This document was last updated on 2017-03-15.
PLEASE READ THIS LEGAL AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING THE SOFTWARE AS A SERVICE (“SERVICE”) OFFERED BY TALAIA NETWORKS SL (“THE COMPANY”). BY CHECKING THE TERMS AND CONDITIONS BOX IN THE COMPANY’S ACCOUNT SIGN-UP OR OTHERWISE EXPRESSING YOUR AGREEMENT TO THE TERMS AND CONDITIONS HEREIN, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND ACCEPTED THE TERMS AND CONDITIONS DESCRIBED BELOW AND THAT YOU AGREE TO BE BOUND TO THEM. IF YOU DO NOT AGREE TO THESE TERMS, YOU WILL NOT BE GRANTED THE RIGHT TO USE THE SERVICES OFFERED BY THE COMPANY IN ANY WAY.
THIS AGREEMENT GOVERNS THE USE OF THE SERVICE DESCRIBED HEREIN. THE USE OF THE SERVICE WILL BE SUBJECT TO THE ORDER DOCUMENT(S).
YOU WILL BE REQUIRED TO INDICATE YOUR AGREEMENT TO THESE TERMS AND CONDITIONS IN ORDER TO COMPLETE THE ACCESSING PROCESS FOR THE SERVICE. BY ACKNOWLEDGING AGREEMENT TO THE TERMS OF AN ELECTRONIC COPY OF THIS AGREEMENT, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT, INCLUDING ALL TERMS INCORPORATED BY REFERENCE. THIS AGREEMENT IS ENFORCEABLE AGAINST ANY PERSON OR ENTITY THAT USES THE SERVICE AND ANY PERSON OR ENTITY THAT USES THE SOFTWARE ON ANOTHER PERSON'S OR ENTITY'S BEHALF. YOU AGREE THAT THIS AGREEMENT IS EQUIVALENT TO ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU AGREE TO THESE TERMS ON BEHALF OF A COMPANY OR A GOVERNMENT AGENCY, DEPARTMENT OR INSTRUMENTALITY, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND THAT COMPANY TO THIS AGREEMENT, AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE COMPANY. IN THAT EVENT, "YOU" AND "YOUR" REFER HEREIN TO THAT COMPANY.
THIS SOFTWARE IS BEING LICENSED AS A SERVICE TO YOU. THE COMPANY PERMITS YOU TO USE THE FUNCTIONALITY OR FEATURES OF THE SERVICE ONLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
The following terms and conditions, and any and all other policies referenced herein or otherwise provided to You by the Company (collectively the “Policies”), constitute the binding legal agreement (this “Agreement”) between The Company and “You”, the user of the Service.
You and The Company may also be individually referred to herein as a “Party” and collectively as “Parties”. You agree to use the Service and any additional software packages and/or services offered by The Company in the future only in accordance to this Agreement.
The Company reserves the right to change, modify, suspend or discontinue the Service and the terms and conditions contained in this Agreement at any time, without notice or liability, in its sole discretion. The latest version of this agreement will be posted on The Company’s website. Use of the Service by You constitutes Your acceptance of the modified terms and conditions. You should regularly check The Company’s website for updates and/or changes.
(a) "Affiliate" means, with respect to any person or entity, any other person or entity that directly or indirectly Controls or is Controlled by such person or entity, from time to time, but only for so long as such Control exists. "Control" and its grammatical variants mean (i) a general partnership interest in a partnership, or (ii) the beneficial ownership of a majority of the outstanding equity entitled to vote for directors.
(b) "Consumer" or "Client" or "You" means a person who subscribes to the Service, or who registers an account through the Service's website in order to request a free trial or access an online demo. "Your" means that which belongs to You, or has been provided to You for use by You pursuant to this agreement.
(c) "Upgrades" means any updates, upgrades, releases, fixes, enhancements or modifications to the Software that provides the Service as provided under this Agreement.
(d) "Extensions" mean any separate downloadable suite, add-on, example module, command, function, or application which extends the Service.
(e) "Internal Business Purpose" means the use of the Service, as applicable, only for Your internal business use with Your systems, networks, devices and data. Such use of the Service does not include use of Your systems or networks as part of services You provide for a third party's benefit.
(f) "Order Document" means the subscription order(s) or any equivalent ordering document(s) or order confirmation(s) that detail(s) the components, solutions, and quantities of Your subscription of the Service sent by The Company and accepted by You.
(g) "Service" means the functionality provided by the Software.
(h) "Software" means the software, its modules, and all the related names it might get in the future, which are used by The Company to provide the Service.
(i) “The Company" refers to TALAIA NETWORKS SL, a Sociedad Limitada duly incorporated under the laws of Spain with registered office at Carrer de Pau Claris, 94, 3º 2ª, 08010 Barcelona, registered in the Registro Mercantil of Barcelona, Tomo 42927 (Folio 0199), Hoja 441966, with CIF B66091976.
(j) "in the Cloud" means located on a server provisioned by The Company to provide the Service; You have no ownership of, or other claim against, this server or its contents.
(h) “Support" means the troubleshooting and resolution of problems.
2. USE OF THE COMPANY’S SITE; REGISTRATION
As a condition for the use of the Service, You may be required to register in the Service’s website, select a password and enter a Client's email address ("Company Client ID"). You shall provide accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of Your Client's account. You may not (i) select or use as a Company Client ID a name of another person with the intent to impersonate that person; (ii) use as a Company Client ID a name subject to any rights of a person other than You without appropriate authorization. The Company reserves the right to refuse registration of, or cancel a Company Client ID in its sole discretion. You shall be responsible for maintaining the confidentiality of Client's Company password and that You shall be solely and fully responsible for all activities that occur under Your username and password.
The Company shall not be responsible for any loss, claim or other liability that may arise from the unauthorized use of any password. You agree to immediately notify The Company of any unauthorized use of Your password or username or any other breach of security. If a password is lost or stolen, it is Your responsibility to change the password, and immediately notify The Company, so that Your account remains both secure and functional.
Once You have completed the signup process on The Company’s website and provided any information required by the Company, three options will be available to You regarding the Service:
(a) To access a demonstration on the use and applicability of the services with hypothetical data.
(b) To request a free trial for a limited period of time.
(c) To subscribe to the service on an ongoing basis, typically monthly or yearly.
3. THE SERVICE
Subject to Your compliance with the terms and conditions of this Agreement, the Service will be provided using an installation of The Company’s software in the cloud, and will be licensed on a subscription basis. You will access the Service using an up-to-date, standards-compliant web browser. The Company commits to support the latest versions of Google Chrome and Mozilla Firefox, although other browsers may be functional to access the Service. Data will be collected, analyzed and stored in the Cloud on The Company’s servers.
The Company grants You the following non-exclusive, non-transferable, non-sublicensable, revocable, limited license during the Term (or such other period of time provided in Your Order Document) to use solely for Your Internal Business Purpose to analyze and visualize all data collected in Your network.
Additional software components may be distributed in connection with the Service. If separate license terms accompany those components, such separate license terms apply to Your use of such components.
You will be responsible of configuring Your own network infrastructure to feed data to the Service. The Company commits to help You in in good faith, but does not guarantee the complete and successful configuration of Your particular networking hardware components. In case You require a free trial period, as described in Clause 6, You are expected to complete the configuration of Your networking hardware in that period.
For the purpose of offering integration with Your internal systems, the Service includes an application programming interface (API) based on industry-standard protocols that can be used to remotely fetch the data that the Service collects and displays.
3 BIS. MULTITENANCY
Optionally, at extra cost and only if Your Order Document specifies such, Your "Internal Business Purpose" will be redefined so as to additionally include and permit direct access to the Service by Your Clients, up to a limit set forth in Your Order Document. In that sense, the Service will also be provided to Your Clients. This capability is also referred to as “multitenancy”.
The Company shall monitor the Service and provide Support to only You. If an error or malfunction occurs, or the Service becomes unavailable to You or any of Your Clients, it is understood that You will notify The Company (electronically or otherwise).
You will become the only valid interlocutor between Your Clients and The Company, and all faults, queries, notices, requests or other communications in relation to the Service and the Software will be addressed to You.
Under no circumstances shall Your Clients be entitled to contact The Company directly, and You agree that You will not provide Your Clients with contact information for The Company or otherwise encourage Your Clients to contact The Company. Furthermore, You understand and agree that communications made directly to The Company by Your Clients will not be replied to.
4. SERVICE AND SUBSCRIPTION
Your plan is designed and aimed for a specific number of users and routers as well as for a certain bandwidth specified in Your Order Document. Each user will have unique credentials to access the Service, and these will be non-transferrable, for Your use only and exclusively for Your Internal Business Purpose.
5. UNACCEPTABLE USE OF THE SERVICE
Each rate plan is designed and set for a specific number of users and routers as well as for a certain bandwidth. Subscription of a rate plan which does not match (is inferior to) the number of users and routers that finally access and benefit from the Service, or is set for a lower bandwidth than the one You use, will be considered an unacceptable use of the Service.
The Company reserves the sole judgment in determining unacceptable use of the Service, and You agree to be bound by these determinations. When an unacceptable use is suspected, it will be Your obligation to prove The Company that You have not misused the Service. The Company may use a variety of methods, at its discretion, to flag accounts for possible unacceptable use; provided that The Company does not make any representations or warranties as to the effectiveness or results of its unacceptable use detection program and shall not be responsible for its failure to detect any misuse or abuse of the service.
If such unacceptable use of the Service is detected by The Company, a written statement will be sent to You requesting You to subscribe to the adequate rate plan, according to Your needs, within thirty (30) days’ time. Furthermore, You will be charged a double rate during that period of time. If, after the period of time given, You have not subscribed the corresponding rate plan, The Company may, at The Company’s sole discretion, automatically adjust Your subscription to the corresponding rate plan without notice, or terminate this Agreement for cause.
6. PRICING; PAYMENT
The Company will price the Service using a subscription fee as specified in Your Order Document. The fee will be based on usage parameters such as the number of users using the Service, the routers, and the bandwidth. Fees will increase for enhanced functionality or larger scope as set forth in this Clause.
You will pay the recurring fees depending on the subscription outlined in Your Order Document. Either way, it shall be charged prior to the start of the term of use of the Service. The price at which the Service is subscribed will remain unalterable from the moment You accept this Agreement until the conclusion of the subscription term. The Company reserves the right to modify the price of the Service upon the conclusion of a subscription term, with thirty (30) days’ written notice, delivered electronically or otherwise. All fees will be paid in the currency specified on Your Order Document and will be charged to the bank account or credit card appointed by You in Your Client Account, or otherwise by SWIFT wire payment to a bank account specified by The Company.
To ensure proper payment, You are solely responsible for providing and maintaining accurate contact and payment information associated to Your Client's account and Company Client ID. You agree to pay all applicable taxes or charges imposed by any government entity in connection with Your use of the Service.
The amount of the fee will vary depending on the type of subscription specified in Your Order Document, the range of services contracted, in accordance to Section 4, and the discounts that, where appropriate, are applied.
The Company may also offer the Service using a free trial period. In this case, the Service is made available to You for a limited amount of time at no cost to You. In order to request a free trial of the Service, You must register an account through the Service’s website. By submitting Your billing information before the conclusion of the free trial period (or within a reasonable period of time, in The Company’s sole discretion, after the conclusion of the free trial period), You indicate Your desire to subscribe to the Service, and at the end of the free trial period a paid subscription at the then-current rate for the plan most appropriate for You will begin, unless The Company is notified otherwise before the end of the trial period.
The free trial period will be used, if necessary, to complete the configuration of Your networking hardware to feed data to the Service.
7. SERVICE RESTRICTIONS
You agree not to (a) use the Service except as expressly authorized in this Agreement and Your Order Document; (b) attempt to copy and/or distribute the Software; (c) modify, adapt, or create derivative works of the Software; (d) rent, lease, loan, resell, transfer, sublicense (including, but not limited to, offering any of the functionality of The Service on a service provider, hosted, or time sharing basis) or distribute the Service to any third party; (e) decompile, disassemble or reverse-engineer the Software or otherwise attempt to access or derive the Software source code; (g) authorize any third parties to do any of the above. Any consultant, contractor, or agent hired to perform services for You may operate the Software on Your behalf under these terms and conditions, provided that: (i) You are responsible for ensuring that any such third party agrees to abide by and fully comply with the terms of this Agreement on the same basis as applicable to You; (ii) such use is only in connection with Your Internal Business Purpose; (iii) such use does not represent or constitute an increase in the scope of the Service provided hereunder; and (iv) You remain fully liable for any and all acts or omissions by such third parties related to this Agreement. Any violation of this Section shall be a material breach of this Agreement subject to immediate termination of this Agreement for which no notice from The Company shall be required.
You expressly agree to use the Service solely for Your Internal Business Purpose and that such use does not include use of Your systems, networks or devices as part of services You provide for a third party's benefit without the express, written consent of The Company.
8. SOFTWARE UPGRADES; CHANGES IN SUPPORT AND SOFTWARE
The Service is hosted by The Company, and software updates are executed by The Company at its sole discretion.
When available, The Company may perform updates, upgrades, application of maintenance releases, and change, add, remove, or reset access credentials relating to the Service.
The Company may alter Support from time to time, using their reasonable discretion, but in no event shall such alterations result in (i) material diminishment of the level of Support set forth herein; (ii) materially diminished obligations for The Company; (iii) material diminishment Your rights; or (iv) higher fees during the then-current term. The Company shall provide You with thirty (30) days prior written notice (delivered electronically or otherwise) of any permitted material changes to the Support contemplated herein.
If Your Order Document stipulates that You are licensed to run an “on-premises” version of the Service, (i) You may exceptionally host the Software in connection with the Service in Your own data center; (ii) You are solely responsible for the provisioning, installation and maintenance of a compatible platform, with the minimum specifications as designated by The Company; (iii) You are solely responsible for the platform service runs on, including but not limited to hardware, operating system, software components (excluding the Software), and data backups; (iv) You agree to collaborate with The Company to perform the installation, upgrades, and/or troubleshooting of the Software; (v) You agree that platform specs may increase with Software upgrades, and You will upgrade Your platform accordingly; (vi) You understand that The Company may require remote access to Your system for the installation, maintenance, troubleshooting and/or installation of upgrades to the Software, and will collaborate in finding a satisfactory means for providing The Company with remote access to Your installation if deemed necessary at the sole discretion of The Company; (vii) You understand that refusing to comply with these terms, including the failure to upgrade the Software at the request of The Company, implies the loss of Support, which will be provided only on a best-effort basis, and may render Your installation unusable.
9. CONFIGURATION AND CUSTOMIZATION
You can alter and customize the set of configuration options and predefined settings (parameters) that affect the functionality and/or look-and-feel of the Service, as available in the configuration panel. Parameters have effects over the Service; You are solely responsible for choosing sensible settings, and for ensuring settings do not bypass the limits of Your Subscription specified in Your Order Document. In the event that incorrect settings or configurations cause damage to the Service, The Company shall not be held responsible in any case and under any circumstances for any special, indirect, incidental, consequential or punitive loss or damages of the Service. Furthermore, You shall exempt and hold harmless The Company against any liability, damage, loss, cost or expense caused by the incorrect setting or configuration.
10. SUPPORT AND REMOTE ASSISTANCE
If terms specifying a specific level of support and/or maintenance are set forth in Your Order Document and/or any “Support and Maintenance Terms” document provided to You, those terms supercede any conflicting terms mentioned in this section. The Company also guarantees to You a level of Service meeting the terms of the “Service-Level Agreement”, if any, attached to this Agreement.
The Company shall attempt, on a best-effort basis, to Support the Software and the Service during the current term of these Terms and Conditions, subject to the termination provisions herein.
Updates to the Service, if any, carried out under the terms of this Agreement, shall be made for maintenance purposes and they must not be expected to lead to a new major version of the Service.
Technical assistance will be offered via telematic means. Your cooperation and assistance to make Service compatible with hardware, software, and other components or systems may be needed.
Should You report a purported defect in the Software or Service to The Company, The Company may request the following information: (a) a general description of the operating environment, (b) a list of all hardware components, operating systems and networks, (c) a reproducible test case, and, where applicable, (d) any log, trace, and system files. The Company acknowledges that You have the right to refuse to provide this information to The Company, but that Your failure to provide this information may prevent The Company from identifying and fixing that purported defect. The Company shall not be responsible for any loss, claim or other liability that may arise from the defects and errors reported but not fixed due to Your lack of cooperation.
No other maintenance or Support is included in these Terms and Conditions.
The Company will have no obligation of any kind to provide Support for problems caused by, or arising out of, any of the following:
(i) Modifications to the Software or Service not made by, or with the explicit permission of, The Company;
(ii) Use of the Service other than as authorized in the Agreement or as provided in the documentation for the Software;
(iii) Damage to the media on which the Software is provided, or to the machine on which the Software is installed;
(iv) Your negligence or fault, including, but not limited to, incorrect settings for configuration options;
(v) The use of unsupported web browsers, or outdated versions of supported web browsers, as described in Section 3.
(vi) Third-party products or product versions not expressly supported by The Company; or
(vii) Conflicts related to replacing or installing hardware, drivers, and software that is not supported by The Company
If The Company determines that it is necessary to provide support for a problem caused by any of the aforementioned errors, The Company will notify You thereof as soon as it becomes aware of the error and will have the right to invoice You at The Company’s then-current time and materials rates for any such support provided by The Company.
You are solely responsible for obtaining and maintaining any equipment, network connections and software necessary to use and access the Service. Internet access is required to use the Service. You are solely responsible for complying with any minimum system requirements, and for obtaining, installing, configuring, and maintaining suitable equipment and software, including any necessary system or software upgrades, patches or other fixes, which are or may become necessary to access the Service and to operate Your computer or other devices used to access the Service.
The Company owns all worldwide right, title and interest in and to the Software and in and to the Service, including all worldwide patent rights (including patent applications and disclosures); copyright rights (including copyrights and copyright registration with respect to computer software, software design, software code, software architecture, firmware, programming tools, graphic interfaces, reports, dashboards, business rules, use cases, screens, alerts, notifications, drawings, specifications and databases); trademark rights (including the goodwill associated therewith); moral rights; trade secrets and other rights with respect to confidential or proprietary information; know-how; other rights with respect to inventions, discoveries, ideas, improvements, techniques, formulae, algorithms, processes, schematics, testing procedures, technical information and other technology; and any other intellectual and industrial property rights, whether or not subject to registration or protection; and all rights under any license or other arrangement with respect to the foregoing (the "Intellectual Property Rights"). Except as expressly stated in this Agreement, The Company does not grant You any Intellectual Property Rights in the The Company Service, and all right, title, and interest in and to all copies of the The Company Service not expressly granted herein remain with The Company, its suppliers and/or its licensors. The software used to provide the Service is copyrighted and protected by the laws of Spain and other countries, as well as international treaty provisions. You may not remove or obscure any copyright, trademark, and/or any other intellectual property or other proprietary notices from the Service. Raw data collected in the performance of the Service, including machines’ traffic logs and usage statistics, together with all elaborations, computations, displays, graphics, screenshots, output, or otherwise used to produce or produced by the processes generated by the Software or Service or components thereof shall remain the exclusive property of The Company. You shall in no way receive title over such raw or elaborated or computed data and shall refrain from making use of such data for purposes other than the performance of the present agreement. You acknowledge that the raw data collected in the performance of the service, to the extent in which they do not originally belong legally to a third party or to You, are a valuable asset of The Company; You undertake to cooperate with The Company, at simple request, to avoid infringement and, if such infringement occurs, to remove the effects of such extent.
13. TERM; RENEWAL; PAYMENT; CANCELLATION; TERMINATION; DESTRUCTION OF DATA; REFUNDS
This Agreement will come into force on the date The Company commences providing the Service or Software to You, and will continue in force for the subscription period outlined in Your Order Document. Upon the conclusion this period, this Agreement will be renewed automatically for an equal length of time, and You expressly consent to this renewal.
You may withdraw Your consent to this renewal:
(a) if the subscription period is less than three months, without advance notice;
(b) otherwise, by providing written notice to The Company of Your decision no less than thirty (30) days in advance of this renewal;
and, unless renewed, upon expiration of the subscription period this Agreement shall terminate.
In the event Your account goes into arrears (as a result of, but not limited to, a payment being declined, missing, or late), You agree that it will be considered a material breach of this Agreement for Your account to not be brought current:
(c) if the subscription period is less than or equal to three months, within 15 days;
(d) otherwise, within 30 days.
The Company may terminate this Agreement (and any rights granted to You therein) upon thirty (30) days’ written notice in the event that You breach any provision of this Agreement and have not remedied the breach during such notice period. Notwithstanding the foregoing, a material breach of any license granted to You shall be grounds for immediate termination without notice.
Any breach shall not be considered invocation of Your right to withdraw Your consent to renew this Agreement as set forth above.
Upon termination of this Agreement, the rights granted hereunder will automatically terminate, and You agree to immediately cease using the Service (and, if applicable, the Software, and to destroy all copies thereof in Your possession).
Section 1 (Definitions), and Section 11 (Exclusions) through 24 (Miscellaneous) inclusive, shall survive termination of this Agreement.
Data received from You and/or Your Clients will be retained for no less than ninety days from receipt, unless otherwise specified in Your Order Document, and The Company reserves the right to irreversibly destroy data falling outside this timeframe. Notwithstanding the foregoing, all data received from You (and, if applicable, from Your Clients) will be irreversibly destroyed after termination of this Agreement. You consent to the destruction of data as described herein.
You acknowledge and agree that The Company is never obligated to refund or reimburse any fees or monies received from You.
Unless otherwise provided herein, all rights and remedies, whether conferred hereunder or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently. The failure by either party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. The terms and conditions stated herein are declared to be severable. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
You agree that The Company may publish a brief description highlighting Your deployment of the Service and/or Software, and identify You as a customer on any of The Company's websites, client lists, press releases, and/or other marketing materials.
16. GOVERNING LAW; DISPUTE RESOLUTION
This Agreement shall be construed in accordance with the laws of Spain and Catalonia, especially Ley 34/2002, de servicios de la información y de comercio electrónico; any dispute arising out of or connected to its validity, performance or termination shall be subject to the exclusive jurisdiction of the courts of Barcelona.
You may not assign, delegate or transfer this Agreement, in whole or in part, by agreement, operation of law or otherwise. The Company may assign this Agreement in whole or in part to (i) an Affiliate, upon written notice to You (such notice to be delivered electronically or otherwise) or (ii) in connection with an internal reorganization or in connection with a merger, acquisition, or sale of all or substantially all of The Company's assets. Any attempt to assign this Agreement other than as permitted herein will be null and void; provided, however, The Company may assign its rights to receive payment due as a result of performance of this Agreement to a bank, trust company, or other financing institution, and may assign this Agreement in accordance with the applicable law. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties' permitted successors and assigns.
This Agreement along with any additional terms incorporated herein by reference, including any Order Documents and any Exhibits hereto, constitute the complete and exclusive understanding and agreement between the parties and supersede any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to their subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of all parties to this Agreement. Any terms and conditions contained or referenced by either party in a quote, purchase order, acceptance, invoice or any similar document purporting to modify the terms and conditions contained in this Agreement shall be disregarded and have no effect unless otherwise expressly agreed to by the parties in accordance with the immediately preceding sentence.
19. FORCE MAJEURE
The Company will not be responsible for any failure or delay in its performance under these Terms and Conditions due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.
20. PRIVACY AND DATA SECURITY; NON-DISCLOSURE
The Service may require access to, or integration with, Your current data that may be sensitive (e.g. personal information). Otherwise, in order to gain Access to the Service, You may be required to fill in one or multiple forms with Your personal data.
In compliance with Act 15/1999, of 13th December, of Personal Data Protection, all data received and that may be considered as personal will be stored in The Company’s databases, and all necessary security measures will be enforced to the best of The Company’s ability to ensure the confidentiality and integrity of such information. All personal data will be stored and handled by The Company only in order to provide and inform You of the services offered, as well as to provide You with any Support to which You may be entitled.
Furthermore, all Users and Clients may exercise their rights of access, amendment, cancellation, and opposition of their personal data by written statement to The Company at the address referred to in section 1 of this document. You commit to inform The Company of any alteration of Your personal data and, as long as You do not communicate otherwise to The Company, The Company will assume Your data has not changed.
The Company will make every reasonable effort to prevent data loss and unauthorized access. You acknowledge that perfect security does not exist in networked systems, and therefore, You agree to hold The Company harmless in the event of any unauthorized access, disclosure, or use of Your data.
In the interest of constant product and service improvement through research and development, The Company reserves the right to use all data sent to, and user behaviour (for example, via web analytics) in connection with, the Service. Under no circumstances will network traffic data which has not been anonymised, aggregated, or otherwise obfuscated be released in any form outside of The Company.
21. CONFIDENTIAL INFORMATION
It will be treated as and considered “Confidential Information" any and all technical or business information, ideas, materials, know-how or other subject matter that is disclosed by one party to the other party which:
(a) If disclosed in writing, is marked "confidential" or "proprietary" at the time of such disclosure; or
(b) If disclosed orally, is identified as "confidential" or "proprietary" at the time of such disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or
(c) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary.
The Company’s Confidential Information shall include the materials, source code and license keys to download or use the Software or the Service.
Use and Disclosure Restrictions. The party receiving Confidential Information ("Recipient") agrees:
(i) To maintain the Confidential Information of the party disclosing such information (the "Discloser") in the strictest of confidence; and
(ii) Not to disclose such Confidential Information to any third parties; and
(iii) Not to use any such Confidential Information for any purpose other than in furtherance of this Agreement and the activities described herein. Recipient will treat Confidential Information of the Discloser with the same degree of care as it accords to its own Confidential Information, but in no event with less than reasonable care. Recipient may disclose the Confidential Information of Discloser to its directors, officers, employees and consultants (collectively, "Representatives") who have a bona fide need to know such Confidential Information, but solely to the extent necessary to pursue the activities described herein and for no other purpose, provided that each such Representative first executes a written agreement (or is otherwise already bound by a written agreement) that contains use and nondisclosure restrictions at least as protective of the other party's Confidential Information as those set forth herein.
Exclusions. The obligations of Recipient under the previous Section shall not apply to any Confidential Information which:
(a) Is now or thereafter becomes generally known or available to the public, through no act or omission on the part of Recipient (or any of its Representatives, affiliates, or agents) or any third party subject to any use or disclosure restrictions with respect to such Confidential Information; or
(b) Was known by, or lawfully in the possession of, Recipient prior to receiving such information from Discloser, without restriction as to use or disclosure; or
(c) Is rightfully acquired by Recipient from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or
(d) Is independently developed by Recipient without access to any Confidential Information of Discloser. The provisions of this Section will not restrict Recipient from disclosing Discloser's Confidential Information to the extent required by any law or regulation or when compelled by a court or administrative agency of competent jurisdiction. Upon termination of the Agreement, Recipient will promptly return it to the Discloser, or, at Discloser's sole option, destroy all tangible items and embodiments containing or consisting of Discloser's Confidential Information and all copies thereof and provide written certification of such destruction or return by an authorized person.
22. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
To the maximum extent permitted by applicable law, the Service is provided strictly on an "as is" and “as available” basis, without further warranties, conditions, representations or guarantees of any kind, either expressed, implied, statutory or otherwise, including but not limited to any implied warranties or conditions of merchantability, satisfactory quality, title, noninfringement or fitness for a particular purpose. The Company does not warrant that the operation of the Software or the Service will be uninterrupted or error free at any time, that defects will be corrected, or that the Service and any content or features made available in conjunction with or through the Service, or the server that makes it available, is free of viruses or other harmful components. You bear the entire risk as to the results, quality and performance of the Service should the Service prove defective.
To the maximum extent permitted by applicable law, in no event and under no legal theory shall The Company be liable to You or any other person, whether in contract, tort, negligence or otherwise, for any general, direct, indirect, special, incidental, consequential, punitive or exemplary losses, cover or other damages of any character arising out of the use of (or inability to use) the Service, including but not limited to personal injury, unauthorized data access, loss or corruption of data, loss of profits, loss of assignments, data or output from the Service being rendered inaccurate or unusable, wasted management or staff time, failure of the Software or the Service to interoperate with any other programs, server downtime, damages for loss of goodwill, business interruption, computer failure or malfunction, loss of production or operation time, or any and all other damages or losses of whatever nature, even if The Company has been informed of the possibility of such damages.
If the Client violates any of the Terms, The Company may: (1) without notice, suspend or block the Service or otherwise restrict the Client’s right to use the Service, including blocking any traffic from the Client’s IP address(es) or network, or (2) set a term for the Client to end or cure the breach.
Notwithstanding the foregoing, The Company reserves the right to take any action that it deems appropriate, without notice, to prevent any violation, enforce any provision, or rectify any alleged violation of the Terms or any applicable law at its sole discretion. This means, inter alia, that if The Company has reasonable grounds to believe that the Client’s use of the Service may harm The Company or any other third parties, then The Company has the right to take adequate measures under its control to prevent, stop and eliminate the harm, where possible, in order to protect those third parties. Upon application of any remedies by The Company, the Client may lose access to the Service or suffer a loss of certain features, functions, parts or elements of the Service.
All notices required or permitted under this Agreement or any Exhibit hereto will be in writing and delivered in person, by confirmed facsimile transmission, by overnight delivery service, by registered or certified mail, postage prepaid with return receipt requested, or by e-mail with return receipt, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth in the applicable Order Document(s) or to such other address as may be specified by either party to the other party in accordance with this Section.
You agree that any unauthorized and/or unlawful use of the Software, of the Service, or of Confidential Information would result in irreparable injury to The Company for which monetary damages would be inadequate. In such event, the Company shall have the right, in addition to other remedies available to it pursuant to this Agreement, to immediate injunctive relief against You without the need to post a bond. Nothing contained in this Agreement shall be construed to limit any legal remedies available to the Company.
The Company’s failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right of the Company to enforce such provision. The Company reserves the right to make changes to this Agreement at any time, with notice to You by means of posting a new version of this Agreement on The Company’s website, and You acknowledge that You will check The Company’s website regularly to that effect.
Each party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of this Agreement. This Agreement shall not be construed against either party by reason of its drafting.