the Client does not have the rights of utilization for the purposes of the Service, and especially the right to memorize, radio broadcast, stream, copy, transmit, distribute or divulge lawfully; which utilization has not been authorized by the owners of the relevant intellectual property or patent rights or by the individuals or entities represented, quoted or mentioned in such contents (by way of example only: artists, producers, promoters, labels, publishers); which violate or embezzle rights of third parties; which are untrue, misleading or tendentious; which are defamatory; which are obscene, pornographic, offensive in general and especially with regard to sex, race, religion or politic opinions; which pursue subversive purposes or instigate violence, crimes, violation of laws or violation of the public order in any manner.

5.7  It is forbidden to utilize the Service in order to memorize on the IT Infrastructure any content, which violate any provision of the Italian laws or the EU laws or the international laws and treaties, and, especially, any intellectual property provision of law.

5.8  Xdevel, at its sole discretion and upon receiving any relevant notice, shall reserve the right to challenge any unlawful or improper conduct of the Client, ask for explanations, and, as the case may be, to notice the competent authorities.

5.9  In this respect, Xdevel shall reserve the right, at any time, to cancel the contents of the Client which violate the provisions contained in these General Terms of Service, or which have been reputed to be unlawful or improper or which violate any provision of the Italian laws or the EU laws or the international laws and treaties. As the case may be and if reputed as appropriate, Xdevel shall also reserve the right to deactivate the personal account of the Client or its access, temporarily or definitively, with or without notice, given the circumstances.

5.10  DUpon termination of the Service for any reason whatsoever, the contents of the Client not yet destroyed or transferred elsewhere, and then again memorized on the IT Infrastructure, will be stored therein for no more than sixty (60) days from the termination of the Service. Elapsed the above-mentioned term, such data will be destroyed by Xdevel and therefore will no more be retrieved in any manner by the Client.

6. Further restrictions and prohibitions

6.1  Except as provided in these General Terms of Service, the subscription of the Service, as well as the license set forth to in article no. 3 hereinabove, does not allow the Client:

• to give access to the Service (and/or any component of the Service) to third parties or to the public in full or in part, in any manner, upon payment or free of charge, in its interest or in the interest of third parties, as well as temporarily or limitedly;
• to sale the Service (and/or any component of the Service) in full or in part, in any manner, upon payment or free of charge, in its interest or in the interest of third parties, as well as temporarily or limitedly;
• any further utilization of the Service (and/or any component of the Service) different from those herein regulated. Especially, it is not permitted any utilization of the Service (and/or any component of the Service) in order to realize, divulge, market or sell – in full or in part, in any manner, upon payment or free of charge, in its interest or in the interest of third parties, as well as temporarily or limitedly – products or services based on or deriving from the Service (and/or any component of the Service), or part thereof;
• to sublicense, lease, rent, or give in any manner to third parties the Service (and/or any component of the Service), upon payment or free of charge, as well as temporarily or limitedly;
• to transfer to third parties, to distribute or to resell the Service (and/or any component of the Service), or to share the same with third parties;
• to dispose of the Service (and/or any component of the Service) towards third parties in any manner and by any way, upon payment or free of charge, in its interest or in the interest of third parties;
• to disclose to third parties the codes (login / password) for the access to the Service;
• to use the Service (and/or any component of the Service) in a manner that infringes, violates or misappropriates the rights of any third party, as well as to encourage or promote illegal activities of any kind;
• to permit or cause spamming and/or other unacceptable or illegal advertising or marketing activities, as well as to cause the propagation of virus or similar, which could produce damages or misappropriation of any kind of systems, as well as of data or personal information;
• to integrate an ad injector service into the Service without the express consent in writing of Xdevel;
• to modify, adapt, alter, change, process, decode, decompile, disassemble, convert or translate the Service (and/or any component of the Service) or part of the same. It is not permitted to make any activity which may cause changes, temporarily or limitedly also, of the Service (and/or any component of the Service), as well as to make any study or analysis finalized to identify the source code of the Service (and/or any component of the Service);
• to access, violate, tamper or utilize the non-public areas of the Service (and/or any component of the Service), as well as of the systems or the security of the Service (and/or any component of the Service) in any manner and to any purpose;
• to try to examine or testing the vulnerability of the Service (and/or any component of the Service) or of any system connected or net, as well as to try to violate the safety measures or the authentication procedures of the Service or of any system connected or net.

7. Malfunctioning or deficiencies. Limited liability

7.1  Xdevel shall be responsible in case of proved non-availability, non-running, or non-updating of the Service (in full, partial or temporary) due to reasons attributable to Xdevel, or in case of non-possibility or difficulty (in full, partial or temporary) to access to the Service due to reasons attributable to Xdevel. Except in case of fraud or willful misconduct pursuant to article no. 1229 of the Italian Civil Code, the above-mentioned responsibility of Xdevel shall in any case be limited to the reimbursement of the portion of the price paid by the Client referred to the actual days of non-utilization of the Service. If the Client has to be qualified as consumer (“consumatore”) according to the provisions of the D.Lgs no. 206/2005 (and/or to any other subsequent provision of the Italian Laws applicable to consumers), the above-mentioned limited liability shall be applicable to the Client till the maximum extent permitted by D.Lgs No. 206/2005 (and/or by any other subsequent provision of the Italian Laws applicable to consumers).

7.2  Xdevel shall not be responsible, in any way, in case of non-availability, non-running, or non-updating of the Service (in full, partial or temporary), or in case of non-possibility or difficulty (in full, partial or temporary) to access the Service due to reasons attributable to the Client or third parties.

7.3 IThe Client expressly acknowledges that shall not be attributable to Xdevel the non-availability, non-running, or non-updating of the Service (in full, partial or temporary), or the non-possibility or difficulty (in full, partial or temporary) to access the Service due to: improper utilization of the Service by the Client; erroneous running of the hardware and software utilized by the Client; conflicts between the Service, the Service Tools and the IT Infrastructure of the Service and the hardware and software of the Client; failures, malfunctions or other reasons attributable to the Client or its personnel or delegated; lack or inadequacy of the Internet connection; failures, malfunctions or other reasons attributable to the streaming service utilized by the Client (only if the Client will not utilize the streaming tool described to in article no. 18 hereinafter); non-possibility to connect to the Service or to the Service Tools or to the IT Infrastructure utilized to supply the Service due to web filters, firewalls or virus detectors; utilization of the Service through an user account with restrictions or non-sufficient privileges; force majeure (by way of example only: loss in voltage, suspension or black-out of power, telematics services, telecommunication services or informatics services); extraordinary or planned maintenance of the Service or the Service Tools or the IT Infrastructure; malfunction of the systems utilized by third parties which supply Xdevel in performing activities required for the running of the Service.

7.4  The provisions contained to in paragraph no. 7.3 hereinabove shall also apply to the non-availability, non-running, or non-updating of the Service (in full, partial or temporary), or the non-possibility or difficulty (in full, partial or temporary) to access the Service attributable to the listeners or viewers of the contents of the Client.

8. Lack of warranties. Indemnification for damages

8.1  Xdevel shall supply the Service to the Client in accordance with and limitedly to the contents of these General Terms of Service. It is excluded any warranty which is not herein expressly contained.

8.2  Especially, Xdevel does not warrant in any manner that the utilization of the Service by the Client will be continuous, safe or without errors, and that the Service will fit specific requirements and purposes of the Client. Furthermore, Xdevel does not warrant that it will be excluded any unlawful access, upload, download, manipulation or copying of the contents memorized by the Client in its personal storage area by any third party.

8.3  Due to the fact that the Service will be utilized in its full and complete autonomy, the Client expressly assumes on itself any responsibility deriving from the utilization of the Service by the same, and is responsible for any damages caused to Xdevel and/or to any third party through the utilization of the Service. Therefore, the Client hereby undertakes to hold Xdevel harmless and indemnified from and against any responsibility, prejudice, loss, damage, claim, cost or expense deriving from and/or subsequent or inherent the utilization of the Service by the Client, which could be raised from any third party against Xdevel for any reason, or in any case to refund Xdevel of any amount paid to any third party in these respect.

8.4  The provisions contained to in paragraph no. 8.3 hereinabove shall also apply to any damage caused to the Service or to the IT Infrastructure by the listeners or viewers of the contents of the Client, or in any case deriving to Xdevel from any action committed by the listeners or viewers of the contents of the Client.

9. Trade-names and trademarks

9.1  “Xdevel” and “INONDA” fully belong to Xdevel, which has the full pertaining rights.

10. Technical support. Tutorials

10.1  According to the characteristics of the Service described in the subscription procedure, Xdevel shall provide the Client with the relevant technical support. This technical support may consist, as the case may be, in a help-desk support accessible from helpdesk.xdevel.com, or in a phone support. Days and hours of the phone support are those described throughout the subscription procedure (and/or showed in the user handbook of the Service).

10.2  Xdevel shall not provide the Client with general technical support, but only with support for hardware, software and connection matters, which are in its direct control as depending on the Service to be supplied to the Client. Even though Xdevel will do its best to help the Client to solve any technical matter, it is excluded any support for hardware, software and connection matters which are under the responsibility of the Client.

10.3  Technical support or tutorials (if provided) have the sole purpose to help the Client while utilizing the Service. Such technical support or tutorials shall not cause any liability or warranty additional to those set in these General Terms of Service.

11. Confidentiality. Client’s personnel. Undue utilizations

11.1  The Client shall maintain strictly secret and confidential the codes (login / password) for the utilization of the Service.

11.2  The Client represents and warrants that its employees, consultants or delegated, shall comply with these General Terms of Service, which also include the prohibition to allow to third parties the utilization of the Service.

11.3  The Client shall immediately prevent any utilization of the Service by the personnel above mentioned or by third parties in a way different from those contained in these General Terms of Service. The Client shall also have to notice immediately Xdevel as to such circumstances.

12. Activities upon termination

12.1  In any case of expiration, cessation or termination due to the breach of these General Terms of Service, the Client shall immediately cease the utilization of the Service. Therefore, Xdevel shall deactivate the access by the Client to the Service, with no need of any previous notice.

12.2  Upon hereinabove, the Client shall have to pay immediately to Xdevel any price still due.

12.3  In case of transfer of a going concern of the Client, the transferee do not succeed in the relations herein regulated. In such case, safe for prior written notice by Xdevel, these General Terms of Service shall immediately cease upon the above-mentioned transfer.

13. Advanced termination

13.1  Xdevel shall have the right to cause the advanced termination of these General Terms of Service, pursuant to article no. 1456 of the Italian Civil Code, in case of non-fulfilment by the Client of one or more of the following obligations: 1.1 (Terms of payment); 4 (Service regulations); 5 (Contents regulations); 6 (Further restrictions and prohibitions); 8.3 (Damages deriving from the utilization of the Service); 8.4 (Other damages deriving from the utilization of the Service); 11 (Confidentiality).

13.2  These General Terms of Service shall terminate by full right upon an explicit declaration of Xdevel to enforce the provision set forth to in paragraph no. 13.1 hereinabove.

14. Amendments

14.1  Xdevel may amend or supplement at any time these General Terms of Service and the Privacy Notice, in order to update the same to new law provisions and to changes in the supply of the Service.

14.2  Xdevel shall previously inform the Client about the changes to be introduced. In case of changes for the worse of these General Terms of Service, except for those due to mandatory law changes, the Client shall have the right not to carry on its subscription. The Client shall notice Xdevel in writing by registered letter to be sent to Xdevel within thirty (30) days from the introduction of the change, at the address set forth to in paragraph no. 15.1 hereinafter. In such case, the Client will be reimbursed with the portion of the price referred to the period of the subscription not utilized.

15. Notices

15.1  Except as differently stated in other provisions of these General Terms of Service or in the subscription procedures and instructions arranged by Xdevel and / or its intermediaries or resellers, any notice shall be sent by the Client to Xdevel (i) by correspondence at the following address: Xdevel di Gugliotta Maurizio, Via Sparagonà 1, 98208 Santa Teresa di Riva (ME), Italy, or (ii) by email at the following address: info@xdevel.com.

15.2  Any notice to the Client shall be fully valid and effective if sent by Xdevel at the address of the Client indicated throughout the subscription procedure. At the above-mentioned address the Client elects its domicile to any need of these General Terms of Service, as well as for the service of legal proceedings. Xdevel, at its sole discretion, may also utilize the email account and/or the fax number anyway communicated by the Client in order to send notices pursuant to these General Terms of Service.

16. Applicable law. Jurisdiction

16.1  These General Terms of Service are governed by Italian Law.

16.2  The Courts of Messina (Italy) shall have exclusive jurisdiction with regard to any controversy. If the Client has to be qualified as consumer (“consumatore”) according to the provisions of the D.Lgs no. 206/2005 (and/or to any other subsequent provision of the Italian Laws applicable to consumers), with regard to any controversy shall have exclusive jurisdiction the courts legally in charge according to the provisions of law applicable to consumers.

17. Privacy

17.1   The Client, as far as applicable and may concern, shall comply with the privacy provisions set forth to in D.Lgs. no. 196, June 30, 2003 (and/or to any other subsequent provision of the Italian Laws applicable to data protection).

18. Streaming tool

18.1  The Service also includes “Stream Solution”, the streaming service engineered and supplied by Xdevel (“Stream Solution”). The characteristics of this streaming service are described throughout the subscription procedure of the Service. Nevertheless, the Client is free to utilize any other streaming service instead of Stream Solution, without any restriction or limitation to the mode of operation of the Service.

18.2  Stream Solution consists in the supply to the Client by Xdevel of physical / logical resources, on a non-exclusive basis and with technical specifications not modifiable by the Client, which enable the streaming live only. Please note that Stream Solution does not allow the Client to any other utilization different from the utilization to operate the Service.

18.3  Together with the order confirmation of the Service, the Client will receive the account information for the utilization of Stream Solution, which must be maintained by the Client strictly secret and confidential. If the Client decides to utilize Stream Solution, these General Terms of Service will entirely apply also to the supply of the streaming service thereof, as the latter constitute a part of the Service (see paragraph 2.1 hereinabove).

18.4  In case of utilization of Stream Solution, the Client must pay specific attention to article no. 4 (Service regulations) and to article no. 5 (Contents regulations) of these General Terms of Service. In this respect, it is expressly reaffirmed and pointed out that Xdevel limits itself to provide the Client with its streaming service so that the Client may utilize the Service. Hence, the Client is the one and only responsible for the utilization of Stream Solution, and shall be personally liable for the violation of any provisions of law committed while utilizing the service thereof.

18.5  In addition to any provision contained in these General Terms of Service, the Client expressly acknowledges that Xdevel guarantees the supply of Stream Solution with an absence of interruptions level not lower than 99.00% / 365 days.

18.6  Moreover, the Client expressly authorizes Xdevel to carry out the data processing of its personal data and contents as far as necessary to supply Stream Solution..

According to article no. 1341 of the Italian Civil Code, the Client precisely approves the following provisions contained in the above-mentioned General Terms of Service: 1.5 (Renewal of the Service); 2.4 (Lacking of backup tool); 4.8 (Responsibility for the use of the Service); 5.3 (Responsibility for the memorization and the access to the contents); 5.9 (Improper utilization of the Service – Consequences); 7 (Malfunctioning or deficiencies. Limited liability); 8 (Lack of warranties. Indemnification for damages); 12.1 (Expiration of the Service – Deactivation of the Service); 13 (Advance termination); 16.2 (Jurisdiction); 18.4 (Responsibility for the use of the streaming tool).