General Terms of Service – Mediasender

1. Subject matter

1.1 These General Terms of Service (hereinafter also referred to as the “General Terms”) govern the terms and conditions under which Xdevel S.r.l. (Tax Code and VAT No. 03578880837), having its registered office at Via Francavilla No. 8F, 98039 Taormina (ME), Italy, Certified Email (PEC): xdevelsrl@pec.it (hereinafter referred to as the “Provider” or “Xdevel”), owner of the EarOne platform and trademark, provides the customer (the “Customer”) with the EarOne service known as “Mediasender” (hereinafter the “Service”) for the distribution of customized digital cards containing audio files, artwork, images, documents, information and track credits (hereinafter the “Content”), according to the technical features and commercial conditions of the subscription plan selected by the Customer and summarized in the Service activation confirmation emails (the “Activation Communications”).
These General Terms constitute the entire contractual agreement governing the relationship between the Customer and Xdevel with respect to the Service.

1.2 The Service is provided by Xdevel through electronic communication networks, telecommunication networks and internet websites, as described online, in the factual and legal condition existing on the date of the activation request, as published on www.mediasender.it, together with the technical specifications described therein.

2. Conclusion of the agreement – Activation, nature and duration of the Service

2.1 The agreement between Xdevel and the Customer shall be deemed concluded upon Xdevel’s receipt of the Service activation request duly completed and submitted by the Customer together with payment of the applicable Service fee or, alternatively, upon the Customer’s acceptance of a specific quotation issued by Xdevel for the provision of the Service, unless otherwise provided in these General Terms.

Xdevel shall provide the Service exclusively in accordance with these General Terms, excluding any warranty not expressly set forth herein.

2.2 After accessing the Mediasender website at https://store.earone.it/it/mediasender, the Customer may purchase the Service by following the subscription procedure and instructions provided online, selecting the desired Service plan, completing the electronic order form and submitting it to Xdevel, including the payment details of the credit card to be used.
During this procedure, and as a condition for activation of the Service, the Customer shall review and expressly accept these General Terms, the Rules for the Use of the Service, and the Privacy Policy, by selecting the relevant acceptance boxes.
In any event, the Customer expressly acknowledges that submitting the order, accepting a quotation or paying the Service fee shall constitute full acceptance of these General Terms, the Rules for the Use of the Service and the Privacy Policy.

2.3 Upon receipt of the Service activation request, the Provider shall send the Customer, to the email address indicated during registration, the Activation Communications together with these General Terms, including a summary of:

• the selected subscription plan;
• the applicable Service fee;
• the payment terms;
• the duration and expiration date of the Service; and
• the Account credentials required to access the Service.

Where the agreement is concluded through acceptance of a quotation, the Provider shall send the Activation Communications together with the Customer’s Account credentials and the relevant invoice.

2.4 Upon subscribing to the Service, the Customer, if not already registered, shall create a personal account (the “Account”) by following the procedure available at: https://store.earone.it/it/mediasender

The Customer undertakes to provide complete, accurate, truthful and up-to-date information.

Should the Provider reasonably believe that the information supplied by the Customer is inaccurate, incomplete or misleading, it may adopt the measures provided for under Article 11.1.

The Customer expressly acknowledges that the Service has been designed by Xdevel to be used independently by the Customer through:

• uploading and storing Content selected by the Customer;
• sending such Content, through the Customer’s Account, to recipients independently selected by the Customer,

all in accordance with the Rules for the Use of the Service.

2.5 While creating a digital card, the Customer may choose to make the Content publicly available on the EarOne website on the publication date selected by the Customer.

In such event, the Customer expressly acknowledges and agrees that all Content included within the digital card may be published on the EarOne website and/or on any websites or platforms associated with EarOne, subject to EarOne’s approval.

2.6 Pursuant to Article 2.5 and subject to the warranties provided under Article 5, the Customer authorizes Xdevel and/or its successors or assigns, free of charge and without any additional compensation, to publish the Content on the EarOne website and/or on any affiliated websites or platforms.

With specific reference to audio recordings, the Customer acknowledges and accepts that the track will be made available exclusively in the form of a preview with a maximum duration of 45 seconds.

2.7 If, during the creation of the digital card, the Customer elects not to make the Content public, Xdevel undertakes to respect such choice and not to disclose the Content beyond the recipients designated by the Customer.

3. Fees – Payment terms

3.1 The consideration payable by the Customer for the Service shall be that indicated in the Activation Communications.

3.2 The Customer acknowledges and agrees that payment shall be made to Xdevel by bank transfer or PayPal using the payment details communicated by Xdevel.
The Customer may, at any time, associate additional payment methods and update payment information through the Account management panel.
Unless otherwise agreed, upon receipt of payment Xdevel shall issue the relevant invoice, which may also be sent electronically via email, including certified email where applicable.

3.3 Should the Customer fail to pay the amounts due by the agreed deadlines, Xdevel shall be entitled to suspend the Service pursuant to Article 1460 of the Italian Civil Code.
Without the need for formal notice, the Customer shall remain liable for payment of all overdue amounts together with statutory default interest calculated pursuant to Italian Legislative Decree No. 231 of 9 October 2002, without prejudice to Xdevel’s right to recover any additional damages.

4. Duration, renewals, termination

4.1 The duration of the Service, according to the subscription plan selected by the Customer, and its expiration date shall be those specified in the Activation Communications.

4.2 Unless otherwise stated, the Service shall automatically renew upon expiration for a period equal to the original subscription term, by automatic charge to the latest credit card provided by the Customer, according to the pricing in force at the renewal date.

4.3 Where automatic renewal applies, the Customer hereby authorizes Xdevel to periodically charge the applicable Service fee according to the renewal schedule of the selected subscription plan.

The Customer also authorizes Xdevel to retain the payment card details associated with the Account for future renewals, unless modified by the Customer in accordance with Article 3.2.

4.4 Should the Customer wish not to renew the subscription, notice of termination must be sent to accounting@xdevel.com at least seven (7) days before the renewal date, or automatic renewal must be disabled through the Account management panel.
If termination is not communicated within the prescribed period, the Service shall automatically renew for an additional equivalent term and any renewal fee paid shall not be refundable.

4.5 Renewal of the Service is subject to the Customer being fully up to date with all previous payments.
If, for any reason, payment cannot be processed using the primary payment method, the Customer authorizes Xdevel to use any alternative payment method associated with the Account.
If payment cannot be collected through any available payment method, access to the Service shall be suspended until all outstanding amounts have been paid.

5. Use of the Service. Customer warranties, obligations and liability

5.1 The Service is provided to the Customer on a cloud-based basis and is accessible through the Mediasender website at http://www.mediasender.it.

5.2 The Customer undertakes to use the Service with the utmost care and diligence, in compliance with these General Terms and with the Rules for the Use of the Service. The Customer further undertakes not to use the Service for any unlawful purpose or in violation of any applicable national, European Union or international laws or regulations.

5.3 The Customer acknowledges that it is strictly prohibited to use the Service for the transmission of pornographic, child pornography, obscene or sexually explicit material, material that is offensive or contrary to public morals or public policy, material infringing the rights of third parties, copyrighted material used without authorization, illegally held material or any other content intended for unlawful purposes.

5.4 The Customer represents and warrants that:

• it is the sole, full and lawful owner of the Content and/or of all rights relating to the Content, including by virtue of contractual arrangements with third parties, or is otherwise fully authorized to use, distribute and exploit such Content, having obtained all necessary authorizations, licenses, assignments and releases from the relevant rights holders;
• the Content does not contain any material contrary to public morals, public policy or applicable law, nor any defamatory material or material infringing the rights of third parties, nor any content that may give rise to legal claims of any nature, including, by way of example, plagiarism, counterfeiting, unfair competition or civil liability;
• it is solely and exclusively responsible for all activities carried out through the Service, including where the Service has been activated on behalf of third parties with their authorization, and is therefore solely responsible for all Content uploaded, distributed or otherwise transmitted through the Service;
• it uses the Service entirely at its own responsibility with respect to the Content.

5.5 The Customer undertakes to:

• keep strictly confidential and not disclose to third parties the credentials associated with its Account (username and password), being solely responsible for their safekeeping, and to promptly notify Xdevel in writing of any unauthorized use, theft, loss or compromise of such credentials;
• refrain from creating situations that may jeopardize the stability, security or technical operation of the Service through improper programming activities or inappropriate use capable of affecting the quality of the Service provided to the Customer, other customers, Xdevel or third parties;
• refrain from uploading or allowing third parties to upload Content that: (i) o contains malware, viruses or other harmful software; (ii) o infringes or may infringe privacy rights, copyright or intellectual property rights; (iii) o is defamatory, pornographic, blasphemous, offensive or incites racial hatred; (iv) o may damage the business, reputation or image of EarOne and/or Xdevel; (v) o contains unauthorized advertising, promotional material or unsolicited spam;
• promptly perform, upon Xdevel’s request, all acts, formalities, declarations and provide any documentation deemed necessary or appropriate for the purposes of these General Terms.

5.6 Xdevel reserves the right, at its sole discretion and without prior notice, to suspend or terminate the Customer’s access to the Service in the event of any breach of the obligations set forth in Article 5.5 or if any of the warranties under Article 5.4 proves to be untrue or no longer valid. The Customer acknowledges that no refund, compensation or damages shall be due as a consequence of such suspension.
The Customer shall remain solely responsible for the above violations and undertakes to indemnify and hold Xdevel harmless from any resulting damages or claims.

5.7 The Customer expressly acknowledges that Xdevel shall not be liable, whether directly or indirectly, for any civil, criminal or administrative offence committed by the Customer through the use of the Service or in connection with the Content.

5.8 Xdevel does not provide any backup, storage or preservation service for the Customer’s Content.
Accordingly, the Customer is solely responsible for adopting appropriate backup and data protection measures and acknowledges that Xdevel shall not be liable for any loss, destruction or corruption, whether partial or total, of such Content.

5.9 In order to ensure the security and proper functioning of the Service, the email address used by the Customer must be correctly configured and authenticated.
The Customer represents and warrants that the email domain used for the Service is properly configured using:
(i) DMARC (Domain-based Message Authentication, Reporting & Conformance); (ii) DKIM (-DomainKeys Identified Mail); (iii) SPF (Sender Policy Framework).

Should the Customer’s email address fail to comply with these security requirements, Xdevel reserves the right, in order to preserve the security standards of the Service, to replace the sender’s email address displayed to recipients of the digital cards with the address musica@mediasender.it

6. Third-Party claims. Indemnification

6.1 Xdevel shall have the right to suspend or terminate, without prior notice, the Customer’s access to the Service and the performance of the Services where third parties assert claims, objections or demands, whether judicial or extrajudicial, relating to the Content or contest the Customer’s rights thereto, without prejudice to Xdevel’s right to full compensation for any damages suffered.

6.2 The Customer undertakes to indemnify and hold harmless Xdevel against any and all claims, proceedings, demands, actions, liabilities, costs and expenses, whether judicial or extrajudicial, brought by third parties in connection with the Content, the inaccuracy of the warranties provided by the Customer, any breach of the obligations set forth in Article 5; any breach of these General Terms or the Rules for the Use of the Service; • any unauthorized or improper use of the Service by the Customer or by persons authorized by the Customer. 

Accordingly, the Customer shall indemnify, defend and hold harmless Xdevel from all damages, settlements, judgments, legal fees and any other costs incurred as a consequence of such claims.

7. Limitation of the provider’s liability

7.1 The Customer expressly acknowledges that Xdevel shall not be liable for any unavailability, interruption, malfunction or failure to update the Service, whether total or partial, temporary or permanent, or for any inability or difficulty in accessing or using the Service arising from: (i) improper use of the Service by the Customer; (ii) • malfunction of the Customer’s hardware or software; (iii) • incompatibility between the Service infrastructure and the Customer’s hardware or software; (iv) • faults attributable to the Customer, its personnel or contractors; (v) • absence or inadequacy of the Customer’s Internet connection; (vi) • inability to connect to the servers used for the Service due to firewalls, antivirus software or network filters; (vii) • insufficient privileges associated with the Customer’s user account; (viii) • force majeure events, including power failures or interruptions of telecommunication services; (ix)• acts or omissions of third parties, including interruptions of telecommunications providers or scheduled or extraordinary maintenance affecting the servers supporting www.mediasender.it; (x) • failures affecting third-party service providers engaged by Xdevel for activities necessary to operate the Service, including the delivery of digital cards.

7.2 Where the unavailability or malfunction of the Service is demonstrably attributable to Xdevel, the Customer shall only be entitled to reimbursement of the portion of the fee corresponding to the actual period during which the Service could not be used, except in cases of wilful misconduct or gross negligence pursuant to Article 1229 of the Italian Civil Code.

7.3 Xdevel shall not be liable for: (i) • acts or omissions by the Customer in breach of these General Terms; (ii) • failures resulting from defects in the Customer’s equipment; (iii) • improper use of the Service or incorrect access procedures adopted by the Customer. 

Accordingly, no refund shall be due where the Service is unavailable or malfunctioning due to causes attributable to the Customer or third parties.
Under no circumstances shall Xdevel be liable for loss of profits, loss of business opportunities or any indirect or consequential damages.

The Customer further acknowledges that the Service may be suspended, cancelled or transferred upon request of the competent authorities.

8. Additional provisions regarding the Service

8.1 Upon subscription to the Service, Xdevel grants the Customer a non-exclusive and non-transferable licence to use the software components comprising the infrastructure accessible through www.mediasender.it, solely for the purpose of using the Service.

8.2 Xdevel is the exclusive owner of the Service and of all software components forming part thereof, including all related intellectual property rights, industrial property rights and rights relating to third-party software incorporated into the infrastructure.
This licence grants the Customer only the right to access and use the Service in accordance with these General Terms and does not transfer any ownership rights.

8.3 The licence remains valid only for the duration of the subscription plan purchased by the Customer and solely for the purpose of using the Service.

8.4 In particular, the Customer shall not:

• sublicense, lease, rent or lend the infrastructure to third parties;
• transfer, distribute, resell or otherwise make the infrastructure available to third parties;
• disclose login credentials to third parties;
• create derivative products or utilities based upon the infrastructure;
• modify, adapt, reverse engineer, decompile, disassemble, decode, translate or otherwise attempt to discover the source code of the infrastructure;
• access or interfere with non-public areas of the Service or Xdevel’s systems;
• attempt to test or circumvent the security measures protecting the Service or any connected systems or networks.

8.5 Xdevel reserves the right to temporarily suspend or permanently discontinue the Service at any time where required by technical or legal reasons beyond its reasonable control.
Where reasonably possible, Xdevel shall provide prior notice of such suspension or discontinuation.
In such event, Xdevel shall reimburse the Customer for the unused portion of the subscription fee corresponding to the remaining subscription period, excluding any further compensation or damages.

9. Intellectual and industrial property rights

9.1 Xdevel and/or its licensors shall remain the sole and exclusive owners of all intellectual property rights, industrial property rights and economic exploitation rights relating to the Service, including, without limitation, all inventions, software, source code, object code, documentation, texts, studies, developments and any other materials conceived, created or developed for the purpose of providing the Service.
The trademarks “EarOne” and “Mediasender” are the exclusive property of Xdevel.

9.2 The Customer is granted only a limited, personal, non-exclusive and non-transferable right to use the Service. Accordingly, the Customer shall not permit third parties or the general public to access or use the Service, in whole or in part, whether free of charge or for consideration, whether for its own benefit or that of third parties, even on a temporary or limited basis.

9.3 The Customer shall not market, distribute, resell or otherwise commercially exploit the Service, in whole or in part, in any form whatsoever, whether free of charge or for consideration, whether for its own benefit or for the benefit of third parties, including on a temporary or limited basis.

9.4 Any use of the Service other than as expressly permitted under these General Terms is strictly prohibited.
In particular, the Customer shall not use the Service, in whole or in part, to develop, distribute, market or commercialize any products or services derived from, based upon or incorporating the Service, whether free of charge or for consideration.

10. Tutorials and technical support

Any tutorials, user guides, technical documentation, support services or help desk assistance made available by Xdevel are provided solely to facilitate the Customer’s use of the Service.
Such materials and services shall not give rise to any additional contractual obligations, warranties or liabilities beyond those expressly set forth in these General Terms.

11. Obligations concerning information provided and confidentiality

11.1 The Customer acknowledges and accepts that registration for the Service requires the submission of personal and company information and warrants that all information provided for the conclusion and performance of this Agreement is accurate, complete and up to date.
Should the Customer fail, upon Xdevel’s request, to provide satisfactory evidence of the accuracy of such information or fail to communicate the correct information, Xdevel reserves the right to: (i) refuse the registration request; (ii) suspend the Service; (iii) • terminate this agreement.

11.2 The Customer represents and warrants that all of its employees, consultants, collaborators, agents and any other persons authorized to use the Service on its behalf shall fully comply with these General Terms, including the prohibition against allowing unauthorized third parties to use the Service.
The Customer shall remain fully liable for any breach committed by such persons.

11.3 Should the Customer become aware of any use of the Service by the persons referred to in Article 11.2 that is inconsistent with these General Terms, the Customer shall immediately prevent such unauthorized use and promptly notify Xdevel thereof.

12. Termination of the Service

12.1 Upon cancellation, expiration, termination or discontinuation of the Service for any reason whatsoever, including the circumstances set forth in Article 4.5, or upon termination of this Agreement, the Customer shall immediately cease using the Service.
Access to the Service shall, in any event, be disabled by Xdevel automatically upon expiration of the applicable subscription period without the need for further notice.

12.2 In all cases referred to in Article 12.1, the Customer shall immediately pay any outstanding amounts due to Xdevel.

12.3 Upon termination of the Service, for whatever reason, any data, Content and audio files uploaded by the Customer and not previously deleted or transferred elsewhere shall remain stored on Xdevel’s servers for a maximum period of ninety (90) days from the date of termination.
After the expiry of such period, all remaining data shall be permanently deleted and shall no longer be recoverable by the Customer.

13. Express termination clause

13.1 Xdevel shall be entitled to terminate these General Terms pursuant to Article 1456 of the Italian Civil Code upon written notice to the Customer in the event of:

• the Customer’s breach of any of the obligations set forth in the following Articles: Article 3 (Fees – Payment Terms);  Article 4 (Duration – Renewals – Termination); Article 5 (Use of the Service – Customer Warranties, Obligations and Liability); Article 6 (Third-Party Claims – Indemnification); Article 8 (Additional Provisions Regarding the Service); Article 9 (Intellectual and Industrial Property Rights); Article 11 (Obligations Concerning Information Provided and Confidentiality);
• force majeure events making performance impossible;
• the Customer becoming insolvent or being subject to bankruptcy proceedings, liquidation or any other insolvency or enforcement procedure.

13.2 In all the above cases, Xdevel’s right to receive payment of all fees accrued up to the effective termination date, as well as its right to seek compensation for any damages suffered, shall remain unaffected.

14. Reference Use of the customer’s name and trademark

14.1By accepting these General Terms and activating the Service, the Customer grants Xdevel a non-exclusive, royalty-free authorization, valid for the entire duration of the contractual relationship, to use the Customer’s corporate name, trade name, logo and trademarks (collectively, the “Distinctive Signs”) solely for the purpose of:

• displaying the Customer’s Distinctive Signs on Xdevel’s and/or the Service’s websites;
• reproducing the Distinctive Signs in brochures, commercial presentations, press releases, marketing materials and printed or digital documentation relating to Xdevel’s services;
• identifying the Customer as a user of the Service within Xdevel’s institutional and marketing communications, including through its official social media channels.

14.2 Xdevel shall have the sole discretion to determine whether or not to use the Customer’s Distinctive Signs. Nothing contained herein shall create any obligation upon Xdevel to publish, display or continuously reference such Distinctive Signs.

14.3 The Customer represents and warrants that it owns, or has obtained all rights and authorizations necessary to grant, the authorization provided for in this Article, and agrees to indemnify and hold Xdevel harmless against any claim, demand or action brought by third parties arising out of the use of the Distinctive Signs in accordance with this Article.

14.4 The authorization granted under this Article shall automatically terminate upon termination of the contractual relationship for any reason whatsoever.
Within thirty (30) days following such termination, Xdevel shall remove the Customer’s Distinctive Signs from its websites and digital platforms.
However, Xdevel shall not be required to remove Distinctive Signs already included in printed materials, distributed documentation or archived publications that cannot reasonably be modified.

14.5 The Customer may revoke the authorization granted under this Article at any time by providing written notice to Xdevel in accordance with Article 16.

15. Amendments

15.1 Xdevel reserves the right to amend these General Terms, including the Rules for the Use of the Service and the Privacy Policy, at any time in order to:

• comply with applicable laws or regulations;
• reflect changes in the way the Service is provided;
• comply with requirements imposed by suppliers, partners or third parties;
• address operational, technical or organizational needs relating to the management of the Service.

15.2 In the event of amendments, Xdevel shall provide the Customer with at least thirty (30) days’ prior notice.
Where the amendments materially worsen the Customer’s contractual position and are not required by mandatory provisions of law, the Customer may withdraw from the Agreement by sending written notice via registered mail or certified email (PEC) within thirty (30) days from receipt of the notice of amendment.

15.3 These General Terms supersede and replace any prior oral or written agreements entered into between the Customer and Xdevel concerning the Mediasender Service.

16. Notices

16.1 Any notice required under these General Terms shall be sent by the Customer to:

Xdevel S.r.l.
Via Francavilla No. 8F
98039 Taormina (ME) – Italy
Certified Email (PEC):
xdevelsrl@pec.it

16.2 Any communication addressed by Xdevel to the Customer shall be deemed valid if sent to the contact details provided by the Customer during the ordering process and confirmed in the Activation Communications.
Such contact details shall constitute the Customer’s elected address for all contractual communications, including judicial notifications where permitted by applicable law.
Xdevel may also communicate with the Customer through ordinary email, certified email (PEC) or any other contact details supplied by the Customer.

16.3 Each Party shall promptly notify the other of any change to its registered office or correspondence address.
The Customer shall communicate any such change by registered mail or certified email. Xdevel may also receive such communications via email at:
accounting@xdevel.com
Changes not duly communicated to Xdevel shall not be enforceable against Xdevel.

17. Governing law and jurisdiction

17.1 These General Terms shall be governed by and construed in accordance with the laws of the Republic of Italy.
For any matter not expressly regulated herein, reference shall be made to the applicable provisions of Italian law.

17.2 Any dispute arising out of or relating to the interpretation, validity, performance or termination of these General Terms, including disputes involving third parties, shall fall within the exclusive jurisdiction of the Court of Catania (Italy).