This License Agreement (this "Agreement
") is a binding contract between you ("you
" or "your
") and Albato Ltd ("Provider
," or "us
"). This Agreement governs your access to and use of our services.
BY CLICKING THE "I ACCEPT" BUTTON BELOW, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.IF YOU DO NOT AGREE TO THESE TERMS YOU MAY NOT USE THE SERVICE.
Provider expressly reserves the right to modify this Agreement at any time in its sole discretion by including such alteration and/or modification in this Agreement, along with a notice of the effective date of such modified Agreement. If a revision meaningfully reduces your rights, we will notify you by sending an email. Any continued use by you of the Site or the Service after the posting of such modified Agreement shall be deemed to indicate your irrevocable agreement to such modified Agreement. 1. Definitions
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
1 Aggregated Statistics
means data and information related to Customer's use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
2 Controller, processor, data subject, personal data, personal data breach, processing
and appropriate technical and organisational measures
: as defined in the Data Protection Legislation. 3 Customer Data
: the data inputted by the Customer, Authorised Users, or the Provider on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
4 Data Protection Legislation
: Regulation (EU) 2016/679 of the European Parliament and of the Council (GDPR), California Consumer Privacy Act, Brazilian Civil Rights Framework for the Internet (Law 12,965/2014), Decree 8,771 of 11 May 2016 (Decreto N 8.771 de 11 de Maio de 2016) and any other European Union or Brazilian legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
5 Heightened Cybersecurity Requirements
: any laws, regulations, codes, guidance (from regulatory and advisory bodies. Whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Customer or an Authorised User relating to security of network and information systems and security breach and incident reporting requirements. 6 Normal Business Hours
: 9.00 am to 7.00 pm CET time, each Business Day and 11.00 am to 2 pm each Saturday and Sunday. 7 Services
: the subscription services provided by the Provider to the Customer under this agreement consisting in web-based, application integration and data linking service accessed through the Site. 8 Software
: the online software applications provided by the Provider as part of the Services. 2. Access and use
2.1 Subject to the Customer purchasing the Subscription, the Provider hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to use the Services and the during the Subscription Term solely for the Customer's internal business operations.
2.2 User Account Registration: In order to access and use all of the features of the Service, you are required to open an account ("User Account") by registering with the Provider. When you register for your User Account you must provide true, accurate, current and complete information ("Account Information"), and you agree to update the Account Information in order to ensure that it is current.
2.3 Passwords: Upon registration on the Provider's Site, you will protect with a password the access to your account. You are responsible for maintaining the confidentiality of your password and for all of your activities and those of any third party that occur through your account, whether or not authorized by you. You agree to immediately notify Provider of any suspected or actual unauthorized use of your User Account. You agree that Provider will not under any circumstances be liable for any cost, loss, damages or expenses arising out of a failure by you to maintain the security of your password.
2.4 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) promotes unlawful violence;
(d) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(e) is otherwise illegal or causes damage or injury to any person or property;
and the Provider reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.
2.5 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services in order to build a product or service which competes with the Services and/or the Documentation; or
(c) introduce or permit the introduction of, any Virus or Vulnerability into the Provider's network and information systems.
2.6 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services, in the event of any such unauthorised access or use, promptly notify the Provider.
2.7 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer. 3. Services
3.1 The Provider shall, during the Subscription Term, provide the Services and make them available to the Customer on and subject to the terms of this agreement.
3.2 The Provider shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out during the maintenance window;
(b) unscheduled maintenance performed outside Normal Business Hours, provided that the Provider has used reasonable endeavours to give the Customer at least 5 Normal Business Hours' notice in advance;
3.3 The Provider will, as part of the Services and at no additional cost to the Customer and in consideration of the support fees, provide the Customer with the Provider's standard customer support services during Normal Business Hours at the time that the Services are provided. The Provider may amend the Support Services Policy in its sole and absolute discretion from time to time. 4. Customer personal data
4.1 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
4.3 Both parties will comply with all applicable requirements of the Data Protection Legislation.
4.4 The parties acknowledge that:
(a) The Provider processes any personal data on the Customer's behalf when performing its obligations under this agreement, the Customer is the controller and the Provider is the Processor for the purposes of the Data Protection Legislation.
(b) The personal data may be transferred or stored outside the EEA, Brazil or the country where the Customer is located in order to carry out the Services and the Provider's other obligations under this agreement.
4.5 The Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Provider for the duration and purposes of this agreement so that the Provider may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer's behalf.
4.6 The Provider shall, in relation to any personal data processed in connection with the performance by the Provider of its obligations under this agreement:
(a) process that personal data only on the documented written instructions of the Customer;
(b) not transfer any personal data outside of the European Economic Area or Brazil unless the following conditions are fulfilled:
(i) the Provider has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) the Provider complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(c) assist the Customer in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(d) notify the Customer without undue delay on becoming aware of a personal data breach;
(e) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the personal data; and
(f) maintain complete and accurate records and information to demonstrate its compliance with the Data Protection Legislation and immediately inform the Customer if, in the opinion of the Provider, an instruction infringes the Data Protection Legislation.
4.7 Each party shall ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
4.8 Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer's use of the Services and collect and compile Aggregated Statistics. As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Provider may:
(a) make Aggregated Statistics publicly available in compliance with applicable law; and
(b) use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information.
4.9 Customer consents to the Provider appointing third-party processors of personal data under this agreement. The Provider confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement and in either case which the Provider confirms that it reflect and will continue to reflect the requirements of the Data Protection Legislation.
4.10 Categories of personal data processed: Personal details, including any information that identifies the data subject and their personal characteristics, including: contact details, online identifiers, communications metadata, details of services supplied 5. Provider's obligations
5.1 The Provider:
(a) does not warrant that:
(i) the Customer's use of the Services will be uninterrupted or error-free;
(ii) the Software or the Services will be free from Vulnerabilities;
(iii) the Software or Services will comply with any Heightened Cybersecurity Requirements.
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5.2 The Provider warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement. 6. Customer's obligations
The Customer shall:
(a) without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement; 7. Charges and payment
7.1 The Customer shall pay the Subscription Fees to the Provideron a monthly basis 8. Proprietary rights
8.1 The Customer acknowledges and agrees that the Provider and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services.
8.2 The Provider confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement. 9. Disclaimer of Warranties.
9.1 Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. The Provider shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Provider by the Customer in connection with the Services, or any actions taken by the Provider at the Customer's direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
(c) the Services are provided to the Customer on an "as is" basis.
(d) the Provider shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and 10. Term and termination
The term of this Agreement commences when you acknowledge your acceptance of this Agreement by clicking the "I ACCEPT" button and will continue in effect until terminated as set forth in this Section. We may immediately terminate or suspend this Agreement, any rights granted herein, and/or your licenses under this Agreement, in our sole discretion at any time and for any reason, by providing notice to you or revoking access to the Services. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement. You may terminate this Agreement at any time by ceasing your access to and use of the services or ceasing to renew your subscription. Upon termination of this Agreement for any reason all licenses and rights granted to you under this Agreement will also terminate. 11. Force majeure
The Provider shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Provider or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood or storm, provided that the Customer is notified of such an event and its expected duration. 12. Entire agreement
12.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
12.2 Each party acknowledges that in entering into this agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
12.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement. 13. Assignment
13.1 The Customer shall not, without the prior written consent of the Provider, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
13.2 The Provider may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement. 14. No partnership or agency
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power). 15. Governing law
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Brazil. 16. Jurisdiction
Each party irrevocably agrees that the courts of Brazil shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).