END USER LICENSE AGREEMENT

END USER DESKTOP SOFTWARE LICENSE AGREEMENT – MESTRELAB RESEARCH SL

GENERAL TERMS AND CONDITIONS FOR THE PURCHASE OF USER LICENSES OF PROPRIETARY SOFTWARE GRANTED BY MESTRELAB RESEARCH, S.L.

IMPORTANT – PLEASE READ THESE TERMS CAREFULLY BEFORE CONFIRMING AN ORDER, PAYING THE FEES, INSTALLING, OR USING THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS HEREIN, DO NOT CONFIRM AN ORDER AND DO NOT INSTALL, ACCESS OR USE THE SOFTWARE.

BY CONFIRMING AN ORDER, PAYING FOR OR INSTALLING OR ACCESSING THE SOFTWARE YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT AND THAT YOU AGREE TO ITS TERMS. IF YOU HAVE CONFIRMED AN ORDER OR PAID THE LICENSE FEE ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, AND THAT YOUR USE OF THE SOFTWARE ON BEHALF OF SUCH ENTITY IS GOVERNED BY ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS HEREIN, DO NOT CONFIRM OR PAY AND DO NOT INSTALL, ACCESS OR USE THE SOFTWARE.
MESTRELAB ONLY ACCEPTS ORDERS FOR SOFTWARE LICENSES ON THE UNDERSTANDING THAT THE CUSTOMER SUBMITTING OR CONFIRMING THE ORDER HAS ACCEPTED THE TERMS OF THIS AGREEMENT AND THAT ANY ADDITIONAL OR CONFLICTING TERMS IN THE ORDER DO NOT APPLY UNLESS SEPARATELY SIGNED BY AN AUTHORIZED REPRESENTATIVE OF MESTRELAB.

MNOVA END USER LICENSE AGREEMENT (“EULA”) – MESTRELAB RESEARCH SL 

This EULA governs the sale and purchase of licenses for the use of proprietary Software offered by MESTRELAB RESEARCH, S.L, (“Mestrelab or We/Us/Our”) a limited liability company Authorized in the Registro Mercantil de A Coruña, on 13th January 2005, in volume 2914 of the general section of the archive, sheet 23, page nº C-34.427, 1st inscription.

This EULA together with the “Order” (defined below) is a binding agreement between Licensee (“You/Your”) and Mestrelab (the “Agreement”). Any additional or conflicting terms in Your request for proposal, or any other written or oral communication are not binding unless separately signed by Mestrelab.

1.- 1. DEFINITIONS

Documentation” means the documents, reports, system and user manuals, and guides provided by Us, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software, as revised and updated by Us from time to time.

“Licensee Fee” means the License fees, including all taxes thereon, to be paid by Licensee in accordance with the Order.

“LICENSEE or You/Your” means the individual or the entity identified in the Order as the purchaser of the license or licensee.

“License” has the meaning in Clause 3.

Order” means the order submitted by or on behalf of the Licensee to purchase a license or the request of a trial for the Software, or the receipt of a trial version of the Software in the terms accepted by Mestrelab (by issuing an invoice or any other means of valid acceptance) and/or (ii) the quotation, issued by Mestrelab, and countersigned by the Licensee (e-signature permitted) and returned to Mestrelab (email permitted) no later than the term established in the quotation.

“Authorized User” means any natural person, such as but not limited to an employee or individual consultant or contractor (who is a natural person) of the Licensee authorized by You to Use the Software and for whom the License has been purchased or received.

“Software” means the MNOVA computer programs licensed to You by Us as described in the Order, including any updates which may be provided by Us in accordance with the Order.

“Term” means the duration of the License as set forth in the Order.

“WEBSITE” means Mestrelab’s corporate website: www.mestrelab.com

2. GENERAL INFORMATION

2.1. This EULA is permanently available on the WEBSITE so that You may review, prior to purchasing a License, performing a trial or beta testing the Software, the terms and conditions affecting the use of the Software.
2.2. Licenses may be purchased by electronic means, via internet, through the WEBSITE or via email.
2.3. A purchase order form (detailing the specific software product which may be ordered, price, licensing model (e.g. perpetual or on a subscription basis), any applicable taxes and any other charges is available on the WEBSITE for You to submit every time You wish to purchase a specific license.
2.4. After submitting the purchase order form through the WEBSITE, You will be provided with a USER NAME and a PASSWORD to access an exclusive, private and secure area where You may confirm your purchase order, and upon confirmation, this EULA becomes binding. If instead of submitting the purchase order through the WEBSITE, You have sent Us a request for quotation, this EULA becomes binding, on the earlier of: (i) Our receipt of the License Fees (as quoted by Us); or (ii) the date when You countersign (e-signature permitted) Our quotation and return it to Us (email permitted) no later than the term indicated in the quotation.
2.5. Once the purchase order has been confirmed and the License Fee received, We will send to the email address specified in the purchase order as Your primary contact email (within the following business day depending on local statutory bank holidays) the confirmation of the Software license purchased and the relevant invoice.
2.6. Once the purchase order has been confirmed and the License Fee received, the Software will be delivered. We will not be responsible for any error caused in the delivery of the Software if the details introduced by You in the purchase order form (including but not limited to the primary contact email) are not accurate or are incomplete.
2.7. The Software may need to be customized and configured to ensure is optimal operation to fulfil the end user requirements. This customization and configuration can be carried out, upon request by the end user user, agreement of specifications and payment of a service fee, by the Mestrelab Customer Service Team. It is understood that the Mestrelab Customer Services will configure and customize the Software to the best of its ability and based on its understanding of the end user requirement, which doesn’t offer any guarantee that the configured and customized part of Software will fulfil the customer understanding and expectations of requirement.

3. LICENSE

3.1. Subject to Your strict compliance with this Agreement including payment of the License Fee, You are granted a non-exclusive, non-transferable, non-sublicensable, limited license during the Term, to use, solely by and through Authorized Users, the executable form of the Software and the Documentation subject to all conditions and restrictions set forth in this Agreement.

3.2. The license for every contracted product will be immediately and fully available for THE LICENSEE from the date the invoice will be issued. Mestrelab Research shall notify you, by means of a e-mail sent to the email address you provided, that the license/s you acquired has/have been made available, and containing precise instructions for you to proceed with the download, installation or access to the software. The date that said communication is sent by Mestrelab (the “delivery date”) is the date on which the term of the license, and the M&S services, when applicable, shall start.

Lack of download, installation or access shall under no circumstance postpone the beginning of the term of the license, or be deemed as a purchase withdrawal, or give right to claim any reimbursement, either partially or in full.

3.3. This License grants You the right, exercisable solely by and through Your Authorized Users, to:

(a) Download and install the Software on any number of computers or workstations (provided these are owned or leased and controlled by You) for use concurrently by a number of Authorized Users up to the total number of Authorized Users (as set forth in clause 5 below).
(b) Use and run the Software as properly installed in accordance with this Agreement and the Documentation and solely for Your internal business purposes. Unless separately authorized by Us in writing, the use of the Software in the operation of a service bureau is prohibited. In addition, if the Order restricts the use for academic purposes, the right to use the Software, and the Documentation, for any commercial purpose whatsoever, whether to benefit You or indirectly to benefit any third party, is prohibited.
(c) The right to make one (1) copy of the Software solely for archival purposes, program error verification, to replace defective media, or for backup purposes provided that You shall not, and shall not allow any person to, install or use any such copy other than if and for so long as the installed copy is inoperable, and that You have uninstalled and otherwise deleted such inoperable copy. All copies of the Software: (i) will be the exclusive property of Mestrelab; (ii) will be subject to the terms and conditions of this Agreement; and (iii) must include all trademark and copyright notices contained in the original.
(d) Download or otherwise make one (1) copy of the Documentation and use such Documentation, solely in support of Your use of the Software. All such copies of the Documentation: (i) will be the exclusive property of Mestrelab; (ii) will be subject to the terms and conditions of this Agreement; and (iii) must include all trademarks and copyright notices contained in the original. Documentation will be provided only in English. We will make reasonable efforts to provide a translation at Your request subject to the payment of additional costs for translation services.

4. PERFORMANCE OF SERVICES

4.1. MESTRELAB agrees to perform to the best of its ability the services agreed with THE LICENSEE in accordance with the user license and always under the principle of contractual good faith. Thus, MESTRELAB will perform free technical support of the tools and features of the software whenever these are requested by THE LICENSEE, during the Term. Thereafter, THE LICENSEE may continue using the Software Licenses if perpetual, but will not have access to the updates and the technical support.
4.2. Mestrelab will provide reasonable technical support via email during its normal business hours. Technical support questions and requests should be addressed to support@mestrelab.com

5. RESERVATION OF RIGHTS AND FEEDBACK

5.1. The Software is a confidential trade secret of Mestrelab and its licensors. We reserve all rights not expressly granted to You in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing herein grants, by implication, waiver, or otherwise, to You or any third party any intellectual property rights or other right, title, or interest in or to MESTRELAB’s or its licensors’ intellectual property. Title to the Software and the Documentation remains with Mestrelab and its licensors.
5.2. You shall not use MESTRELAB’s trademarks (including MESTRELAB RESEARCH, Mnova, MestRe and “M”) as part of the name under which You conduct any business or in any other way, except as expressly permitted in writing by Us.
5.3. Feedback. If You or any of Your employees or contractors sends or transmits any communications or materials to Us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Mestrelab IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback“), We are free to use such Feedback. You hereby assign to Us on Your own behalf, and on behalf of Your employees, contractors and/or agents, all rights, titles, and interest in, and MESTRELAB is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although We are not required to use any Feedback.

6. AUTHORIZED USERS AND GEOGRAPHIC CONDITIONS

6.1. The aggregate number of Authorized Users will not exceed the total number of Users set forth in the Order, except as expressly agreed to in writing by the Licensee and MESTRELAB and subject to payment of the then current per Authorized User fee (pro-rated for any partial Term based on when the additional Authorized Users are authorized). Payment of the additional fees will increase the total number of Authorized Users accordingly.
6.2. The Licensee agrees to notify Mestrelab in writing as soon as it becomes aware of any unauthorized use of the Software by any person. In addition, MESTRELAB may verify, from time to time during the Term, the number of Authorized Users, and if the number of Authorized Users results to exceed the then total number of Users, MESTRELAB shall invoice the Licensee and the Licensee shall pay MESTRELAB the applicable License Fees for such additional Authorized Users (pro-rated for any partial Term based on when the additional Authorized Users were authorized). To that end, the Licensee will cooperate with Mestrelab in providing the information and/or accesses requested
6.3. Use of concurrency licensing model: The geography and Site(s) where the concurrencies are used must be specified to and get the consent of Mestrelab. Permission of Use of concurrent licenses in specific time zones different by more than three (3) hours than the initial place of Use or purchase and permission for Using the concurrent licenses by Affiliates shall be granted by Mestrelab and an additional fee maybe requested.

7. RESPONSIBILITY FOR AUTHORIZED USERS

You are responsible for ensuring that any usage by Authorized Users is in accordance with the terms and conditions of this Agreement, and therefore, You agree to inform each Authorized User of the relevant terms of this Agreement. You are responsible and liable for all uses of the Software and Documentation, and for all actions and failures to take required actions with respect to this Agreement, by Authorized Users or by any other person to whom You or an Authorized User may provide access to or use of the Software and/or Documentation (whether such access or use is permitted by or in violation of this Agreement).

8. USE RESTRICTIONS

You shall not use the Software or Documentation for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any Authorized User to:

8.1. copy, modify, translate, or otherwise create derivative works or improvement of the Software or Documentation, in whole or in part, expect as explicitly provided in this Agreement;
8.2. make error corrections to the Software, if not required as part of the Software’s functionality and if not explicitly described in the Documentation,
8.3. provide any person other than Authorized Users, with access to or use of Software or Documentation, unless separately authorized in writing by Mestrelab;
8.4. rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or Documentation to any third party, except to any third party Authorized User;
8.5. combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs except to the extent that Mestrelab is legally required to permit such specific activity on open source portions of the Software pursuant to the applicable open source license;
8.6. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part;
8.7. remove or conceal any proprietary notices from the Software or Documentation; or use the Software or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law;
8.8. disable, tamper with, or seek to circumvent any protections or breach any security device used or controlled by Mestrelab other than by an Authorized User’s reasonable use of his or her own then valid access key; or
8.9. use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is or may result in to Mestrelab’s commercial disadvantage.

9. LICENSEE RESPONSIBILITIES

9.1. You are responsible for setting up, maintaining, and operating in good repair and in accordance with the Documentation all computers and workstations, and internet connectivity needed to access and used the Software. You are required to (a) use reasonable security precautions for Your own IT assets that may be used in connection with Your use of the Software, e.g. maintain up-to-date virus scanning and operating system security patches and firewall protection; and (b) require each Authorized User to use reasonable security precautions. You are responsible for the prevention of security issues with regard to your own IT assets, including Software hosted on your systems. You are also responsible for maintaining regular data backups or redundant data archives. We disclaim responsibility for any damages incurred as a result of Your failure to secure Your systems.
9.2. You shall ensure that the Software is downloaded, installed, accessed, or otherwise used only in the site(s) and the geographical areas specified in the Order. You will not allow access to the Software through any computers or terminals located outside such areas, through the Internet, VPN or otherwise, except as expressly agreed in writing by Mestrelab.The access via VPN or virtual machines will be permitted subject to the number of licenses in use not to exceed the number of acquired licenses, and the user accessing via VPN or Virtual machine being the Authorized User
9.3. You are solely responsible for the use You and Authorized Users give to the Software and for all conclusions, decisions, and actions based on, Your and Authorized Users access or use of the Software Documentation. Mestrelab will in no case be responsible for the use given to the Software, whether for analysis, conclusions, works or other results offered by the Software, as these are dependent on Your or Authorized Users’ knowledge, expertise and interpretations.

10. TRIAL VERSION

If Mestrelab has agreed to deliver a free of cost evaluation version of the Software to You for an agreed trial period, the use of the trial version of the Software is subject to the terms and conditions of this Agreement, except that You (i) may apply the trial version solely for non-productive use (i.e. evaluation and testing of the Software only); (ii) after expiry of the trial period, access to the Software is contingent upon Your payment of the relevant fees, and (iii) the evaluation version is provided on an “as is” basis without any warranty (express or implied). Notwithstanding anything to the contrary herein, MESTRELAB will not be liable for any damages whatsoever relating to Your use of such trial version..

11. PAYMENT

All License Fees are payable in the manner set forth in the Order and are non-refundable, except as may be expressly stated herein. Unless otherwise stated in the Order, all License Fees are payable in advance and in Euros. Any renewal of the License shall not be effective until the License Fees for such renewal have been paid in full.

12. WARRANTIES

12.1. Warranty. Mestrelab warrants to You during the Term, that the Software (i) will substantially contain the functionality described in the Documentation, and (ii) when properly installed on a computer or workstation meeting the specifications set forth in the Documentation and the instructions supplied by Us, and when operated in accordance with the Documentation, the Software will substantially perform in accordance therewith.
12.2. Warranty voided. The foregoing warranty does not apply, and becomes null and void if You breach any provision of this Agreement, or if You, or any Authorized User, or any other person provided access to the Software by You, or by any Authorized User, whether or not in violation of this Agreement: (i) modifies or damages the Software or any component of the Software; (ii) uses the Software in combination with any software not provided by Us, or (iii) misuses the Software, including any use of the Software other than as specified in the Documentation. In addition, the warranty does not apply if the inoperability or failures of the Software, is caused, in whole or in part by: (i) Your or Authorized Users’ computers and workstations; (ii) internet connectivity; (iii) force majeure event; (v) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Us pursuant to this Agreement.
12.3. Remedy for breach of warranty. Our sole obligation, and Your sole remedy, with respect to any breach of this warranty of performance shall be for Us to make reasonable efforts to correct such nonconformance or provide reasonable alternative functionality at Our sole cost and expense, provided that You make available to Us all information reasonably requested to resolve the reported failure, including sufficient information to enable Us to recreate the error. If We are not able to correct the error within a reasonable amount of time, We will at Your request refund a pro-rata portion of the prepaid License Fee based on the number of months remaining in the Term as of the date that You submit Your cancellation request, subject to You ceasing all use of the Software and Documentation deleting all copies of the Software. We will not be liable or otherwise obliged to pay for substitute products or software replacing the Software.
12.4. Disclaimer. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS CLAUSE 11, WE HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS CLAUSE 11, WE MAKE NO WARRANTY OF ANY KIND THAT THE SOFTWARE, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, OR SYSTEM, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

13. INDEMNITY BY MESTRELAB

Mestrelab shall defend and indemnify You and Your officers, directors, employees, and shareholders from and against any and all any damages, penalties, judgments and reasonable related costs and expenses, including but not limited to reasonable legal fees and expenses, arising out of any third party claim or allegation that Your use or access of the Software in accordance with the terms of this Agreement infringes copyright or other intellectual property right of any third party existing under the laws of United States of America, United Kingdom, the European Union and/or Switzerland. This indemnity is conditioned on You discharging the following obligations: (i) promptly notifying Us in writing of the claim, (ii) cooperating with Us for purposes of assessing the claim, and (ii) allowing Us sole authority to control the defense and settlement of such Claim. In addition:
13.1. If You notify Us of a claim under this Clause 12 or in Our opinion such a claim appears possible, You agree to permit Us, at Our sole discretion, to (A) modify or replace the Software, or component or part thereof, to make it non-infringing, or (B) obtain the right for You to continue to use the Software. If We determine that neither alternative is commercially practical for Us, We may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to You. In case of such termination, We shall refund to You a pro-rata portion of the prepaid License Fee based on the number of months remaining in the Term as of the date that You provide written notice of the claim. We will not be liable or otherwise obliged to pay for substitute products or software replacing the Software.
13.2. This Clause 12 will not apply to the extent that the alleged infringement arises from: (A) use of the Software in combination with data, software, hardware, equipment, or technology not provided by Us or not required by the Documentation writing; (B) modifications to the Software not made by Us; or (C) Third-Party Components (defined in Clause 14).
13.3. This Clause 12 sets forth Your sole remedies and Our sole liability and obligation for any actual, threatened, or alleged claims that the Software infringes, misappropriates, or otherwise violates any intellectual property rights of any third party.

14. LIMITATIONS OF LIABILITY

In no event will MESTRELAB be liable under or in connection with this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any: (a) consequential, incidental, indirect, exemplary, special, or punitive damages; (b) increased costs, diminution in value or lost business, production, revenues, or profits; (c) loss of goodwill or reputation; (d) use, inability to use, loss, interruption, delay, or recovery of any data, or breach of data or system security; or (e) cost of replacement goods or services, in each case regardless of whether MESTRELAB was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable.
In no event will MESTRELAB’S aggregate liability arising out of or related to this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), indemnity, strict liability, and otherwise exceed the licensee fees paid to us during the year in which the event giving rise to the claim has occurred, with a cap of 150,000.00 euros.
You acknowledge and agree that MESTRELAB only grants the rights under this agreement in reliance on limitations of liability set forth in this clause 13 and disclaimers of warranty set forth in clause 11 and that these provisions are essential terms of this agreement.

15. THIRD-PARTY PRODUCTS

15.1. Definition. The Software may include software, content, data, or other materials, that are owned by persons other than Mestrelab, including open source software (OSS) components and other third party components (“Third-Party Components“), and that are provided to Us on license terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses“).
15.2. Availability. A list of Third-Party Components included in the Software, if any, and the respective Third-Party Licenses can be made available at Your request, if not available in the Documentation, “read me” files, notice files, or other Software files. You must comply with all Third-Party Licenses. If You breach any Third-Party License, You will also be in breach of this Agreement.
15.3. Open Source Components:
(a) In the event of conflicts between this Agreement and the license conditions applicable to open-source components, the open-source license conditions shall prevail with respect to the open-source portions of the Software. Therefore, to the extent the terms of the license conditions applicable to open-source components prohibit any of the restrictions in this Agreement, such restrictions will not apply to such open-source component.

(b) You may receive a copy of, distribute and/or modify any open-source code for open-source components of the Software to the extent allowed under the terms of the respective open-source license. Where specific open source license terms entitle the licensee to the source code of such software, then on written request for a reasonable time from when You receive the Software and against payment of Our expenses, We will supply the source code for any open-source component in line with the terms of the applicable license. For this, please contact Mestrelab at: support@mestrelab.com.

15.4. No unbundling. Except to the extent that We are legally required pursuant to any applicable open-source license to permit You to use the OSS portion of Third-Party Components independently or separately, You must under no circumstances use any Third-Party Component independently or separated from the Software.
15.5. Scripting and Automation. The Software may include scripting, macro language, a software development kit, an application programming interface, or other automation features that have been included by Us with the purpose of allowing a certain level of automation and integration with Third-Parties applications. The use of those tools is subject to the following restrictions: (i) they cannot be created to exceed the number of licenses or concurrencies acquired by You, (ii) they cannot be developed or used to replicate functionalities which have been made commercially available by Us in other software applications and (iii) they cannot be developed to allow the Software to be called by external applications and be used as a server (except if agreed to in writing by Us).
15.6. No warranty. Mestrelab disclaims any and all liability arising out of or relating to claims of infringement of third-party intellectual property rights to Third-Party Components.
15.7. Warning. MODIFICATIONS OF ANY COMPONENT OF THE SOFTWARE MAY CAUSE THE SOFTWARE NOT TO OPERATE IN ACCORDANCE WITH THE DOCUMENTATION AND SHALL INVALIDATE THE LIMITED WARRANTY UNDER CLAUSE 12.

16. TERM AND TERMINATION

16.1. This Agreement and the License shall remain in effect for the term set forth on the Order (the “Term“) or until terminated as set forth herein.
16.2. We reserve the right to terminate this Agreement if You breach any material provision hereof. We may terminate the Agreement: (i) with immediate effect and without notice if Your breach constitutes a violation of Our intellectual property rights in the Software or Documentation; (ii) if You fail to pay any amount when due and do not cure such breach within fifteen (15) working days following notice thereof; and (iii) for any other breach, if You have not cured the breach within thirty (30) days following notice thereof.
16.3. Upon expiration or early termination of this Agreement, the License shall also terminate. In the event of such termination, You will immediately cease to use the Software and the Documentation and either return to Us all copies of the Software and the Documentation, with Our prior consent, or provide Us with a certificate of destruction of all copies.
16.4. No expiration or termination shall affect Your obligation to pay all License Fees that may have become due before such expiration or termination, or entitle You to any refund, except as set forth explicitly in this Agreement.
16.5. Provisions of this Agreement which either are expressed to survive its termination or from their nature or context it is contemplated that they are to survive such termination will remain in full force and effect notwithstanding such termination.

17. DATA PRIVACY

17.1. We will process the personal data provided by You (i.e. name, surname, company, email, address, payment details) for several purposes depending on Your interaction with Us, for example to manage your account, provide updates, warranty services, compliance screenings (e.g. to satisfy export control requirements) and invoicing. We will process such data via the website, email or any other contact channel to follow up on any request submitted by You as well as to inform You of Mestrelab’s products and services related to any purchase made by You. These activities are based on either the performance of Our contractual relationship with You, Our legitimate interest, or the fulfilment of a legal obligation. We may engage in general marketing communication with You with Your prior consent. We will not use the Your personal data for automated decision making or profiling.
17.2. We will keep the personal data provided by You for the time required by Our legal obligations and for archiving purposes. We treat such data in confidentiality and use adequate security measures to safekeep Our database.
17.3. The Parties undertake to enter into the relevant data processing agreements required to ensure compliance with applicable data privacy laws, based on Our template. Please contact privacy@mestrelab.com in the case of any privacy-related enquiry.

18. COMPLIANCE WITH LAWS; EXPORT CONTROL

18.1. You agree to comply with all applicable laws with respect to Your and Authorized Users’ use of the Software.
18.2. You acknowledge and agree that the Software and Documentation (“Items”) are subject to export control, customs, economic sanctions, and anti-boycott laws, regulations, rules, and associated executive orders enacted, issued, entered, promulgated, or enforced by the European Union, the United States, the United Nations, the Organization for Security and Co-operation in Europe (the “OSCE”), or the country where You reside (provided such applicable laws or regulations of such country do not conflict with applicable regulations of the European Union or the United States) (each individually, an “Export Control Law” and, collectively, the “Export Control Laws”).
18.3. You will comply with all applicable Export Control Laws and not provide any Items to anyone in a country or other destination that is subject to a United States Government export embargo) (an “Embargoed Destination”), to a representative of an Embargoed Destination, or to persons or for purposes prohibited under any Export Control Law. Prohibited end-uses include the research on or development of chemical, biological or nuclear weapons, unmanned air vehicles or missiles, or nuclear explosive or fuel cycle activities.
18.4. In addition to any other remedy, We may have under this Agreement or at law, Mestrelab may terminate this Agreement immediately and without notice, and deny access to or use of all or any part of the Items if: (i) We have not received all export-related documentation requested by Us; or (ii) We believe that such activity may violate any Export Control Law or Our own compliance policies.
18.5. If You purchase, download, or use the Items, You represent that You are not in any Embargoed Destination, acting for anyone in an Embargoed Destination, and that You are not a person or entity (or owned or controlled by one or more entities) that has/have been sanctioned or otherwise listed on a prohibited persons lists issued by the United States, the United Nations, the European Union, the OSCE, the United Kingdom, Japan, Australia or Switzerland.
18.6. You shall indemnify Us for all losses, costs, claims, damages and expenses (including attorneys’ fees and expenses) arising from Your violation or alleged violation of any applicable federal, state or local law, including without limitation, any Export Control Law. This indemnity survives the termination of this Agreement.

19. ASSIGNMENTS

Neither this Agreement nor any rights, obligations or subscriptions granted hereunder may be assigned or delegated, including but not limited to by operation of law, without the prior written consent of Mestrelab (which can be withheld for any or no reason). You shall not assign or otherwise transfer any of Your rights, or delegate or otherwise transfer any of Your rights, obligations or performance under this Agreement, including to your affiliates, without Our prior written consent, which consent shall not be unreasonably withheld. Mestrelab may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent.

20. SEVERABILITY

If any clause of this Agreement was declared void, the remaining clauses will remain in force and will be interpreted according to the intention of the parties and to the purpose of these General Terms and Conditions. MESTRELAB will have the right to waiver any of the rights and faculties derived from this document. Such waiver will in no case imply any subsequent waiver unless otherwise admitted by MESTRELAB in writing.

21. GOVERNING LAW AND JURISDICTION

This Agreement shall be governed by and interpreted in accordance with the laws of Spain, without giving effect to the conflict of law provisions thereof, and the application of the United Nations Convention on Contracts for the International Sale of Goods. Other than as necessary to enforce a final judgment or award or to obtain a preliminary injunction or other equitable relief to safeguard a party’s intellectual property, any action brought pursuant to or in connection with this Agreement shall be brought in the courts of Santiago de Compostela (Spain) without regard to its conflict of law provisions and both parties expressly submit to the jurisdiction, and waive any objections to the venue, of such courts.

 

 

Mestrelab Research SL

Mbook SaaS Account Agreement

This Mbook SaaS Account Agreement (this “Agreement”) is entered into by and between Mestrelab Research SL, Feliciano Barrera 9B-Baixo, 15706, Santiago de Compostela, A Coruña, Spain, with CIF B15964521 (“Mestrelab”) and the subscriber identified below (the “Subscriber”) as of the last date of signature below (the “Effective Date”).

  1. Definitions. The below capitalized terms have the meanings set forth below or in the referenced provision. Other capitalized terms used herein are defined as they arise in this Agreement.
    1. Quote” means a written quote from Mestrelab specifying the SaaS Software modules that Subscriber may subscribe to and the corresponding Subscription Fees for a subscription to such SaaS Software modules payable to Mestrelab.
    2. Mestrelab Server” means the server, operated by Amazon Web-Services, on which Mestrelab maintains an executing instance of the SaaS Software and the Subscriber Content, accessible by Subscriber via the SaaS Services.
    3. Authorized Collaborator” has the meaning set forth in Section 2.3 below.
    4. Authorized Number of Users” means the number of Registered Users that Subscriber has purchased a subscription for pursuant to a purchase order issued or payment made in response to an applicable Quote.
    5. Documentation” means the user documentation provided to Subscriber with respect to the use of the SaaS Software, including the online application help accessible from the SaaS Software, as updated from time to time by Mestrelab.
    6. Mbook API” means an application program interface defined as set of services, protocols and tools for building software third party client applications according to the licensing model.
    7. Registered User” means an employee or individual consultant or contractor (who is a natural person) of Subscriber or its Authorized Collaborator who has been authorized by Subscriber or (if Subscriber permits) its Authorized Collaborator to access the SaaS Software on behalf of Subscriber or its Authorized Collaborator and who has been provided a unique user name and password for use when accessing such SaaS Services.
    8. SaaS Software” means the modules of Mestrelab’s proprietary Mbook software solutions which Subscriber has purchased a Subscription to pursuant to a purchase order in response to a valid Quote.
    9. Subscriber Content” means all text, data, graphics, pictures, or other content that Subscriber, its Authorized Collaborators, or the Registered Users post or upload into the SaaS Software. As set forth in Section 5.3(b), Subscriber Content is the Confidential Information of Subscriber.
    10. Subscription” has the meaning set forth in Section 2.1 below.
    11. Subscription Fees” has the meaning set forth in Section 4.
    12. Term”, “Initial Term”, and “Renewal Term” each have the meaning set forth in Section 3.1.
  2. Grant of Subscription License; Subscription Restrictions.
    1. SaaS License and Subscription. Subject to the terms and conditions in this Agreement and as specified in the Quote, Mestrelab grants to Subscriber, and Subscriber accepts, a nonexclusive, nontransferable license (the “Subscription”), without the right to sublicense, for Registered Users of Subscriber and of its Authorized Collaborators to remotely access and interface with, via the Internet, an executing instance of the SaaS Software that is operating on and from a Mestrelab Server, through the Registered Users’ use of supported and properly configured web browsers, in the manner described in the SaaS Software Documentation (collectively, the “SaaS Services”), solely for Subscriber’s benefit. Subscriber acknowledges that while the SaaS Services entitle Subscriber and its Authorized Collaborators to remotely access the SaaS Software that is hosted and operated on Mestrelab’s Server, Subscriber is not entitled or permitted to download or otherwise obtain a copy of the SaaS Software. The Software may need to be customised and configured to ensure is optimal operation to fulfil the end user requirements. This customisation and configuration can be carried out, upon request by the end user and for a fee, by the Mestrelab Customer Service Team. The Mestrelab Customer Services will configure and customise the Software to the best of its ability and based on its understanding of the end user requirement, but no guarantees are offered that the configured Software will fulfil this requirement.  Mestrelab and/or its subcontractors shall provide such SaaS Services 24 hours, seven days a week, provided, however, that from time to time, Mestrelab or its subcontractors may perform scheduled or unscheduled maintenance as may be necessary to maintain the proper operation of the SaaS Software, and access to such SaaS Software by Subscriber may be impaired or interrupted while such maintenance is being performed. Mestrelab may conduct scheduled maintenance between the hours of 8 a.m. and 10 a.m. CET, or such similar time period as Mestrelab may from time-to-time substitute by providing notice to Subscriber (including, but not limited to, by sending an email to Subscriber, or to all subscribers).
    2. Registered Users. Using the functionality of the SaaS Software and the administrative account tools provided therein, Subscriber may register with the SaaS Software named employees and individual consultants or contractors (who are natural persons) of Subscriber and its Authorized Collaborators as Registered Users. Each Registered User shall login to the SaaS Software using the unique login and password associated with such Registered User. Subscriber and its Authorized Collaborators shall not permit any person to use a Registered User’s login and password to login and access the SaaS Software (other than the Registered User associated with such login and password). As further described in Section 4.3, if the aggregate number of Registered Users of Subscriber and its Authorized Collaborators exceeds the then current Authorized Number of Users, then Subscriber shall pay Mestrelab for the purchase of additional licenses for the excess additional Registered Users, which shall correspondingly increase the Authorized Number of Users. Subscriber may replace an existing Registered User with a new Registered User without increasing the aggregate number of Registered User licenses, provided that the replaced Registered User may not continue to access the SaaS Software after being replaced and further provided that such replaced Registered User may not in the future replace another Registered User and may only be restored as a Registered User through Subscriber’s purchase of a new license for such Registered User as described in Section 4.3.
    3. Authorized Collaborators. Using the functionality of the SaaS Software and the administrative account tools provided therein, Subscriber may authorize a third party with whom Subscriber is working or collaborating with to access the SaaS Software as an “Authorized Collaborator” of Subscriber hereunder (each an “Authorized Collaborator”) in order that Subscriber may better collaborate with such Authorized Collaborator. Mestrelab reserves the right to check that the Authorized Collaborators and their Registered Users are not in breach of the licensing and pricing conditions of the Subscriber. Subscriber acknowledges that Authorized Collaborators and their Registered Users shall have access and may contribute to Subscriber Content. For purposes of clarity, an Authorized Collaborator and its Registered Users may be Authorized Collaborators and Registered Users of one or more other subscribers of Mestrelab, in which case the Authorized Collaborator and its Registered Users will have separate and unique logins for those other subscriber accounts. When an Authorized Collaborator and its Registered Users are logged into the SaaS Software under a different subscriber’s account, they will not have access to Subscriber Content through the SaaS Software; and when they are logged in to Subscriber’s account, they will not have access to any other subscriber’s content through the SaaS Software. Subscriber acknowledges that while such an Authorized Collaborator and its Registered Users are logged into the SaaS Software under logins and passwords associated with a different subscriber’s account (i.e., not Subscriber’s account) where they are acting as authorized collaborators and registered users of such different subscriber, then the Authorized Collaborator’s and its Registered Users’ use of the SaaS Software shall not be governed by this Agreement (but rather by Mestrelab’s agreement with such other subscriber).
    4. Subscriber Responsibilities and Obligations. Subscriber and its Authorized Collaborators shall be solely responsible, at its sole cost and expense, for establishing, maintaining, and operating their connection to the Internet (the speed of which may have a significant impact on the responsiveness of the SaaS Service), including all access lines, all Internet service provider connection charges, and any long distance telephone charges. Subscriber shall be responsible for the actions and omissions of all its Authorized Collaborators and the Registered Users of Subscriber and its Authorized Collaborators with respect to their use of the SaaS Software and SaaS Services.
    5. Use of Mbook API
      1. The Subscriber will require its Registered Users to comply with (and not knowingly enable them to violate) applicable law, regulation, and the Terms.
      2. The subscriber and the Registered users will only access (or attempt to access) the Mbook API by the means described in the documentation of that API. If Mestrelab assigns you developer credentials (e.g. client IDs), you must use them with the applicable APIs. You will not misrepresent or mask either your identity or your API Client’s identity when using the APIs or developer accounts.
      3. The Terms are non-exclusive. You acknowledge that Mestrelab may develop products or services that may compete with the API Clients or any other products or services.
      4. Mestrelab sets and enforces limits on your use of the API (e.g. limiting the number of API requests that you may make or the number of users you may serve. You agree to, and will not attempt to circumvent, such limitations documented with each API. If you would like to use any API beyond these limits, you must obtain Mestrelab express consent so using the Mbook API without an API license or performing more request per unit of time than defined in your purchasing conditions will also lead to a revocation of your license.
      5. When using the Mbook API, you may not (or allow those acting on your behalf to):
        • Sublicense an API for use by a third party. Consequently, you will not create an API Client that functions substantially the same as the APIs and offer it for use by third parties.
        • Perform an action with the intent of introducing to Mestrelab products and services any viruses, worms, defects, Trojan horses, malware, or any items of a destructive nature.
        • Defame, abuse, harass, stalk, or threaten others.
        • Interfere with or disrupt the API or the servers or networks providing the API.
        • Reverse engineer or attempt to extract the source code from any API or any related software.
        • Use the APIs for any activities where the use or failure of the APIs could lead to death, personal injury, or environmental damage.
        • Remove, obscure, or alter any Mestrelab terms of service or any links to or notices of those terms.
    6. No Modification, Reverse Engineering, etc. Subscriber and its Authorized Collaborators and their respective Registered Users shall not
      1. copy, modify, or create derivative work of the SaaS Software or SaaS Services (other than the one granted by the use of Mbook API) or
      2. access, attempt to access, or otherwise interfere with the Mestrelab Servers, SaaS Software or SaaS Services (other than to access the functionality of the SaaS Software and SaaS Services in accordance with the terms of this Agreement).
    7. Security. As part of the SaaS Services, Mestrelab (or its subcontractors as applicable) shall use good faith efforts to implement security measures (such as password protection and encryption) and maintain such other safeguards which are reasonably intended to prevent the destruction, loss, interception, or alteration of Subscriber Content by unauthorized persons and which are consistent with current commercial practices in the industry. The parties expressly recognize that, although Mestrelab shall take such reasonable steps, or cause such reasonable steps to be taken, to prevent security breaches, it is impossible to maintain flawless security. Subscriber and its Registered Users will not attempt to disable, modify or circumvent any security safeguard adopted by Mestrelab.
    8. Training. Subscriber may engage Mestrelab to provide training pursuant to a separate written agreement.
    9. Technical Support. Mestrelab shall provide reasonable technical support via email during its normal business hours. Technical support questions and requests should be addressed to support@mestrelab.com
  3. Term and Termination.
    1. Term. Subject to earlier termination as described in Section 3.2, and unless otherwise agreed in writing by the parties, this Agreement shall commence on the Effective Date and continue for one year (such period being referred to as the “Initial Term”). Thereafter, this Agreement shall automatically renew for successive renewal terms of one year each (each a “Renewal Term,” and, together with the Initial Term, the “Term”), unless either (a) Subscriber notifies Mestrelab of its desire not to renew at least thirty (30) days prior to the expiration of the then current Initial Term of Renewal Term or (b) Mestrelab notifies Subscriber of its desire not to renew at least thirty (30) days prior to the expiration of the Initial Term or Renewal Term then in effect.
    2. Termination. This Agreement may be terminated prior to the expiration of its Term as follows:
      1. By Subscriber for any or no reason upon ten (10) days’ written notice to Mestrelab, but Mestrelab shall not have any obligation to provide any refund, including for fees paid to Mestrelab in advance by Subscriber;
      2. By Mestrelab, if Subscriber fails to pay any amount when due and does not amend such breach within ten (10) days of delivery of written notice;
      3. By Mestrelab, if Subscriber has breached any provision of this Agreement and, if such breach is subject to amendment, such breach has remained unamended for at least thirty (30) days following notice thereof (and if not subject to amendment, then upon notice of the breach to Subscriber).
    3. Effects of Termination.
      1. Except as expressly provided herein, upon any expiration or termination of this Agreement, all rights, licenses and obligations of the parties shall immediately cease and terminate and Subscriber and its Authorized Collaborators and their respective Registered Users shall cease to use and access the SaaS Services and SaaS Software. Subscriber shall pay Mestrelab in full any remaining unpaid amounts owed to Mestrelab relating to the Subscription.
      2. Subject to Subscriber paying Mestrelab all unpaid amounts owed, Subscriber shall be entitled to obtain a copy of the Subscriber Content, at Subscriber’s reasonable discretion, in hard copy or in electronic form. Subscriber shall contact Mestrelab and make arrangements to retrieve the Subscriber Content no later than sixty (60) days following termination of the Agreement. Such retrieval may, at Subscriber’s reasonable discretion, be in hard copy or in electronic form. Mestrelab shall not be responsible for storing or maintaining any Subscriber Content not retrieved within six (6) months following termination of this Agreement. Any Subscriber Content created during the evaluation period will be made available to Subscriber upon request during a period of 45 days after the evaluation has ended at the maximum.
      3. Notwithstanding the foregoing, the provisions of Sections 2.5, 3.3, 4, 5, 6, 7, 8 and 9.6 shall survive the termination of this Agreement in accordance with their terms.
  4. Subscription Fees.
    1. Trial. Subscriber may obtain a free of cost evaluation version of the SaaS Software for a period of 45 days. The use of the evaluation version is subject to the terms and conditions of this SaaS Account Agreement. After expiry of the trial period, Subscriber’s and Authorized Collaborators’ access to the SaaS Software and SaaS Services is contingent upon Subscriber’s payment to Mestrelab of the relevant subscription fees (the “Subscription Fees”).
    2. Initial Subscription Term. The Subscriber shall pay Mestrelab the Subscription Fee specified in the applicable Quote for the Initial Term for a subscription to access to the SaaS Software on or prior to the Effective Date (or, for SaaS Software modules subsequently added by Subscriber to its subscription, prior to the start date specified in the applicable Quote).
    3. Renewal Terms. Mestrelab will charge Subscriber at commencement of each Renewal Term for the then current Subscription Fees (which may be greater or less than the previous Term) for the upcoming Renewal Term. Unless Subscriber notifies Mestrelab in writing that it is cancelling its subscription prior to commencement of the Renewal Term, Subscriber shall be obligated to pay Mestrelab for the entire renewal Subscription Fee for any Renewal Term that has commenced, irrespective of the level of Subscriber’s actual or expected use of the SaaS Software during such Renewal Term.
    4. Additional Registered User Licenses. If Subscriber desires to add additional Registered Users in excess of the then current Authorized Number of Users, then Subscriber may purchase an additional Registered User license for each Registered User in excess of the Authorized Number of Users (and thereby increase the Authorized Number of Users by such number) by paying Mestrelab the then current per Registered User Subscription Fee (pro-rated for any partial Term based on when the additional Registered Users are registered) for each additional Registered User license. Mestrelab may from time to time during each Initial Term and Renewal audit the number of Registered Users and if Mestrelab discovers that the number of Registered Users of Subscriber and its Authorized Collaborators exceeds the then Authorized Number of Users, then Mestrelab shall invoice Subscriber and Subscriber shall pay Mestrelab the applicable Subscription Fees for such additional Registered Users (pro-rated for any partial Term based on when the additional Registered Users were registered).
    5. Payment Terms. All payments shall be made in local currency and be on other terms agreed directly with Mestrelab.
  5. Ownership, Intellectual Property Rights and Nondisclosure.
    1. Mestrelab and its licensors are the sole owners of the SaaS Software and SaaS Services and of all copyright, trade secret, patent, trademark and other intellectual property rights therein and thereto. This Agreement does not provide Subscriber with any rights to the SaaS Software, the SaaS Services or any copies thereof except as expressly set forth herein. As between Subscriber and Mestrelab, Subscriber is the sole owner of the Subscriber Content and all intellectual property right therein and thereto, and this Agreement does not provide Mestrelab with any rights to the Subscriber Content except as expressly set forth herein.
    2. Subscriber shall take all reasonable steps to ensure that no unauthorized persons have access to the SaaS Software or SaaS Services using logins and passwords issued to Subscriber or its Authorized Collaborators or Registered Users, and to ensure that no persons authorized to have such access shall take any action which would be in violation of this Agreement if taken by Subscriber. Subscriber shall promptly report to Mestrelab any actual or suspected violation of this Section 5, and shall take further steps as may reasonably be requested by Mestrelab to prevent or remedy any such violation.
    3. Confidentiality Obligations.
      1. Confidential Information. From time to time, either party (the “Disclosing Party”) may disclose or make available to the other party (the “Receiving Party”), whether orally or in physical or electronic form, confidential or proprietary information concerning the Disclosing Party and/or its business, products, customers, services, policyholders and/or claimants, including but not limited to information and/or documents concerning; (1) financial information, strategic business plans, policies and/or methods; (2) marketing, claims, sales, underwriting strategy, and decision making processes; (3) pricing and/or profit information; (4) lists of actual or prospective customers; (5) proprietary and/or confidential intellectual property; and (6) intellectual property of third parties licensed to the disclosing party (collectively, “Confidential Information”) in connection with this Agreement. Each party agrees that during the Term and thereafter: (i) it will use Confidential Information belonging to the Disclosing Party solely for the purpose(s) of this Agreement; and (ii) it will take reasonable precautions, but no less than it would take to prevent the disclosure of its own similar Confidential Information, to ensure that it does not disclose Confidential Information belonging to the Disclosing Party to any third party (other than the Receiving Party’s employees, contractors, and/or professional advisors on a need-to-know basis who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without first obtaining the Disclosing Party’s written consent. Upon request by the Disclosing Party, the Receiving Party will return all copies of any Confidential Information to the Disclosing Party. For Confidential Information that does not constitute trade secrets under applicable law, these confidentiality obligations will expire three (3) years after the termination or expiration of this Agreement, and for Confidential Information that constitutes trade secrets shall survive until such Confidential Information ceases to be a trade secret. The Receiving Party will be responsible for any breach of this Section by its employees, representatives, and agents. Non-public information regarding the SaaS Software and the SaaS Services (including but not limited to their performance, operation, and data formats) and the Documentation are the Confidential Information of Mestrelab. The terms of this Agreement are the Confidential Information of both parties, but may be disclosed by either party with its advisors and potential investors or acquirers who are subject to confidentiality obligations or to enforce its terms.
      2. Subscriber Content. Mestrelab acknowledges and agrees that the Subscriber Content is the Confidential Information of Subscriber (subject to Section 5.3(c)) and is therefore subject to the restrictions on disclosure and use set forth in Section 5.3(a) above. Notwithstanding the foregoing, Mestrelab may use Subscriber Content or other Subscriber Confidential Information to (i) provide the SaaS Services to Subscriber as contemplated herein, (ii) monitor Subscriber’s and its Authorized Collaborators’ and Registered Users’ use of the SaaS Services for security purposes, (iii) enforce the terms of this Agreement, and (iv) to study usage of the SaaS Services, including to aggregate with other subscribers’ usage data, in order to identify patterns of use and/or improve the SaaS Services and SaaS Software and to further develop other software applications offered by Mestrelab, including to train algorithms.
      3. Exclusions. For purposes hereof, “Confidential Information” will not include any information that the Receiving Party can establish by convincing written evidence: (i) was independently developed by the Receiving Party without use of or reference to any Confidential Information belonging to the Disclosing Party; (ii) was acquired by the Receiving Party from a third party having the legal right to furnish same to the Receiving Party; or (iii) was at the time in question (whether at disclosure or thereafter) generally known by or available to the public (through no fault of the Receiving Party).
      4. Required Disclosures. These confidentiality obligations will not restrict any disclosure required by order of a court or any government agency, provided that the Receiving Party gives prompt notice to the Disclosing Party of any such order and reasonably cooperates with the Disclosing Party at the Disclosing Party’s request and expense to resist such order or to obtain a protective order.
      5. Equitable Relief. Because unauthorized access, use, disclosure or transfer of the Confidential Information or other intellectual property of either party in violation of this Section 5 will diminish substantially the value of such Confidential Information or other intellectual property and irreparably harm the owner of such Confidential Information or intellectual property, if either party breaches the provisions of this Section 5, the other party shall be entitled to seek equitable relief, including a restraining order, preliminary and permanent injunctive relief, specific performance and any other relief that may be available from any court, without providing a bond or other security, in addition to any other remedy to which such party may be entitled at law or in equity.
  6. Data Privacy.
    1. Subscriber’s contact information: Mestrelab will process the Subscriber’s personal data (i.e. name, surname, company, email, address, payment details) for several purposes depending on the Subscriber’s interaction with Mestrelab: If the Subscriber has registered for a free trial or to make a purchase, the Subscriber’s data will be used to set up and maintain the Subscriber’s user account, for compliance screenings (i.e. to satisfy export control requirements) and, in case of a purchase, to invoice the Subscriber and administrate that sales case. Mestrelab will use the data provided by the Subscriber via the website, email or any other contact channel to follow up on any request submitted by the Subscriber as well as to inform the Subscriber on Mestrelab’s products and services related to any purchase made by the Subscriber. These activities are based on either the performance of Mestrelabs’s contractual relationship with the Subscriber (article 6 (1) b GDPR), on Mestrelab’s legitimate interest (article 6 (1) f GDPR) or the fulfilment of a legal obligation (article 6 (1) c GDPR). Mestrelab may engage in general marketing communication with the Subscriber based on the Subscriber’s prior consent. Mestrelab does not use the Subscriber’s personal data for automated decision making or profiling. The provision of the the Subscriber’s personal information as required by Mestrelab is necessary to enter and perform the contract with Mestrelab and/or to manage any requests submitted by the Subscriber. Failure to provide such necessary information may lead to Mestrelab not being able to offer the products and/or services required by the Subscriber.
    2. Personal data processed in the SaaS Software. Subscriber acknowledges that Mestrelab, to provide the services to Subscriber, may have access to limited personal information related to Registered Users. The Parties will enter into the Data Processing Agreement as set out in Exhibit A to this Agreement.Please contact privacy@mestrelab.com in the case of any privacy-related enquiry.
  7. Limited Warranty; Limitations of Liability.
    1. Mestrelab warrants to Subscriber that the SaaS Software shall perform substantially in accordance with the Documentation, and taking into account that no guarantee exists regarding the customisation and/or configuration carried out by Mestrelab upon customer request. . Mestrelab’s sole obligation, and Subscriber’s sole remedy, with respect to any breach of this limited warranty of performance shall be for Mestrelab to correct such nonconformance or provide reasonable alternative functionality at Mestrelab’s sole cost and expense.
    2. Except as stated above, Mestrelab disclaims all other warranties, both express and implied, with respect to the SaaS Software and SaaS Services, including, but not limited to, all implied warranties of merchantability and fitness for a particular purpose (irrespective of any previous course of dealing between the parties or custom or usage of trade), non-infringement, or that the SaaS Software or SaaS Services will be uninterrupted or error free.
    3. Mestrelab’s liability for damages to Subscriber for any claims whatsoever, and for all claims in the aggregate, regardless of the form of any claim or action, shall not exceed the Subscription Fees paid under this agreement for the initial or renewal term in which the most recent claim arose.
    4. Mestrelab shall in no event be liable for any indirect, special, incidental, exemplary, punitive or consequential damages arising out of or in connection with the use or performance of the SaaS Software or SaaS Services, whether or not Mestrelab has been made aware of the possibility of such damages, including, but not limited to, any damages resulting from loss of data or content or lost profits.
    5. Subscriber acknowledges and agrees that Mestrelab only grants the rights under this Agreement in reliance on limitations of liability and disclaimers of warranty set forth in Sections 7.2, 7.3 and 7.4 above and that these provisions are essential terms of this Agreement.
  8. Indemnification.
    1. Mestrelab shall defend, indemnify, and hold harmless Subscriber and its officers, directors, employees, and shareholders from and against any and all any damages, penalties, judgments and reasonable related costs and expenses, including but not limited to reasonable legal fees and expenses, (“Damages”) arising out of any third party claim or allegation (a “Claim”) that Subscriber’s use or access of the SaaS Software or SaaS Services in accordance with the terms of this Agreement infringes the patent, copyright or other intellectual property right of any third party, except to the extent (a) due to any Subscriber Content or specific materials that Mestrelab uses or uploads into the SaaS Software or (b) such claim is based on Subscriber’s use of such the SaaS Services or the SaaS Software in combination with other services and products not supplied by Mestrelab and not required by the Documentation.
    2. Subscriber shall defend, indemnify, and hold harmless Mestrelab, and its respective officers, directors, employees, and shareholders from and against any and all Damages, including but not limited to reasonable legal fees and expenses, arising out of any third party Claim that any Subscriber Content posted or loaded into the SaaS Software or SaaS Services by Subscriber or its Authorized Collaborators or Registered Users infringes the patent, copyright or other intellectual property right of any third party or violates any laws, including privacy laws.
    3. If Subscriber or Mestrelab intends to claim indemnification hereunder (for itself or for another Indemnitee) with respect to any Damages arising under a Claim, then Subscriber or Mestrelab (the “Indemnified Party”) shall promptly notify the other party (the “Indemnifying Party”) of any Claim in respect of which the Indemnified Party (whether for itself or for one of the persons entitled to indemnification under Section 8.1 or 8.2) intends to claim such indemnification reasonably promptly after the Indemnified Party is aware thereof, and the Indemnifying Party shall assume the defense of any related third party action, suit or proceeding with counsel of the Indemnifying Party’s choice. The indemnity agreement in this Section 8 shall not apply to amounts paid in settlement of any claim, loss, damage or expense if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld or delayed unreasonably. The failure of the Indemnified Party to deliver notice to the Indemnifying Party within a reasonable time after the Indemnified Party becomes aware of any such matter, if prejudicial to Indemnifying Party’s ability to defend such action, shall relieve the Indemnifying Party of any liability under this Section 8 with respect to such Claim. The Indemnified Party and all indemnitees shall cooperate fully with the Indemnifying Party and its legal representatives in the investigation of any matter covered by this indemnification.
    4. Should the SaaS Software or SaaS Services become, or in Mestrelab’s opinion, be likely to become the subject of a claim or an injunction preventing its use as contemplated herein, Mestrelab may, at its option (i) procure for Subscriber the right to continue to access the SaaS Software or SaaS Services hereunder, (ii) replace or modify the SaaS Software or SaaS Services so that it becomes non-infringing, or, if Mestrelab determines, in its sole discretion, that (i) and (ii) are not commercially practical for Mestrelab, then (iii) Mestrelab may terminate this Agreement and arrange to refund to Subscriber a pro-rated amount of the Subscription Fees paid in advance for the then current Initial Term or Renewal Term based on the remaining portion of the then current Term for which such Subscription Fees were paid.
    5. This Section 8 states the entire liability of Mestrelab with respect to infringement of third party intellectual property rights by the SaaS Services or the SaaS Software or any part thereof or by its operation.
  9. Compliance with Laws; Export Control
    1. Subscriber agrees to comply with all applicable laws with respect to Subscriber’s use of the SaaS Software. Subscriber acknowledges and agrees that the SaaS Software, technical data and/or services (“Items”), are subject to export control, customs, economic sanctions, and anti-boycott laws, regulations, rules, and associated executive orders enacted, issued, entered, promulgated, or enforced by the European Union, the United States, the United Nations, the Organization for Security and Co-operation in Europe (the “OSCE”), or the country where Subscriber resides (provided such applicable laws or regulations of the Territory do not conflict with applicable regulations of the European Union or the United States) (each individually, an “Export Control Law” and, collectively, the “Export Control Laws”). Subscriber will comply with all applicable Export Control Laws and not provide any Items to anyone in a country or other destination that is subject to a United States Government export embargo (currently Cuba, Iran, North Korea, Sudan, Syria and the Crimea Region) (an “Embargoed Destination”), to a representative of an Embargoed Destination, or to persons or for purposes prohibited under any Export Control Law. Prohibited end-uses include the research on or development of chemical, biological or nuclear weapons, unmanned air vehicles or missiles, or nuclear explosive or fuel cycle activities. In addition to any other remedy it may have, Mestrelab may terminate this Agreement immediately and without notice, and cancel the download, activation and/or provision of any maintenance or other customer service involving any Item if (a) Mestrelab has not received all export-related documentation requested by Mestrelab or (b) Mestrelab believes that such activity may violate any Export Control Law or Mestrelab’s own compliance policies. If Subscriber accesses the Mestrelab Server, or purchases, downloads, or activates Items from the Mestrelab Server, Subscriber represents that it is not in any Embargoed Destination, acting for anyone in an Embargoed Destination, and that it is not a person or entity (or owned by one or more entities) that has/have been sanctioned or otherwise listed on a prohibited persons lists issued by the United States, the United Nations, the European Union, the OSCE, the United Kingdom, Japan, Australia or Switzerland. Subscriber shall indemnify Mestrelab for all losses, costs, claims, damages and expenses (including attorneys’ fees and expenses) arising from its violation or alleged violation of any applicable federal, state or local law, including without limitation, any Export Control Law.
  10. Miscellaneous.
    1. Trademark and Names. This Agreement does not grant either party the right to use any trademark, trade name or logo of the other party in any advertising or promotional material. If mutually agreed by Subscriber and Mestrelab, Mestrelab may identify Subscriber as a customer of Mestrelab, including as a subscriber of the SaaS Software, in promotional materials and published lists of Mestrelab’s customers and/or issue a press release describing this subscription including a quote from Subscriber.
    2. Entire Agreement. This Agreement constitutes the entire agreement between Mestrelab and Subscriber with respect to the subject matter hereof, and supersedes any prior agreement between the parties with respect to the subject matter hereof. No Addendum, waiver, consent, modification, amendment or change of the terms of this Agreement shall bind either party unless in writing and signed by duly authorized officers of Subscriber and Mestrelab. No terms and conditions in any purchase order issued by Subscriber under this Agreement, including in response to a Quote, shall apply and any such purchase order terms and conditions shall be superseded by the terms of this Agreement, except that, as applicable, such purchase order shall evidence Subscriber’s acceptance of the applicable Quote, including Subscriber’s election of any options or choices expressly contemplated by such Quote (such as number of Authorized Number of Users).
    3. Severability. In the event that any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable because it is invalid or in conflict with any law of any relevant jurisdiction, the validity of the remaining provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular provisions held to be unenforceable.
    4. Assignments. Neither this Agreement nor any rights, obligations or subscriptions granted hereunder may be assigned or delegated by either party, including but not limited to by operation of law, without the prior written consent of the other party, which shall not unreasonably be withheld, except that either party may assign this Agreement to a successor to its business in connection with a merger or sale of all or substantially all of its assets. This Agreement shall inure to the benefit of the parties and their permitted successors and assigns.
    5. Notices. Any notice by a party under this Agreement shall be in writing and either personally delivered or sent via reputable overnight courier (such as Federal Express) or certified mail, postage prepaid and return receipt requested addressed to the other party as follows:
      To Mestrelab:
      Mestrelab Research SL
      r/Feliciano Barrera 9B-Baixo
      15706 Santiago de Compostela
      A Coruña – SPAIN
      To Subscriber: to the address on the signature page of this Agreement;
      or, in each case, such other address of which either party may from time to time notify the other in accordance with this Section 10.5. All notices shall be in English and shall be deemed effective on the date of personal delivery, one business day after deposit with an overnight courier, or five (5) business days after deposit in the mail.
    6. Governing Law; Dispute Resolution. The validity, construction and interpretation of this Agreement, and the rights and duties of the parties, shall be governed by and construed in accordance with the laws of the local jurisdiction of the applicable Mestrelab entity listed on Page 1 of this agreement, without giving effect to the conflict of law provisions thereof, and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods. Other than as necessary to enforce any final judgment, award or determination or to obtain a preliminary injunction or other equitable relief to safeguard a party’s intellectual property or confidential information, any action brought pursuant to or in connection with this Agreement shall be brought only in the state or federal courts within the local jurisdiction of the applicable Mestrelab entity listed on Page 1 of this Agreement without regard to its conflict of law provisions and both parties submit to the personal jurisdiction, and waive any objections to venue, of such courts.
    7. No Waiver. The waiver by either party of a breach of a default of any provision of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have thereunder, operate as a waiver of any right, power or privilege by such party.
    8. Section Headings. Captions and section headings hereof are for reference purposes only and shall not control or alter the meaning of this Agreement as set forth in the text.
    9. Force Majeure. In the event that either party is unable to perform any of its obligations under this Agreement because of causes beyond its reasonable control or because of any Act of God, accident to equipment or machinery; any fire, flood, hurricane, tornado, storm or other weather condition; any war, act of war, act of public enemy, terrorist act, sabotage, riot, civil disorder, act or decree of any governmental body; any failure of communications lines, transportation, light, electricity or power; any earthquake, civil disturbance, commotion, lockout, strike or other labor or industrial disturbance; or any illness, epidemic, quarantine, death or any other natural or artificial disaster the party who has been so affected shall immediately give notice to the other party and shall do everything reasonably possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended and performance times shall be considered extended for a period of time equivalent to the time lost because of any such delay. Nothing provided herein shall excuse the delay of any payment that is validly due by Subscriber to Mestrelab.

 

The Subscriber agrees to be bound by this End User License Agreement and evidences so by pressing the ‘Agree’ button.

 

Exhibit A

Data Processing Agreement

Mestrelab Research SL

This Data Processing Agreement (“Addendum”) forms part of the MBook SaaS Account Agreement (“Agreement”) between Mestrelab and the Subscriber for the provision of the SaaS Software (“SaaS Software”).

In this Addendum Mestrelab is also referred to as “the processor” and Subscriber is also referred to as “the controller”.

In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Agreement. In the event of any conflict or inconsistency between this Addendum and the Agreement in effect between the Subscriber and Mestrelab, this Addendum shall prevail. In the event of any conflict or inconsistency between this Addendum and the Model Clauses under Section 1.4, the Model Clauses shall prevail, except with respect to provisions of this Addendum that expressly clarify a specific provision of the Model Clauses.

  1. Definitions: Capitalized terms not defined herein will have the meanings given to them in the Agreement. In this Addendum, the following terms shall have the following meanings:
    1. controller“, “processor“, “data subject“, “personal data” and “processing” (and “process“) shall have the meanings given in the Applicable Data Protection Law;
    2. SaaS Software” shall have the meaning assigned under the Agreement;
    3. “Registered User” shall have the meaning assigned under the Agreement;
    4. Applicable Data Protection Law” shall mean: Regulation 2016/679 of the European Parliament and of the Council (“General Data Protection Regulation” or “GDPR”), as well as laws implementing and supplementing the GDPR. Outside of the scope of the Regulation referred to above, “Applicable Data Protection Law” shall mean the data protection laws of the country in which the relevant Subscriber entity (controller) is domiciled or where the Subscriber’s end users are located;
  2. Relationship of the parties: Subscriber (the controller) appoints Mestrelab as a processor to process the personal data described in Annex A (the “Data“). Subscriber shall verify that the processing operations for the provision of the SaaS Software under the Agreement – including any international transfer – are in compliance with the Applicable Data Protection Law and notify Mestrelab about any potential noncompliance before the processing starts.
  3. Governance. Mestrelab acts as a processor and Subscriber and those entities that it permits to use the SaaS Software act as controllers under the Addendum. Subscriber acts as a single point of contact and is solely responsible for obtaining any relevant authorizations, consents and permissions for the processing of personal data in accordance with this Addendum, including, where applicable approval by controllers to use Mestrelab as a Processor. Where authorizations, consent, instructions or permissions are provided by Subscriber these are provided not only on behalf of the Subscriber but also on behalf of any other controller using the SaaS Software. Where Mestrelab informs or gives notice to Subscriber, such information or notice is deemed received by those controllers permitted by Subscriber to use the SaaS Software and it is Subscriber’s responsibility to forward such information and notices to the relevant Controllers.
  4. Purpose limitation: Mestrelab shall process the Data as a processor for the purpose of providing the SaaS Software according to the purposes described in Annex A and strictly in accordance with the documented instructions given by the Subscriber to Mestrelab (the “Permitted Purpose“), except where otherwise required by any law applicable to Mestrelab. In such a case, Mestrelab will inform Subscriber of such legal requirement before processing, unless the law prohibits Mestrelab to inform Subscriber on important grounds of public interest. The Agreement (including this Addendum) constitutes the documented initial instructions. Mestrelab will use reasonable efforts to follow any other Subscriber instructions, as long as they are required by Data Protection Law, technically feasible and do not require changes to the SaaS Software. If any of the beforementioned exceptions apply, or Mestrelab otherwise cannot comply with an instruction or is of the opinion that an instruction infringes Data Protection Law, Mestrelab will immediately notify Subscriber (email permitted). Subscriber acknowledges that Mestrelab collects and processes aggregated system performance data to ensure proper performance of the services: such data sets may contain personal related information such as usernames and any personal related information contained in log files. For the sake of clarity, data used on development and test systems do not contain personal data.
  5. International transfers: Within the scope of GDPR, personal data are not transferred outside of the European Economic Area (“EEA“). In the event personal data need to be transferred outside of the EEA or the defined country of storage and processing as defined in the Agreement, Mestrelab will (i) inform Subscriber in advance; and (ii) take such measures as are necessary to ensure the transfer is in compliance with the Applicable Data Protection Law. Such measures may include (without limitation) transferring the Data to a recipient in a country that the European Commission has decided provides adequate protection for personal data, to a recipient that has achieved binding corporate rules authorisation in accordance with Applicable Data Protection Law, to a recipient that has executed the standard contractual clauses (“Model Clauses”) adopted or approved by the European Commission, as the case may be. In the case Data will be subject to an international transfer as described in this section, the Model Clauses Controller to Processor will be automatically incorporated in this Addendum. A copy of the Model Clauses (notified under the document C(2010) 593) is available at the following link: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32010D0087. In case the data exporter under the clauses is located outside of the EU/EEA, the term “member state” under the Model Clauses shall mean “country where the data exporter is located”.
  6. Confidentiality of processing: Mestrelab shall ensure that any person that it authorises to process the Data (including Mestrelab’s staff, agents and subcontractors) (an “Authorised Person“) shall be subject to an appropriate duty of confidentiality (whether a contractual duty or a statutory duty) and shall not permit any person to process the Data who is not under such a duty of confidentiality. Mestrelab shall ensure that all Authorised Persons process the Data only as necessary for the Permitted Purpose.
  7. Security: Mestrelab shall implement appropriate technical and organisational measures to protect the Data (i) from accidental or unlawful destruction, and (ii) loss, alteration, unauthorised disclosure of, or access to the Data (a “Security Incident“). Such measures shall have regard to the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons. Such measures shall include, as appropriate:
    1. the pseudonymisation and encryption of personal data;
    2. the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
    3. the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;
    4. a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
  8. Subprocessing: Subscriber acknowledges and agrees that Data Processor may engage subprocessors to process personal data in connection with the services pursuant to the Agreement, subject to the requirements in this section. Mestrelab shall enter into a binding agreement with each subprocessor before any transfer of personal data to such subprocessor. Such agreement shall impose data protection terms that protect the personal data at the same standard provided for by this Addendum, especially regarding confidentiality, data protection and information security. Mestrelab shall remain liable for any breach of this Addendum if and to the extent that it is caused by an act, error or omission of its subprocessor. Mestrelab may chance a subprocessor at its discretion, provided that: (a) Mestrelab will inform Subscriber in advance by e-mail of any intended additions or replacements to the list of subprocessors including name, address and role of the new subprocessor; and (b) Subscriber may object to such changes. If Subscriber refuses to consent to Mestrelab’s appointment of a third party subprocessor on reasonable grounds relating to the protection of the data, then either Mestrelab will not appoint the subprocessor to the services rendered to Subscriber, or, if that is not possible Subscriber may elect to suspend or terminate the Agreement. Any termination under this Section shall be deemed to be without fault by either party; Subscriber shall be entitled to a refund on a pro rata basis of any subscription charges paid in advance. Mestrelab may replace a Subprocessor without advance notice where the reason for the change is outside of Mestrelab’s reasonable control and prompt replacement is required for security or other urgent reasons. In this case, Mestrelab will inform Subscriber of the replacement Subprocessor as soon as possible following its appointment. A list of subprocessors as at the date of this Addendum is attached as Annex B.
  9. Cooperation and data subjects’ rights: At Subscriber’s request, Mestrelab will reasonably cooperate with Subscriber in dealing with requests from Data Subjects or regulatory authorities regarding Mestrelab’s processing of Personal Data or any Security Incident referred to in Section 11 below. Mestrelab shall notify the Subscriber as soon as reasonably practical about any request it has received from a data subject in relation to the Personal Data processing, without itself responding to such request without Subscriber’s further instructions, if applicable. Mestrelab shall provide functionality that supports Subscriber’s ability to correct or remove Personal Data from the SaaS Software, or restrict its processing in line with Data Protection Law. Where such functionality is not provided, Mestrelab will correct or remove any Personal Data, or restrict its processing, in accordance with the Subscriber’s instruction and Data Protection Law.
  10. Data Protection Impact Assessment: If Mestrelab believes or becomes aware that its processing of the Data under GDPR is likely to result in a high risk to the data protection rights and freedoms of data subjects, it shall promptly inform Subscriber and provide Subscriber with all such reasonable and timely assistance as Subscriber may require in order to conduct a data protection impact assessment and, if necessary, consult with its relevant data protection authority.
  11. Security incidents: Upon becoming aware of a Security Incident, Mestrelab shall inform Subscriber without undue delay and shall provide all such timely information and cooperation as Subscriber may require in order for Subscriber to fulfil its data breach reporting obligations under (and in accordance with the timescales required by) the Applicable Data Protection Law. Mestrelab shall further take all such measures and actions as are necessary to remedy or mitigate the effects of the Security Incident and shall keep Subscriber informed of all developments in connection with the Security Incident.
  12. Audit: Mestrelab shall permit Subscriber (or its appointed third party auditors, (which shall not include any third party auditors who are either a competitor of Mestrelab or not suitably qualified or independent) to audit Mestrelab’s compliance with this Addendum, if: (a) Mestrelab has not provided sufficient evidence of its compliance with the technical and organizational measures or with the terms of this Addendum; (b) a Security Incident has occurred; (c) an audit is formally requested by Subscriber’s data protection authority; or (d) Mandatory Data Protection Law provides Subscriber with a direct audit right and provided that Subscriber shall only audit once in any twelve month period unless mandatory Data Protection Law requires more frequent audits. Subscriber (or its third-party auditors) may enter its premises for the purposes of conducting this audit, provided that Subscriber gives it reasonable prior notice of its intention to audit, conducts its audit during normal business hours, and takes all reasonable measures to prevent unnecessary disruption to Mestrelab’s operations. Document-based audits are preferred.
  13. Deletion or return of Data: Upon termination or expiry of the Agreement, Mestrelab shall (at Subscriber’s election) destroy or return to Subscriber all Data (including all copies of the Data) in its possession or control (including any Data subcontracted to a third party for processing). This requirement shall not apply to the extent that Mestrelab is required any law applicable to Mestrelab to retain some or all of the Data, in which event it shall isolate and protect the Data from any further processing except to the extent required by such law.
  14. No Consideration: Notwithstanding anything in the Agreement and in this Addendum, Mestrelab’s access to Subscriber personal data is not part of the consideration exchanged by the parties in respect of the Agreement.
  15. Indemnity: Each party (the “Indemnifying Party“) shall indemnify the other (the “Indemnified Party“) from and against all loss, cost, harm, expense (including reasonable legal fees), liabilities or damage (“Damage“) suffered or incurred by the Indemnified Party as a result of the Indemnifying Party’s breach of the data protection provisions set out in this Addendum, and provided that: (i) the Indemnified Party gives the Indemnifying Party prompt notice of any circumstances of which it is aware that give rise to an indemnity claim under this Addendum; and (ii) the Indemnified Party takes reasonable steps and actions to mitigate any ongoing Damage it may suffer as a consequence of the Indemnifying Party’s breach.
  16. Liability: Mestrelab is liable for the damage caused by processing where it has not complied with obligations of the Data Protection Law applicable to the processor, or where it has acted outside or contrary to lawful instructions of the Subscriber. Mestrelab is liable to pay administrative fines which result from a breach of the provisions of the Data Protection Law applicable to the processor. Mestrelab shall be exempt from its liability, only if it proves that it’s not responsible for the event giving rise to the breach of the provisions of the Data Protection Law Applicable to Mestrelab.

 

Annex A

Data Processing Description
This Annex A forms part of the Agreement and describes the processing that the processor shall perform on behalf of the controller.

Purposes
The processor will process the personal data on behalf of the controller for the following purposes:

Provision and maintenance of the SaaS platform

Controller
The controller is (please specify briefly the controller’s activities relevant to the processing): the Subscriber who subscribed to the SaaS Software that allows certain users to enter, amend, use, delete or otherwise process personal data. Where the Subscriber allows other companies to also use the SaaS Software, these other companies are considered as controllers to the personal data under their control.

Processor
The processor is (please specify briefly the processor’s activities relevant to the transfer):

Mestrelab provides and maintains the SaaS Software as described in the Agreement.

Data subjects
The personal data to be processed concern the following categories of data subjects:

Registered Users, e.g. Subscriber’s Employees or Subscriber’s Students in the case Subscriber is a university or educational institution.

Categories of data
The personal data to be processed concern the following categories of data (please specify):

first name, last name, address (work), e-mail, phone, organization (company or institution), organizational role, Registered Users access and use of the SaaS Software as resulting from the log files.

Special categories of data (if applicable)

The personal data to be processed concern the following special categories of data (please specify):

Not Applicable

Processing operations
The personal data will be subject to the following basic processing activities (please specify):

  • Hosting and monitoring of the SaaS Software
  • Monitoring Backup & restoration of Subscriber data stored in the SaaS Software
  • Release and development of fixes and upgrades to the SaaS Software
  • Security monitoring, network-based intrusion detection support, penetration testing
  • Support when a Subscriber submits a support ticket because the SaaS Software is not available or not working as expected. Mestelab answers the requests from Subscriber and performs basic troubleshooting, and handles support tickets in a tracking system that is separate from the production instance of the SaaS Software

 

Data Privacy Office Contact Information:

Mestrelab Research SL

r/ Feliciano Barrera 9B-Baixo

15706 Santiago de Compostela

A Coruña – SPAIN

privacy@mestrelab.com

 

Annex B

Approved Subprocessors

Name Processing Location Access to data
AWS IaaS Hosting Platform EU Data Centers Yes
Salesforce Customer Relationship Management Platform EU Data Centers Yes

IMPORTANT – PLEASE READ THESE TERMS CAREFULLY BEFORE CONFIRMING AN ORDER, PAYING THE FEES, INSTALLING, OR USING THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS HEREIN, DO NOT CONFIRM AN ORDER AND DO NOT INSTALL, ACCESS OR USE THE SOFTWARE.

BY CONFIRMING AN ORDER, PAYING FOR OR INSTALLING OR ACCESSING THE SOFTWARE YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT AND THAT YOU AGREE TO ITS TERMS. IF YOU HAVE CONFIRMED AN ORDER OR PAID THE LICENSE FEE ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, AND THAT YOUR USE OF THE SOFTWARE ON BEHALF OF SUCH ENTITY IS GOVERNED BY ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS HEREIN, DO NOT CONFIRM OR PAY AND DO NOT INSTALL, ACCESS OR USE THE SOFTWARE.

MESTRELAB ONLY ACCEPTS ORDERS FOR SOFTWARE SUBSCRIPTIONS ON THE UNDERSTANDING THAT THE CUSTOMER SUBMITTING OR CONFIRMING THE ORDER HAS ACCEPTED THE TERMS OF THIS AGREEMENT AND THAT ANY ADDITIONAL OR CONFLICTING TERMS IN THE ORDER DO NOT APPLY UNLESS SEPARATELY SIGNED BY AN AUTHORIZED REPRESENTATIVE OF MESTRELAB.

Mestrelab Research SL

MnovaWeb SaaS Account Agreement

This MnovaWeb SaaS Account Agreement governs the sale and purchase, and the use of susbcriptions for the use of proprietary Software offered by MESTRELAB RESEARCH, S.L, (“Mestrelab or We/Us/Our”) a company duly incorporated under the laws of Spain and holder of fiscal identification number B15964521.

This agreement together with the “Order” (defined below) is a binding agreement between Subscriber (“You/Your”) and Mestrelab (the “Agreement”). Any additional or conflicting terms in Your request for proposal, or any other written or oral communication are not binding unless separately signed by Mestrelab.

  1. Definitions The below capitalized terms have the meanings set forth below or in the referenced provision. Other capitalized terms used herein are defined as they arise in this Agreement.
    1. Documentation” means
    2. Quote ” means a written quote from Mestrelab specifying the SaaS Software modules that Subscriber may subscribe to and the corresponding Subscription Fees for a subscription to such SaaS Software modules payable to Mestrelab.
    3. Authorized Number of Users ” means the number of Registered Users that Subscriber will be entitled to register pursuant to a purchase order issued or payment made in response to an applicable Quote. The Authorized number of Users will be equal to the number of purchased licenses plus a fifty percent (50%). Regardless the Authorized Number of Users, only as many users as the number of licenses under the subscription shall be allowed to be active and operate concurrently, according to section 5.1.
    4. Documentation ” means the user documentation provided to Subscriber with respect to the use of the SaaS Software, including the online application help accessible from the SaaS Software, as updated from time to time by Mestrelab.
    5. Effective Date” is the date on which Subscriber pays the correspondent fee for the Subscription.
    6. Appointed user” means any user invited to access MnovaWeb by the Manager User, according to the terms and conditions set forth herein.
    7. Manager user” means the individual user appointed by a corporate Customer when registering in the application. This user will be allowed to manage all the Customer corporate information, including subscriptions’ purchases and cancellations, as well as invitations.
    8. Order” means the order submitted by or on behalf of the Subscriber to purchase a license or the request of a trial for the Software, or the receipt of a trial version of the Software in the terms accepted by Mestrelab (by issuing an invoice or any other means of valid acceptance) and/or (ii) the quotation, issued by Mestrelab, and countersigned by the Subscriber (e-signature permitted) and returned to Mestrelab (email permitted) no later than the term established in the quotation.
    9. Registered User ” means an individual (natural person), whether employee, consultant, contractor or other, of Subscriber who has been authorized by Subscriber to access the SaaS Software on behalf of Subscriber and who has been provided a unique user name and password for use when accessing such SaaS Services. Registered users may be Appointed users or Manager users.
    10. SaaS Software ” means the modules of Mestrelab’s proprietary Mnova web software solutions which Subscriber has purchased a Subscription to pursuant to a purchase order in response to a valid Quote.
    11. Subscriber  means the individual or the entity identified in the Order as the purchaser of the subscription, or its authorized users.
    12. Subscriber Content ” means all text, data, graphics, pictures, or other content that Subscriber, or its Registered Users post or upload into the SaaS Software. As set forth in this Agreement, Subscriber Content is the Confidential Information of Subscriber.
    13. Subscription ” has the meaning set forth in Section 2.1 below.
    14. Subscription Fees ” has the meaning set forth in Section 4.
    15. Term ”, “ Initial Term ”, and “ Renewal Term ” each have the meaning set forth in Section 3.1.
  1.  Grant of Subscription License; Subscription Restrictions
    1. SaaS License and Subscription . Subject to the terms and conditions in this Agreement and as specified in the Quote, Mestrelab grants to Subscriber, and Subscriber accepts, a nonexclusive, nontransferable license (the “ Subscription ”), without the right to sublicense, for Registered Users of Subscriber to remotely access and interface with, via the Internet, an executing instance of the SaaS Software that is operating on and from a Mestrelab Server, through the Registered Users’ use of supported and properly configured web browsers, in the manner described in the SaaS Software Documentation (collectively, the “ SaaS Services ”), solely for Subscriber’s benefit. Subscriber acknowledges that while the SaaS Services entitle Subscriber to remotely access the SaaS Software that is hosted and operated on Mestrelab’s Server, Subscriber is not entitled or permitted to download or otherwise obtain a copy of the SaaS Software. Mestrelab and/or its subcontractors shall provide such SaaS Services 24 hours, seven days a week, provided, however, that from time to time, Mestrelab or its subcontractors may perform scheduled or unscheduled maintenance as may be necessary to maintain the proper operation of the SaaS Software, and access to such SaaS Software by Subscriber may be impaired or interrupted while such maintenance is being performed. Mestrelab may conduct scheduled maintenance between the hours of 8 a.m. and 10 a.m. CET, or such similar time period as Mestrelab may from time to time substitute by providing notice to Subscriber (including, but not limited to, by sending an email to Subscriber, or to all subscribers).
    2. Registered Users . Using the functionality of the SaaS Software and the administrative account tool provided therein, the Managing User may register with the SaaS Software Registered users. Each Registered User shall login to the SaaS Software using the unique login and password associated with such Registered User. Subscriber shall not permit any other person to use a Registered User’s login and password to login and access the SaaS Software (other than the Registered User associated with such login and password). As further described in Sections 4.4 and 5.2, if the aggregate number users, considering Managing User and Appointed Users of Subscriber exceeds the then current Authorized Number of Users, then Subscriber shall pay Mestrelab for the purchase of additional licenses allowing the excess additional Registered Users to be appointed, which shall correspondingly increase the Authorized Number of Users. Subscriber may replace an existing Registered User with a new Registered User without increasing the aggregate number of Registered User licenses, provided that the replaced Registered User is discontinued to access the SaaS Software after being replaced and further provided that such replaced Registered User may not in the future replace another Registered User and may only be restored as a Registered User through Subscriber’s purchase of a new license for such Registered User as described in Section 4.4 and 5.2.
    3. Subscriber Responsibilities and Obligations . Subscriber shall be solely responsible, at its sole cost and expense, for establishing, maintaining, and operating their connection to the Internet (the speed of which may have a significant impact on the responsiveness of the SaaS Service), including all access lines, all Internet service provider connection charges, and any long distance telephone charges. Subscriber shall be responsible for the actions and omissions of all its Registered Users of Subscriber with respect to their use of the SaaS Software and SaaS Services.
    4. No Modification, Reverse Engineering, etc. Subscriber and/or its respective Registered Users shall not 
      1. copy, modify, or create derivative work of the SaaS Software or SaaS Services or
      2. access, attempt to access, or otherwise interfere with the Mestrelab Servers, SaaS Software or SaaS Services (other than to access the functionality of the SaaS Software and SaaS Services in accordance with the terms of this Agreement).
    5. Security . As part of the SaaS Services, Mestrelab (or its subcontractors as applicable) shall use good faith efforts to implement security measures (such as password protection and encryption) and maintain such other safeguards which are reasonably intended to prevent the destruction, loss, interception, or alteration of Subscriber Content by unauthorized persons and which are consistent with current commercial practices in the industry. The parties expressly recognize that, although Mestrelab shall take such reasonable steps, or cause such reasonable steps to be taken, to prevent security breaches, it is impossible to maintain flawless security. Subscriber and its Registered Users will not attempt to disable, modify or circumvent any security safeguard adopted by Mestrelab.
    6. Training . Subscriber may engage Mestrelab to provide training pursuant to a separate written agreement.
    7. Trial . Upon registration, subscriber shall have access to free of cost evaluation version of the SaaS Software for a period of ten (10) days. The use of the evaluation version is fully subject to the terms and conditions of this SaaS Account Agreement. After expiry of the trial period, Subscriber’s access to the SaaS Software and SaaS Services is contingent upon Subscriber’s payment to Mestrelab of the relevant subscription fees (the “ Subscription Fees ”) as set up by Mestrelab. In case the relevant payment is not done, users may be able to log in into the Software, but will not be able nor allowed to use it.
    8. Technical Support . Mestrelab shall provide reasonable technical support via email during its normal business hours. Technical support questions and requests should be addressed to support@mestrelab.com
  2. Term and Termination .
    1. Term . Subject to earlier termination as described in Section 3.2, and unless otherwise agreed in writing by the parties, this Agreement shall commence on the Effective Date and continue for one year (such one year period being referred to as the “ Initial Term ”). Thereafter, this Agreement shall automatically renew for successive renewal terms of one year each (each a “ Renewal Term ,” and, together with the Initial Term, the “ Term ”), unless either (a) Subscriber notifies Mestrelab of its desire not to renew at least thirty (30) days prior to the expiration of the then current Initial Term of Renewal Term or (b) Mestrelab notifies Subscriber of its desire not to renew at least thirty (30) days prior to the expiration of the Initial Term or Renewal Term then in effect.
    2. Termination . This Agreement may be terminated prior to the expiration of its Term as follows:
      1. By Subscriber for any or no reason upon ten (10) days’ written notice to Mestrelab, but Mestrelab shall not +have any obligation to provide any refund, including for fees paid to Mestrelab in advance by Subscriber;
      2. By Mestrelab, if Subscriber fails to pay any amount when due and does not amend such breach within ten (10) days of delivery of written notice;
      3. By Mestrelab, if Subscriber has breached any provision of this Agreement and, if such breach is subject to amendment, such breach has remained unamended for at least thirty (30) days following notice thereof (and if not subject to amendment, then upon notice of the breach to Subscriber);
    3. Effects of Termination .
      1. Except as expressly provided herein, upon any expiration or termination of this Agreement, all rights, licenses and obligations of the parties shall immediately cease and terminate and Subscriber and its Registered Users shall cease to use and access the SaaS Services and SaaS Software. Subscriber shall pay Mestrelab in full any remaining unpaid amounts owed to Mestrelab relating to the Subscription.
      2. Subject to Subscriber paying Mestrelab all unpaid amounts owed, Subscriber shall be entitled to obtain a copy of the Subscriber Content, at Mestrelab’s reasonable discretion, in hard copy or in electronic form. Subscriber shall contact Mestrelab and make arrangements to retrieve the Subscriber Content no later than sixty (30) days following termination of the Agreement. Mestrelab shall not be responsible for storing or maintaining any Subscriber Content not retrieved within three (3) months following termination of this Agreement. Any Subscriber Content created during the evaluation period not followed the purchase of a Subscription will be made available to Subscriber upon request during a period of fifteen (15) days after the evaluation has ended, at the maximum.
      3. Notwithstanding the foregoing, the provisions of Sections 3.3, 4, 6, 8, 10 and 12.6 shall survive the termination of this Agreement in accordance with their terms.
  3. Subscription Fees .
    1. Trial . Subscriber may obtain a free of cost evaluation access to the SaaS Software for the period set up in 2.7- After expiry of the trial period, Subscriber’s access to the SaaS Software and SaaS Services is contingent upon Subscriber’s payment to Mestrelab of the relevant subscription fees (the “ Subscription Fees ”). If said payment does not take place prior or on the last day of the Trial, the subscription shall be automatically cancelled. Only one evaluation access shall be granted to the same Subscriber in period of five (5) years, unless expressly authorized otherwise by Mestrelab.
    2. Initial Subscription Term . The Subscriber shall pay Mestrelab the Subscription Fee specified in the applicable Quote for the Initial Term for a subscription to access to the SaaS Software on or prior to the Effective Date (or, for SaaS Software modules subsequently added by Subscriber to its subscription, prior to the start date specified in the applicable Quote).
    3. Renewal Terms . Mestrelab will charge Subscriber at commencement of each Renewal Term for the then current Subscription Fees (which may be greater or less than the previous Term) for the upcoming Renewal Term. Unless Subscriber notifies Mestrelab in writing that it is cancelling its subscription prior to commencement of the Renewal Term, Subscriber shall be obligated to pay Mestrelab for the entire renewal Subscription Fee for any Renewal Term that has commenced, irrespective of the level of Subscriber’s actual or expected use of the SaaS Software during such Renewal Term.
    4. Additional Registered User Licenses . If Subscriber desires to add additional Registered Users in excess of the then current Authorized Number of Users, then Subscriber may purchase additional licenses as to be allowed to have Registered Users in excess of the then current Authorized Number of Users (and thereby increase the Authorized Number of Users accordingly) by paying Mestrelab the then current per License Subscription Fee (pro-rated for any partial Term based on when the additional Registered Users are registered) for each additional Registered User license. Mestrelab may from time to time during the Term audit the number of Registered Users and if Mestrelab discovers that the number of Registered Users exceeds the then Authorized Number of Users, then Mestrelab shall invoice Subscriber and Subscriber shall pay Mestrelab the applicable Subscription Fees for such additional Registered Users (pro-rated for any partial Term based on when the additional Registered Users were registered).
    5. Payment Terms . All payments shall be made in local currency. Accepting a quote or placing a purchase order implies the full acceptance of the payment terms in this agreement or other express terms agreed directly with Mestrelab in writing.
    6. Payment Means. Payments shall be processes, unless otherwise expressly agreed with Mestrelab in writing, using external payment platforms. Such platforms may require to accept their own Terms and Conditions to process the payment. Mestrelab shall under no circumstance, be responsible or liable for said T&Cs, for the correct or incorrect functioning of the payment platform and/or its consequences regarding the purchasing of a subscription.
  4. Authorized Users And Geographic Conditions
    1. The aggregate number of Authorized Users will not exceed the number of purchased licenses plus a fifty percent (50%). Regardless the Authorized Number of Users, only as many users as the number of licenses under the subscription shall be allowed to be active and operate concurrently, except as expressly agreed to in writing by the Subscriber and MESTRELAB and subject to payment of the then current per License fee (pro-rated for any partial Term based on when the additional Authorized Users are authorized). Payment of the additional fees will increase the total number of Authorized Users accordingly.
    2. The Subscriber agrees to notify Mestrelab in writing as soon as it becomes aware of any unauthorized use of the Software by any person. In addition, MESTRELAB may verify, from time to time during the Term, the number of Authorized Users, and if the number of Authorized Users results to exceed the then total number of Users, MESTRELAB shall invoice the Subscriber and the Subscriber shall pay MESTRELAB the applicable License Fees for such additional Authorized Users (pro-rated for any partial Term based on when the additional Authorized Users were authorized). To that end, the Subscriber will cooperate with Mestrelab in providing the information and/or accesses requested
    3. Use of concurrency licensing model: The geography and Site(s) where the concurrencies are used must be specified to and get the consent of Mestrelab. Permission of Use of concurrent licenses in specific time zones different by more than three (3) hours than the initial place of Use or purchase and permission for Using the concurrent licenses by Affiliates shall be granted by Mestrelab and an additional fee maybe requested.
    4. You are responsible for ensuring that any usage by Authorized Users is in accordance with the terms and conditions of this Agreement, and therefore, You agree to inform each Authorized User of the relevant terms of this Agreement. You are responsible and liable for all uses of the Software and Documentation, and for all actions and failures to take required actions with respect to this Agreement, by Authorized Users or by any other person to whom You or an Authorized User may provide access to or use of the Software and/or Documentation (whether such access or use is permitted by or in violation of this Agreement).
  5. Ownership, Intellectual Property Rights and Nondisclosure .
    1. Mestrelab and its licensors are the sole owners of the SaaS Software and SaaS Services and of all copyright, trade secret, patent, trademark and other intellectual property rights therein and thereto. This Agreement does not provide Subscriber with any rights to the SaaS Software, the SaaS Services or any copies thereof except as expressly set forth herein. As between Subscriber and Mestrelab, Subscriber is the sole owner of the Subscriber Content and all intellectual property right therein and thereto, and this Agreement does not provide Mestrelab with any rights to the Subscriber Content except as expressly set forth herein.
    2. Subscriber shall take all reasonable steps to ensure that no unauthorized persons have access to the SaaS Software or SaaS Services using logins and passwords issued to Subscriber or its Registered Users, and to ensure that no persons authorized to have such access shall take any action which would be in violation of this Agreement if taken by Subscriber Subscriber shall promptly report to Mestrelab any actual or suspected violation of this Section 5, and shall take further steps as may reasonably be requested by Mestrelab to prevent or remedy any such violation.
    3. Feedback . If Subscriber, directly or any of its authorized users, sends or transmits any communications or materials to Mestrelab by mail, email, telephone, or otherwise, suggesting or recommending changes to the Mestrelab IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Mestrelab shall be free to use such Feedback at its owns discretion. Subscribers hereby assigns Mestrelab on your own behalf, and on behalf of Your authorized users all rights, titles, and interest in, and Mestrelab is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Mestrelab is not required to use any Feedback.
    4. Confidentiality Obligations .
      1. Confidential Information . From time to time, either party (the “ Disclosing Party ”) may disclose or make available to the other party (the “ Receiving Party ”), whether orally or in physical or electronic form, confidential or proprietary information concerning the Disclosing Party and/or its business, products, customers, services, policyholders and/or claimants, including but not limited to information and/or documents concerning; (1) financial information, strategic business plans, policies and/or methods; (2) marketing, claims, sales, underwriting strategy, and decision making processes; (3) pricing and/or profit information; (4) lists of actual or prospective customers; (5) proprietary and/or confidential intellectual property; and (6) intellectual property of third parties licensed to the disclosing party (collectively, “ Confidential Information ”) in connection with this Agreement. Each party agrees that during the Term and thereafter: (i) it will use Confidential Information belonging to the Disclosing Party solely for the purpose(s) of this Agreement; and (ii) it will take reasonable precautions, but no less than it would take to prevent the disclosure of its own similar Confidential Information, to ensure that it does not disclose Confidential Information belonging to the Disclosing Party to any third party (other than the Receiving Party’s employees, contractors, and/or professional advisors on a need-to-know basis who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without first obtaining the Disclosing Party’s written consent. Upon request by the Disclosing Party, the Receiving Party will return all copies of any Confidential Information to the Disclosing Party. For Confidential Information that does not constitute trade secrets under applicable law, these confidentiality obligations will expire three (3) years after the termination or expiration of this Agreement, and for Confidential Information that constitutes trade secrets shall survive until such Confidential Information ceases to be a trade secret. The Receiving Party will be responsible for any breach of this Section by its employees, representatives, and agents. Non-public information regarding the SaaS Software and the SaaS Services (including but not limited to their performance, operation, and data formats) and the Documentation are the Confidential Information of Mestrelab. The terms of this Agreement are the Confidential Information of both parties, but may be disclosed by either party with its advisors and potential investors or acquirers who are subject to confidentiality obligations or to enforce its terms.
      2. Subscriber Content . Mestrelab acknowledges and agrees that the Subscriber Content is the Confidential Information of Subscriber (subject to Section 6.3(c)) and is therefore subject to the restrictions on disclosure and use set forth in Section 6.3(a) above. Notwithstanding the foregoing, Mestrelab may use Subscriber Content or other Subscriber Confidential Information to (i) provide the SaaS Services to Subscriber as contemplated herein, (ii) monitor Subscriber’s and Registered Users’ use of the SaaS Services for security purposes, (iii) enforce the terms of this Agreement, and (iv) to study usage of the SaaS Services, including to aggregate with other subscribers’ usage data, in order to identify patterns of use and/or improve the SaaS Services and SaaS Software and to further develop other software applications offered by Mestrelab, including to train algorithms.
      3. Exclusions. For purposes hereof, “Confidential Information” will not include any information that the Receiving Party can establish by convincing written evidence: (i) was independently developed by the Receiving Party without use of or reference to any Confidential Information belonging to the Disclosing Party; (ii) was acquired by the Receiving Party from a third party having the legal right to furnish same to the Receiving Party; or (iii) was at the time in question (whether at disclosure or thereafter) generally known by or available to the public (through no fault of the Receiving Party).
      4. Required Disclosures. These confidentiality obligations will not restrict any disclosure required by order of a court or any government agency, provided that the Receiving Party gives prompt notice to the Disclosing Party of any such order and reasonably cooperates with the Disclosing Party at the Disclosing Party’s request and expense to resist such order or to obtain a protective order.
      5. Equitable Relief. Because unauthorized access, use, disclosure or transfer of the Confidential Information or other intellectual property of either party in violation of this Section 5 will diminish substantially the value of such Confidential Information or other intellectual property and irreparably harm the owner of such Confidential Information or intellectual property, if either party breaches the provisions of this Section 5, the other party shall be entitled to seek equitable relief, including a restraining order, preliminary and permanent injunctive relief, specific performance and any other relief that may be available from any court, without providing a bond or other security, in addition to any other remedy to which such party may be entitled at law or in equity.
      6. Data Privacy. The Parties will comply with all applicable data privacy laws. Subscriber acknowledges that Mestrelab, to provide the services to Subscriber, may have access to limited personal information related to Registered Users. The Parties may need to enter into a Data Processing Agreement accordingly, which will be provided by Mestrelab.
  6. User Data and Security
    1. Infrastructure: it will operated by Amazon Web-Services, on which Mestrelab maintains an executing instance of the SaaS Software and the Subscriber Content, accessible by Subscriber via the SaaS Services.
    2. Data Storage: Any data that you upload to our platform will be stored securely in Amazon Web Services (AWS) S3. AWS S3 provides robust, scalable, and secure storage solutions to ensure the protection of your data. Our use of AWS S3 for data storage is governed by Amazon’s terms of service and privacy policies. By using our Service, you also agree to Amazon’s terms and policies as they pertain to data storage and security.
    3. Data Protection: We implement industry-standard security measures to protect your data from unauthorized access, use, or disclosure. These measures include, but are not limited to, encryption of data at rest and in transit, access controls, and regular security audits.
    4. Compliance: Our data storage practices comply with relevant data protection regulations and standards to ensure your data is handled with the utmost care and confidentiality.
    5. User Responsibilities: While we take significant steps to safeguard your data, you are responsible for maintaining the confidentiality of your login credentials and for any activities that occur under your account. We recommend that you use strong, unique passwords and update them regularly.
    6. Data Misuse: In the unlikely event of a data breach or misuse, we will promptly notify affected subscribers, and take appropriate actions to mitigate the impact and prevent further unauthorized access.
    7. By uploading data to our platform, you acknowledge and agree to the terms in this section 6, regarding to the storage and protection of your data.
  7. Limited Warranty; Limitations of Liability
    1. Mestrelab warrants to Subscriber that the SaaS Software shall perform substantially in accordance with the Documentation. Mestrelab’s sole obligation, and Subscriber’s sole remedy, with respect to any breach of this limited warranty of performance shall be for Mestrelab to correct such nonconformance or provide reasonable alternative functionality at Mestrelab’s sole cost and expense.
    2. Except as stated above, Mestrelab disclaims all other warranties, both express and implied, with respect to the SaaS Software and SaaS Services , including, but not limited to, all implied warranties of merchantability and fitness for a particular purpose (irrespective of any previous course of dealing between the parties or custom or usage of trade), non-infringement, or that the SaaS Software or SaaS Services will be uninterrupted or error free.
    3. Mestrelab’s liability for damages to Subscriber for any claims whatsoever, and for all claims in the aggregate, regardless of the form of any claim or action, shall not exceed the Subscription Fees paid under this agreement for the initial or renewal term in which the most recent claim arose.
    4. Mestrelab shall in no event be liable for any indirect (including loss of profits), special, incidental, exemplary, punitive or consequential damages arising out of or in connection with the use or performance of the SaaS Software or SaaS Services , whether or not Mestrelab has been made aware of the possibility of such damages, including, but not limited to, any damages resulting from loss of data or content or lost profits.
    5. Subscriber acknowledges and agrees that Mestrelab only grants the rights under this Agreement in reliance on limitations of liability and disclaimers of warranty set forth in Sections 8.2, 8.3 and 8.4 above and that these provisions are essential terms of this Agreement .
  8. Third-Party Products
    1. Definition. The Software may include software, content, data, or other materials, that are owned by persons other than Mestrelab, including open source software (OSS) components and other third party components (“Third-Party Components”), and that are provided to Us on license terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”).
    2. Availability. A list of Third-Party Components included in the Software, if any, and the respective Third-Party Licenses can be made available at Your request, if not available in the Documentation, “read me” files, notice files, or other Software files. You must comply with all Third-Party Licenses. If You breach any Third-Party License, You will also be in breach of this Agreement.
    3. Open Source Components:
    4. In the event of conflicts between this Agreement and the license conditions applicable to open-source components, the open-source license conditions shall prevail with respect to the open-source portions of the Software. Therefore, to the extent the terms of the license conditions applicable to open-source components prohibit any of the restrictions in this Agreement, such restrictions will not apply to such open-source component.
    5. Scripting and Automation. The Software may include scripting, macro language, a software development kit, an application programming interface, or other automation features that have been included by Us with the purpose of allowing a certain level of automation and integration with Third-Parties applications. The use of those tools is subject to the following restrictions: (i) they cannot be created to exceed the number of licenses or concurrencies acquired by You, (ii) they cannot be developed or used to replicate functionalities which have been made commercially available by Us in other software applications and (iii) they cannot be developed to allow the Software to be called by external applications and be used as a server (except if agreed to in writing by Us).
    6. No warranty. Mestrelab disclaims any and all liability arising out of or relating to claims of infringement of third-party intellectual property rights to Third-Party Components.
  9. Indemnification .
    1. Mestrelab shall defend, indemnify, and hold harmless Subscriber and its officers, directors, employees, and shareholders from and against any and all any damages, penalties, judgments and reasonable related costs and expenses, including but not limited to reasonable legal fees and expenses, (“ Damages ”) arising out of any third party claim or allegation (a “ Claim ”) that Subscriber’s use or access of the SaaS Software or SaaS Services in accordance with the terms of this Agreement infringes the patent, copyright or other intellectual property right of any third party, except to the extent (a) due to any Subscriber Content or specific materials that Mestrelab uses or uploads into the SaaS Software or (b) such claim is based on Subscriber’s use of such the SaaS Services or the SaaS Software in combination with other services and products not supplied by Mestrelab and not required by the Documentation.
    2. Subscriber shall defend, indemnify, and hold harmless Mestrelab, and its respective officers, directors, employees, and shareholders from and against any and all any Damages, including but not limited to reasonable legal fees and expenses, arising out of any third party Claim that any Subscriber Content posted or loaded into the SaaS Software or SaaS Services by Subscriber or Registered Users infringes the patent, copyright or other intellectual property right of any third party or violates any laws, including privacy laws.
    3. If Subscriber or Mestrelab intends to claim indemnification hereunder (for itself or for another Indemnitee) with respect to any Damages arising under a Claim, then Subscriber or Mestrelab (the “ Indemnified Party ”) shall promptly notify the other party (the “ Indemnifying Party ”) of any Claim in respect of which the Indemnified Party (whether for itself or for one of the persons entitled to indemnification under Section 7.1 or 7.2) intends to claim such indemnification reasonably promptly after the Indemnified Party is aware thereof, and the Indemnifying Party shall assume the defense of any related third party action, suit or proceeding with counsel of the Indemnifying Party’s choice. The indemnity agreement in this Section 7 shall not apply to amounts paid in settlement of any claim, loss, damage or expense if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld or delayed unreasonably. The failure of the Indemnified Party to deliver notice to the Indemnifying Party within a reasonable time after the Indemnified Party becomes aware of any such matter, if prejudicial to Indemnifying Party’s ability to defend such action, shall relieve the Indemnifying Party of any liability under this Section 7 with respect to such Claim. The Indemnified Party and all indemnitees shall cooperate fully with the Indemnifying Party and its legal representatives in the investigation of any matter covered by this indemnification.
    4. Should the SaaS Software or SaaS Services become, or in Mestrelab’s opinion, be likely to become the subject of a claim or an injunction preventing its use as contemplated herein, Mestrelab may, at its option (i) procure for Subscriber the right to continue to access the SaaS Software or SaaS Services hereunder, (ii) replace or modify the SaaS Software or SaaS Services so that it becomes non-infringing, or, if Mestrelab determines, in its sole discretion, that (i) and (ii) are not commercially practical for Mestrelab, then (iii) Mestrelab may terminate this Agreement and arrange to refund to Subscriber a pro-rated amount of the Subscription Fees paid in advance for the then current Initial Term or Renewal Term based on the remaining portion of the then current Term for which such Subscription Fees were paid.
    5. This Section 7 states the entire liability of Mestrelab with respect to infringement of third party intellectual property rights by the SaaS Services or the SaaS Software or any part thereof or by its operation.
  10. Compliance with Laws; Export Control
    1. Subscriber agrees to comply with all applicable laws with respect to Subscriber’s use of the SaaS Software. Subscriber acknowledges and agrees that the SaaS Software, technical data and/or services (“ Items ”), are subject to export control, customs, economic sanctions, and anti-boycott laws, regulations, rules, and associated executive orders enacted, issued, entered, promulgated, or enforced by the European Union, the United States, the United Nations, the Organization for Security and Co-operation in Europe (the “OSCE”), or the country where Subscriber resides (provided such applicable laws or regulations of the Territory do not conflict with applicable regulations of the European Union or the United States) (each individually, an “Export Control Law” and, collectively, the “Export Control Laws”). Subscriber will comply with all applicable Export Control Laws and not provide any Items to anyone in a country or other destination that is subject to a United States Government export embargo (currently Cuba, Iran, North Korea, Sudan, Syria and the Crimea Region) (an “Embargoed Destination”), to a representative of an Embargoed Destination, or to persons or for purposes prohibited under any Export Control Law. Prohibited end-uses include the research on or development of chemical, biological or nuclear weapons, unmanned air vehicles or missiles, or nuclear explosive or fuel cycle activities. In addition to any other remedy it may have, Mestrelab may terminate this Agreement immediately and without notice, and cancel the download, activation and/or provision of any maintenance or other customer service involving any Item if (a) Mestrelab has not received all export-related documentation requested by Mestrelab or (b) Mestrelab believes that such activity may violate any Export Control Law or Mestrelab’s own compliance policies. If Subscriber accesses the Mestrelab Server, or purchases, downloads, or activates Items from the Mestrelab Server, Subscriber represents that it is not in any Embargoed Destination, acting for anyone in an Embargoed Destination, and that it is not a person or entity (or owned by one or more entities) that has/have been sanctioned or otherwise listed on a prohibited persons lists issued by the United States, the United Nations, the European Union, the OSCE, the United Kingdom, Japan, Australia or Switzerland. Subscriber shall indemnify Mestrelab for all losses, costs, claims, damages and expenses (including attorneys’ fees and expenses) arising from its violation or alleged violation of any applicable federal, state or local law, including without limitation, any Export Control Law.
  11. Miscellaneous .
    1. Trademark and Names . This Agreement does not grant either party the right to use any trademark, trade name or logo of the other party in any advertising or promotional material. If mutually agreed by Subscriber and Mestrelab, Mestrelab may identify Subscriber as a customer of Mestrelab, including as a subscriber of the SaaS Software, in promotional materials and published lists of Mestrelab’s customers and/or issue a press release describing this subscription including a quote from Subscriber.
    2. Entire Agreement . This Agreement constitutes the entire agreement between Mestrelab and Subscriber with respect to the subject matter hereof, and supersedes any prior agreement between the parties with respect to the subject matter hereof. No Addendum, waiver, consent, modification, amendment or change of the terms of this Agreement shall bind either party unless in writing and signed by duly authorized officers of Subscriber and Mestrelab. No terms and conditions in any purchase order issued by Subscriber under this Agreement, including in response to a Quote, shall apply and any such purchase order terms and conditions shall be superseded by the terms of this Agreement, except that, as applicable, such purchase order shall evidence Subscriber’s acceptance of the applicable Quote, including Subscriber’s election of any options or choices expressly contemplated by such Quote (such as number of Authorized Number of Users).
    3. Severability . In the event that any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable because it is invalid or in conflict with any law of any relevant jurisdiction, the validity of the remaining provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular provisions held to be unenforceable.
    4. Assignments . Neither this Agreement nor any rights, obligations or subscriptions granted hereunder may be assigned or delegated by either party, including but not limited to by operation of law, without the prior written consent of the other party, which shall not unreasonably be withheld, except that either party may assign this Agreement to a successor to its business in connection with a merger or sale of all or substantially all of its assets. This Agreement shall inure to the benefit of the parties and their permitted successors and assigns
    5. Notices . Any notice by a party under this Agreement shall be in writing and either personally delivered or sent via reputable overnight courier (such as Federal Express) or certified mail, postage prepaid and return receipt requested addressed to the other party as follows:
      To Mestrelab: Mestrelab Research SLr/ Feliciano Barrera 9B-Baixo15706 Santiago de CompostelaA Coruña – SPAINTo Subscriber: to the address indicated on the corresponding Quote or Purchase order, or, in each case, such other address of which either party may from time to time notify the other in accordance with this Section 9.5. All notices shall be in English and shall be deemed effective on the date of personal delivery, two (2) business days after deposit with an overnight courier, or five (5) business days after deposit in the mail.
    6. Governing Law; Dispute Resolution The validity, construction and interpretation of this Agreement, and the rights and duties of the parties, shall be governed by and construed in accordance with the laws of the Spain, without giving effect to the conflict of law provisions thereof, and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods. Other than as necessary to enforce any final judgment, award or determination or to obtain a preliminary injunction or other equitable relief to safeguard a party’s intellectual property or confidential information, any action brought pursuant to or in connection with this Agreement shall be brought only in courts of Santiago de Compostela (Spain) without regard to its conflict of law provisions and both parties submit to the personal jurisdiction, and waive any objections to venue, of such courts.
    7. No Waiver . The waiver by either party of a breach of a default of any provision of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have thereunder, operate as a waiver of any right, power or privilege by such party.
    8. Section Headings . Captions and section headings hereof are for reference purposes only and shall not control or alter the meaning of this Agreement as set forth in the text .

Force Majeure . In the event that either party is unable to perform any of its obligations under this Agreement because of causes beyond its reasonable control or because of any Act of God, accident to equipment or machinery; any fire, flood, hurricane, tornado, storm or other weather condition; any war, act of war, act of public enemy, terrorist act, sabotage, riot, civil disorder, act or decree of any governmental body; any failure of communications lines, transportation, light, electricity or power; any earthquake, civil disturbance, commotion, lockout, strike or other labor or industrial disturbance; or any illness, epidemic, quarantine, death or any other natural or artificial disaster the party who has been so affected shall immediately give notice to the other party and shall do everything reasonably possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended and performance times shall be considered extended for a period of time equivalent to the time lost because of any such delay. Nothing provided herein shall excuse the delay of any payment that is validly due by Subscriber to Mestrelab.