This License Agreement (the “Agreement” or “EULA”) is intended to govern access to and use of the Software, which is the sole and exclusive property of Tu Primer Laburo S.R.L., also known by its trademark Nawaiam® Gaming for the future ® (hereinafter “Nawaiam” or “Licensor”), together with all content, products and services that Licensor makes available to users (hereinafter “User” or “Licensee”).
The Licensor, Tu Primer Laburo S.R.L., who states that it is specifically authorized by Tu Primera Pega SPA (a company established in Chile) to commercialize the licenses included herein, is a commercial company duly incorporated and registered in accordance with the laws and regulations in force in the Republic of Argentina, where the company is established in Ayacucho 1744, sixth floor, department “B”, in the Autonomous City of Buenos Aires, and its e-mail address is firstname.lastname@example.org.
Clause I: Terms, definitions and interpretation.
To all effects and purposes of this Agreement, the Parties understand that the terms and conditions incorporated herein shall be executed in accordance with the terms, meaning and scope set forth below. In this sense, these terms shall be interpreted primarily on an exegetical basis and secondarily on a systemic basis and not in any other system or form of interpretation.
1.2. Consequently, any reference to the terms described in this document shall be interpreted in accordance with the scope set forth below:
- Agreement: This End User Software License Agreement, also referred to as the “EULA”».
- Authorized Reseller: Any party that is expressly and duly authorized by Nawaiam to participate in any way in the maintenance, commercialization or distribution chain of its products and services. This term shall be used indistinctly for Resellers or Referrers that may be authorized by Nawaiam.
- Nawaiam or Licensor: Licensor, and sole and exclusive licensee authorized in Argentina to exploit the rights to the Software subject matter of this Agreement.
- Licensee: Any individual or entity that obtains one or more licenses to the Software, or acquires any service, product, upgrade, feature or content related thereto, whether free of cost or for a fee.
- Parties: Plural term to refer to Licensor / Licensees / Users indistinctly and collectively.
- User: Generic and indistinct term to refer to any person using Nawaiam’s own intellectual property Services and Products. Licenses shall not be transferable to other persons. However, in the event that the Licensee is a company that uses the Software for human resources purposes, it shall be understood that the license may be used by employees, contractors and/or third parties strictly related to the purchaser of the Software and with the fulfillment of the referred purpose; being the latter understood as Users of the Software
- Nawaiam Software: The Software whose licenses of use, for end-users, is subject to this Agreement. Nawaiam is a software used as a tool for the elaboration of job profiles, oriented to its later use, especially in Human Resources areas, and in matters of selection and/or reorganization of work teams. For this purpose, Nawaiam uses its innovative software based on the idea and principles of Gamification®, where the fulfillment of such utilitarian purpose uses Gaming as a strategic ally.
- Application or platform: Access interface to the Software, its features and resources.
- Content Updates: Any modifications to the Software, whether made automatically or not, as a result of upgrades or changes to its operation or appearance. Upgrades, as the case may be, may result in additional charges. Some updates may result in loss of information. Accordingly, the User declares to know and understand such eventual circumstance, and undertakes to carry out the necessary backups to diligently prevent any loss or alteration of information, according to its own interest and at its own risk.
- Upgrades: An upgrade shall mean the acquisition of a better version than originally purchased. The acquisition of a better or superior service than the one originally provided shall be considered by default for valuable consideration, although Nawaiam reserves the right, at its sole discretion, to release Licensee from any payment, notwithstanding the provisions of Section 21.5 below.
- Services: The services included in the Software will depend on the license of use effectively acquired. It is recommended to the user to internalize the different levels of contracting and services included.
- Quote: A particular Quote that may be sent by Licensor to a particular Licensee. In the event that a particular Quote is not sent, the fees advertised on Licensor’s website shall apply.
- Main Contacts: Addresses and e-mail addresses provided by the Parties. Nawaiam constitutes its contact address at the heading. The User in which it is declared at the time of the creation of a user, and its respective login, for the first time.
1.3. In the event that the terms set forth in this Agreement, or any word, phrase, clause or sentence shall be construed to be contrary to law or unenforceable for any reason, such word, phrase, clause or sentence shall be modified or deleted so as to give meaning consistent with such later provision or ruling. Nevertheless, even in such event, the remaining Clauses of this Agreement shall not be affected thereby, and shall remain in full force and effect for their intended purposes and effects.
Clause II: Acceptance and Coming into Force.
2.1. Access to or use of the Platform by the User shall be interpreted, for all purposes hereof and without limitation, as full knowledge and acceptance of the terms and conditions set forth in this Agreement. Consequently, a detailed and careful reading of this Agreement is recommended. In this regard, the first access by the User, or the respective contracting of the Products and Services described herein, regardless of the occurrence of subsequent access or use, implies the full entry into force of the rights and obligations of the Parties under this Agreement.
2.2. The acceptance of this Agreement implies an express acknowledgment by the User of the reading, understanding and acceptance of the terms, effects and scope of this Agreement; not being able to claim lack of knowledge of the stipulations that have been made available to the User.
2.3. Any party who does not agree to the terms and conditions herein, which are hereby constituted as mandatory and binding, shall refrain from using the Platform, the Software and any products and services that are the intellectual property of Nawaiam. The Licensee’s or Users’ sporadic or continued use of any products related to this Agreement constitutes acceptance of any modifications to this Agreement. In this respect, Nawaiam, in its sole discretion and without prior notice, may modify, in whole or in part, this Agreement, its usage policy and its services and product policies, without being legally obligated to notify Licensee or Users. These updates, revisions, supplements, modifications and additional rules, policies, terms and conditions (collectively referred to in this Agreement as “Additional Terms”) shall be effective immediately and shall be deemed to be an integral part of this Agreement. Nawaiam, in its sole discretion, may notify Users via Newsletter, notices or generic communications of any modifications to this Agreement; notwithstanding, such action shall not be construed to create a specific obligation to notify. Accordingly, any such notice shall be construed as an act of politeness by Nawaiam and shall not relieve Licensee and Users of their obligation to keep Licensee and Users duly informed of any modifications made to the terms hereof.
Clause III: Term.
3.1. The Parties, in their mutual agreement, understand that this Agreement shall remain in force for the duration of the contractual relationship between them, and as from the date of execution fixed in accordance with the provisions set forth in Clause 2; notwithstanding the fact that certain clauses, due to their nature, shall remain in force after the end of the term of the license of use acquired hereunder.
3.2. Furthermore, and without the need for prior notice, upon expiration of the aforementioned term, this Agreement shall be automatically extended for a new period, which shall be equivalent to the term originally contracted by the User. In the event of such extension, it shall be deemed an extension agreed to by the Parties with respect to all the terms and covenants set forth herein, including any Additional Terms that may have been updated; notwithstanding the effects resulting from Licensee’s partial or total breach of the Agreement. Either Party may exercise the option not to continue with the adhesion to the service, requiring the cancellation of the subscription, prior notice to the other Party; such notice shall be given at least five (5) business days previous to the date on which the automatic extension referred to herein shall occur.
Clause IV: Grant of License.
4.1. Intellectual Property Rights: In consideration of the documents and information that Licensee has had before it in due time, and in sufficient time to be aware of their scope and content, Licensee and Users represent and agree:
4.1.1. Whereas Nawaiam is the sole and exclusive owner of all intellectual property rights related to the Software, including all tools, aspects, information and data related to the Software. Furthermore, Nawaiam is the sole and exclusive owner of the registered trademarks Nawaiam®, Gaming for the future®, and Gamification®.
4.1.2. the execution of this Agreement shall in no way imply the transfer, in whole or in part, of Nawaiam’s intellectual property in any content to Licensee, Users or any other party related to Licensee that may have participated in this Agreement, even from time to time. In addition, it shall not imply the formation of an entity, joint venture or any other form of partnership that may grant Licensee rights to Nawaiam’s sole and exclusive intellectual property.
4.1.3. Licensee and Users shall be strictly bound for the purpose of observing, complying with and adjusting their conduct in accordance with all contractual and technical limitations relating to the use of the Software. Nawaiam’s intellectual property shall include all modifications made to the Software, in accordance with the requirements to be complied with in respect of Licensee and Users, in the case of engagements involving the conditioning of the Software to a particular use or fulfillment of a particular purpose.
4.1.4. Notwithstanding the foregoing, the scope of this Agreement includes any software or rights not incorporated herein, but which are owned by Nawaiam.
4.1.5. The Licensee and the Users undertake to notify Nawaiam within 48 hours of the occurrence of any event which, regardless of its cause or the person responsible, may result (even potentially) in an infringement of Nawaiam’s intellectual property rights. The failure to comply with this provision shall trigger the application of the termination procedure provided herein.
4.1.6. Licensee and Users agree not to make any changes without the necessary and unavoidable intervention of Nawaiam. Licensee and Users may not modify, alter, decompile, disassemble, reverse engineer or emulate the functionality, reverse compile or reduce it to human-readable form, or create derivative works of the Software without the prior written consent of Nawaiam. Licensee and Users understand and agree that any changes or adjustments made other than in accordance with this provision may result in violation of applicable civil, commercial or criminal laws.
4.1.7. Product identified as “Not for Resale” or “NFR” may not be resold, transferred or used for any purpose other than demonstration, test or evaluation.
4.1.8. The intellectual property rights detailed below shall remain the property of Nawaiam.
4.2. Subject to the license restrictions and confidentiality provisions set forth herein, Licensee, Users and contractors performing work for Licensee, are authorized to use the Software only on behalf of Licensee, as necessary, to fulfill Licensee’s obligations to Licensee, which necessarily involve the use of the Platform. Licensee shall be solely and exclusively responsible for Licensee’s and Licensee’s contractors’ compliance with the terms and conditions of the license granted hereunder and the confidentiality and non-competition obligations set forth in this EULA. Other than the referenced persons, no other party may use or make use of the Software, which violation, if it occurs, may result in appropriate legal and even criminal liability for Licensee, its Users and the third party infringer of Nawaiam’s intellectual property.
4.3. Any modification to the programming of the Software, regardless of the scope or functionality affected, shall be strictly prohibited, unless the Parties expressly agree otherwise in writing. Modifications may in no case, even with such express consent, be separated from adaptations that are merely functional for Licensee; and, therefore, shall in no case affect Nawaiam’s intellectual property rights, nor the economic rights related thereto. Exceptionally, and with prior authorization expressly provided by Nawaiam, Licensee may extend the use to third parties, employees or contractors, subject to the limitations specified. Including in such cases, Nawaiam declares that any modification made to the Software, or related products and services, may give rise to contingencies, including, but not limited to, loss of stored information, loss of basic functionalities, and others. The User, in this regard, undertakes to take all necessary steps, at its own cost, understanding and risk, to avoid such occurrences.
4.4. The Nawaiam Software is provided to Licensee “As Is”. Nawaiam does not warrant that the functions contained in the Software will meet Licensee’s requirements, or that the operation of the Software will be uninterrupted or error-free, or that defects in the Software will be corrected in the manner Licensee expects. Accordingly, Nawaiam does not warrant or make any representations regarding the use or the results of the use of the Software provided with respect to its accuracy, correctness, reliability or otherwise. No oral or written information or advice given by Nawaiam or an authorized representative of Nawaiam shall create a warranty or in any way increase the scope of the warranty provided herein.
4.5. The Limited Warranty set forth above is the only express warranty granted to Licensee, and is provided in place of any other express warranty, if any, created by any documentation or instrument. Except for the Limited Warranty and to the maximum extent permitted by applicable law, Nawaiam and its suppliers provide the Product and support services (if any) “As Is”, and Licensee hereby disclaims all other warranties and conditions, whether express, implied or contractual, including, without limitation, any implied warranties, including warranties of merchantability, duties or conditions of merchantability, suitability for a particular purpose, accuracy or completeness of answers, results, workmanlike effort, lack of viruses, and lack of negligence, all with respect to the Product, and the provision or non-provision of support services.
4.6. Exclusion of Damages: To the maximum extent permitted by the application of law, in no event shall Licensor or its suppliers be liable for any special direct, indirect and/or consequential and/or incidental and/or consequential damages; including, without limitation, damages for loss of opportunity, profits or confidential or other information, business interruption, physical or psychological injury, loss of privacy, breach of duty, including breach of good faith or reasonable care, negligence and for any other material or other loss arising out of or in any way connected with the use of or inability to use the Product and/or the Service, the provision of or inability to provide support services, or otherwise under or in connection with any provision of this Agreement; where in any way, actual or potential, direct or indirect, with immediate or mediate relation to the result, Licensee, its Users or any other person with a business or employment relationship with Licensee, whether permanent, temporary or even incidental, with or without access to the Software or Products, may have been involved in the occurrence of such damages or failed to exercise due diligence or care in preventing them, regardless of the actual or abstract proportion of impact that such actions or omissions, in particular, may have with respect to the occurrence of the damages. The Licensee agrees in such circumstances to hold Nawaiam harmless from liability for actual or potential damages in accordance with the foregoing provisions.
4.7. Statement Regarding Software Functionality Compliance: Licensees and Users represent and warrant that they know, understand and agree that the Software licensed from Nawaiam constitutes a support tool, which replaces the traditional recruitment and internal diagnosis processes in the human resources area; however, this does not exempt that the system may be free of defects. Accordingly, and being an essential obligation of the User and Licensee the avoidance and reduction of harmful consequences, this Clause, as agreed by the Parties, shall be interpreted in the light and understanding of the consequences provided in Clause 4.6.
Clause V: Technological requirements.
5.1. Operating Requirements. The use of the Software requires the compliance of the terminals where the Software will be operated by Licensee and/or Users. Users shall have: i) a cell phone or tablet with a preferably modern processor; ii) Android -v4.4 or higher- or iOS -v10.0 or higher- operating system; iii) Internet access with a stable and fast connection; iv) Available storage space, which shall be determined according to the version and operating system of the User. Licensee must also have access to the Internet with a stable and fast connection and a browser in order to be able to visualize the results of the licenses obtained.
Clause VI: Statements and Warranties.
6.1. Software and Services. Licensor represents and warrants that: (i) the Software provided will be free of significant programming errors. The Parties shall interpret the meaning of “significant programming errors” as inclusive of all those damages that, not being attributable in any way to Licensee (in accordance with Section 4.6), make the fulfillment of the purpose for which the service was provided impossible or impracticable. In the specific case, a significant programming error shall be the one that prevents the obtaining of a result -not necessarily compatible with the result expected by the User- after having completed and finished the game; (ii) the services and the Software shall comply with the standards generally observed in the industry for similar services and Software.
6.2. Ownership. Authority: Licensor represents and warrants that: (i) it is authorized by Tu Primera Pega SPA to exploit, in the Republic of Argentina, the entire copyright, trade secrets, patents and other intellectual or industrial property rights attached to the Software; (ii) it has full power and authority to grant the rights granted pursuant to this Agreement to Licensee with respect to the Software; and (iii) neither Licensor’s performance of the Services nor Licensee’s license and use of the Software and associated services, so long as it conforms to the terms of this Agreement, will in any way constitute an infringement, misappropriation or other violation of any copyright, trade secret, trademark, patent, invention, proprietary information, non-disclosure or other rights of any third party.
6.3. Users’ and Licensees’ warranty statement for the benefit of Nawaiam. They represent and warrant that:
6.3.1. Use the Software in an improper manner for a purpose other than that set forth herein, or other than the purpose for which you originally contracted the Nawaiam Software.
6.3.2 That all parties in any way connected therewith shall comply with the confidentiality policy set forth in Clause VII with respect to Nawaiam’s intellectual property. Licensee warrants that it will hold Nawaiam harmless against any damages arising from a breach of such obligation.
6.3.3. Licensee shall be subject to non-competition clauses with respect to the programming of the Software, for the benefit of Nawaiam.
6.3.4. No procedure or warranty provided for in this document may be interpreted in a manner that is improper or that allows misuse of Nawaiam’s intellectual property.
6.3.5. Nawaiam shall avoid and, in such event, indemnify and hold harmless Licensor for any breach of security, whether occurring by human error or internal system failure or hardware failure, or by any negligent or willful misconduct, act or omission by its users, employees, authorities or any other third party who may have access to the Software on behalf of Licensee or an unauthorized third party to whom Licensee has given access to the Software, documentation, reports or any other information contained therein. Therefore, Nawaiam shall be exempt from any liability with respect to such misuse, without prejudice to any legal action that the Licensor may bring against the Licensee, its users, employees, authorities or any other third party involved for any damage caused.
6.3.6. Licensee warrants and represents to Licensor and Users that the User data transferred to it by Nawaiam with respect to the results obtained from the use of the Licenses purchased: (i) are treated with absolute reserve and protection; (ii) that its own bases are correctly registered and recorded in accordance with the applicable legislation; (iii) and that in the event of any type of damage or controversy that may occur with respect to the same under its scope of action, Nawaiam shall be held harmless. Furthermore, the User understands and assimilates, that once Nawaiam transfers the data to the Licensees, the same will be out of its scope of protection, therefore any type of right or claim that he/she may wish to exercise on the same, must be addressed to the Licensee company that acquired the data.
6.3.7. Conflict of Interest: Licensee and its associates, dependents, or third parties related thereto shall refrain from engaging in such activities in accordance with the provisions herein.
6.4. Nawaiam’s warranty statement for the benefit of the User: Nawaiam represents and warrants that:
6.4.1. Software Performance: The Nawaiam Software shall perform substantially in accordance with the accompanying documentation and functionalities for a period of thirty (30) days from the date of receipt. For defects that become known to the User after the thirty (30) day period, Nawaiam does not grant any warranty or refund of any kind, notwithstanding any technical support that may be applicable.
6.4.2. Supplements and Upgrades: Supplements or upgrades to the Product, including but not limited to service packs (if any) or rush fixes provided to you after the expiration of the thirty (30) day Limited Warranty period, are not covered by any warranty or condition, express, implied or imposed by law.
6.4.3. Exclusion of direct, indirect, consequential or other damages: The sole and exclusive remedy for any defect or damage arising out of Nawaiam’s breach of the limited warranty period is hereby instituted as follows: Except for any refund which in Nawaiam’s sole discretion may be made, User shall not be entitled to claim, by any means whatsoever, any damages, including, without limitation, direct, indirect, incidental or consequential damages, if the Product does not comply with Nawaiam’s Limited Warranty. The terms of Section 4.6 above (“Exclusion of Incidental, Consequential and Certain Other Damages”) are incorporated into this Limited Warranty as well.
Clause VII: Personal Data Policy.
7.1. Nawaiam collects personal data directly from the Users who may access the Nawaiam Software. Said data are provided autonomously and independently by the will and control of the Users, notwithstanding the data that may be collected through the related functions provided by Facebook® or Linkedin® or other networks (subject to prior acceptance) and others will be requested in order to have more complete profiles of the Users. These additional data may be, for example: age, educational status, area of residence, National Identity Card, employment data, personal skills, and any other similar data. If the User does not want us to collect his/her personal information, he/she should refrain from using the Software. The Licensor declares that in particular the profile resulting from the User’s participation in the game comprising the Software (hereinafter the “Profile”) will be collected. To all effects, Licensor declares that the Profile is not a psychological profile, psycho-diagnosis, or a professional assessment of the User’s personal qualities; but a report that highlights some skills detected after comparing your answers with results and answers pre-programmed in the Software, which does not ensure or guarantee that the highlighted skill or aspect to be improved will necessarily be in accordance with the reality or the theoretical or practical result expected by the User, the Licensee, or the company that finally takes into account such Profile.
7.2. Nawaiam collects personal data from its Users for the purpose of making future transfers of such data, whether for a fee or free of any charge, to third parties. These third parties may or may not coincide with the Licensor that has acquired the licenses that the User then uses. Under no circumstances shall Nawaiam request or collect sensitive data from the User. The destination of the data collection is in some cases for its own storage, creating a secure internal database that may be shared with the Licensees that request it. The User guarantees under his/her sole responsibility that the data he/she provides is correct, true and current. Nawaiam is not responsible for the veracity of such data.
7.3. Use of the information collected: All the information provided will be treated as confidential. Notwithstanding the foregoing, our application uses the information stored for the purpose of transmitting Licensees, whether they are used in personnel selection processes or to evaluate the performance of their internal work teams. The User expressly declares to know and accept the destination that will be given to the data thus provided, with all the consequences that may be expected as a result.
7.5. Whenever Nawaiam processes personal data about any person in the course of providing the Services, it shall do so only as a data processor acting on behalf of Licensee (as a data controller). Once such data is transferred, Nawaiam shall not be responsible for its processing.
7.6. Nawaiam will process the Data in accordance with Licensee’s lawful instructions and represents that it will not: (i) assume any responsibility for determining the purposes for which and the manner in which the Data is processed; or (ii) process the Data for its own purposes (other than for the aggregate analytical purposes hereby authorized by Customer).
7.7. Nawaiam shall implement and maintain throughout the term of this Agreement appropriate technical and organizational measures to protect the Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, and against all other unlawful forms of processing. In this Section, and in accordance with the definitions contained in Article I, the terms “controller”, “processor” and “personal data” shall have the meaning given to them in the European Union Data Protection Directive 95/46/EC.
7.8. The User understands and assimilates, that once Nawaiam transfers the data to the Licensees, the same will be out of its scope of protection, therefore any type of right or claim that the User may wish to exercise on the same, must be addressed to the Licensee company that acquired the data. Although these companies are committed to protect the information transferred, to provide the corresponding level of protection and treatment and to be in compliance with the legislation in force, it is not possible for Nawaiam to ensure that the Licensees have the actual adequate level of security or that they presume to have.
Clause VIII: Indemnity.
8. 1 Mutual Indemnification: Each party shall indemnify, defend and hold harmless the other, its Affiliates and their respective directors, officers, employees, agents and related parties (each of the foregoing hereinafter referred to as an “Indemnified Party,” individually, and as the “Indemnified Parties,” collectively, and the counterparty referred to as the “Indemnifying Party”) with respect to any and all claims, claims, demands, actions, liabilities, losses, costs, reasonable attorneys’ fees, expenses, judgments or damages, whether direct, indirect, ordinary, special or consequential, resulting from any claim made by a third party or suit brought against an Indemnified Party arising out of (i) the negligence of the Indemnifying Party, its agents, employees, directors, officers or authorized resellers; (ii) any breach of this Agreement, including any representation, warranty or covenant made herein; (iii) any claim brought against the Indemnified Party, by the Indemnifying Party’s agents, employees, directors, officers or authorized resellers.
8.2 Intellectual Property. Further to the indemnification provided in Section 8.1 above, Licensor shall indemnify and hold harmless the Indemnified Parties from any claims resulting from the use of the Software or any part thereof or the misappropriation or infringement of a patent, copyright, trade or trade secret, trademark, or other intellectual property rights. Without limiting the foregoing, Nawaiam shall not be liable in any way for the claims set forth in the preceding paragraph where the damage caused is a direct or indirect result of the misuse, modification, update, download or installation of the Software, not expressly authorized by the Licensor, by the User and its related parties, employee, directors or officers, authorized distributors, their affiliates or any other party who may have had access to the software directly or indirectly at the Licensee’s expense. In any such case, Nawaiam shall be entitled to take appropriate legal action to recover any damages suffered by Nawaiam or any third party as a result of such acts.
8.3. Indemnification Process: If a third party submits a claim that is covered by the “Mutual Indemnification” or “Intellectual Property” sections above against an Indemnified Party with respect to which such Indemnified Party intends to claim indemnification under this Section, the Indemnified Party shall give notice of such claim to the Indemnifying Party including a full description of the claim, with all relevant supporting documentation, and the amount requested, if known, together with a breakdown of the amount of the claim in question. Failure to give such notice shall not relieve the Indemnifying Party of its obligations hereunder, except with respect to additional damages or harm resulting from delays or irregularities in such notice. Upon giving such notice, the notified Party shall be obligated to defend the Indemnified Party against the claim, having the right to assume control of the defense of the claim with legal counsel appointed by the Indemnifying Party, and reasonably satisfactory to the Indemnified Party. The Indemnified Party shall, to the extent commercially reasonable, fully cooperate with and assist the Indemnifying Party in its defense of such claim in all reasonable respects, at the request of the Indemnifying Party. The Indemnifying Party shall take commercially reasonable steps to maintain the Indemnified Party fully informed at all times as to the status of the defense. The Indemnified Party shall have the right, at its own expense, to employ separate counsel in any action, but the role of such counsel shall only be in support of counsel for the Indemnifying Party. No Party shall be liable for any settlement of any action or claim made without its consent, which shall not be unreasonably withheld.
8.4 Remedies. At Licensor’s sole discretion, and in lieu of the indemnification set forth in the “Intellectual Property” Section above, if Licensee’s use of the Software is prohibited, or if Licensor reasonably believes that a court order preventing Licensee’s use of the Software is likely to be issued, or if Licensee believes in good faith that the Software is likely to be determined to be an infringement or misappropriation of a patent, copyright, trade secret, trademark, or other real property or proprietary right, Licensor may, at Licensee’s expense, in the following mandatory order: (i) replace the Software with compatible, functionally equivalent software that does not infringe such rights; or (ii) modify the Software so that it is non-infringing of such rights; provided that such replacement or modification does not materially affect the functionality or performance of the Software. Such procedure shall waive any claim or action to which Licensee believes it is entitled, or the cause of action for which is related to the foregoing clause.
8.5. Non-Competition and Conflict of Interest: Licensee represents, agrees and undertakes to refrain from developing, initiating, participating or taking part, by itself or through an intermediary, in any activity that is directly or indirectly competitive with the Software or any other product or by-product covered or subject to be covered by Nawaiam’s intellectual property, regardless of its name or designation. This absolute prohibition shall be effective during the term of this Agreement and until five (5) years after the termination of the contractual relationship between the Parties, regardless of the cause or grounds for such termination. For purposes of this paragraph, an activity in violation of this non-competition provision shall include, but is not limited to, any planning, design, execution or implementation that, to the best of Nawaiam’s understanding, may be a competitive act with respect to Nawaiam’s line of business. Notwithstanding the foregoing, Licensee shall not be precluded from contracting for an analogous service provided by another entity after the termination of this Agreement or even before the expiration of the aforementioned term of protection, provided that such service existed prior to the execution of the agreement with Nawaiam, and provided that Licensee had no relationship with or involvement in the formation of such provider entity. Licensee specifically agrees to refrain from taking actions, on its own behalf or on behalf of third parties, regardless of the form of such actions, which, directly or indirectly, may constitute competitive activity with respect to the products and services subject to Nawaiam’s intellectual property, whether such actions took place within or outside the geographic boundaries of this Agreement. In the event of a breach of the foregoing provision, Licensee shall pay Nawaiam compensation equal to three (3) times Licensor’s best annual turnover in any country in which it conducts business, directly or through third parties. In order to determine the amount of such compensation, Licensor shall take the following parameters as a basis for computation: a. The revenues of the country where Licensor had the highest turnover shall be considered for such purpose; b. The amounts in question shall be considered the revenues of the country where Licensor had the highest turnover. The amounts in question shall be considered without deducting any type of expense (i.e., the gross turnover shall be considered). c. The resulting annual amount shall be multiplied by three.
Clause IX: Relationship of Parties
9.1. The Parties declare that they are completely independent parties and that they exercise their activity in a distinct and separate manner. Therefore, they do not have shares nor are they shareholders or partners coincident with each other, they do not share a legal or fiscal address, they do not share clients or suppliers, and they do not have any commercial or non-commercial relationship other than the present one.
9.2. Accordingly, the Parties hereby declare that they acknowledge and accept the fact that each Party conducts its business with its own organization, management and personnel, and each Party assumes in full the commercial risks related to its activities, relationships and the performance of its obligations hereunder. In addition, the Parties represent that nothing in this Agreement shall be deemed or construed as creating an employment relationship, partnership or joint venture between the Parties; and nothing in this Agreement shall be deemed or construed as creating an employment relationship or a relationship of principal and Nawaiam and its employees and Licensee, nor between Nawaiam and Users, nor between Licensee and Users.
9.3. Each Party represents and warrants that it will make any statement or announcement that may be necessary to provide certainty about the independent relationship described above; therefore, they undertake to notify the other party, within a period of forty-eight (48) business hours, of the existence of any act that may generate confusion with respect to such independent relationship. Furthermore, and notwithstanding the specific provisions set forth in this Agreement, the Parties agree to refrain from making any statement, declaration or announcement that may lead to an unfeasible confusion, connection or assimilation between both companies, and should such a situation arise, the Parties hereby state that they will rectify the situation within a period of twenty-four (24) hours.
Clause X: Publicity.
10.1. Licensee acknowledges that Nawaiam may use Licensee’s name and logo for the purpose of identifying Licensee as a customer of Nawaiam’s products and/or services, including press releases in which Nawaiam participates highlighting new customer engagements. Moreover, Nawaiam may use the name and logo of its customers, provided that it has prior written authorization from them or their representatives. In any case, such use shall only be limited to the purpose of identifying Licensee as a user of the Software with a view to promoting the service. Notwithstanding the foregoing, even in the absence of such written authorization, Licensee hereby expressly authorizes Nawaiam to use any information that Nawaiam may consider to be of technical, commercial and technological relevance, advances and developments of any kind in the industry or with respect to any of its specific products, for the purpose of surveying or reporting with a view to improving the Software. If Licensee refuses to make its name and logo public, the information collected, stored and processed will be published while maintaining the complete anonymity of Licensee, which will be named with Licensee’s initials. If Licensee wishes to use the name, logo or any other copyrighted material, which is owned by Nawaiam, Licensee must make a request in accordance with the procedure described in the clause below.
10.2. Requests by either party must be made by the requesting party to any of the principal contacts of the requested party not less than thirty (30) days prior to the release of any press release, public disclosure or statement, or any use of the requested party’s name or trademarks. If approval is granted, all uses of the requested Party’s name, trademark and/or trade name shall strictly comply with such instructions as the requested Party may direct, and due regard shall be given, with respect to any public statements, to the reputation and best business practices benefiting the party authorizing the use of its name or trademark. Notwithstanding the foregoing, nothing in this Section shall prevent the Parties from complying with disclosures required by law or imposed by any governmental body, authority or agency; provided that the releasing party shall notify the remaining party in writing of such disclosure and allow it a reasonable time to comment on such disclosure prior to the respective issuance.
10.3. Licensee agrees that Nawaiam and its affiliates may collect and use the technical information you provide as part of the support services related to the Product. Nawaiam will not use this information in a manner that personally identifies Licensee or its Users.
10.4 The Parties shall not release any press releases or make any other public disclosures or statements in connection with this Agreement without the prior written consent of any of the representatives designated in the Principal Contacts section.
Clause XI: Fees.
11.1. The fees for the Services are set forth in the quotation included in the Quote sent to Licensee, which shall be prepared on a personalized basis. The fees are subject to change according to Nawaiam’s dependent service costs. They are detailed and defined according to the different modalities offered by Nawaiam.
11.2. Unless specifically provided otherwise, the Fees are non-refundable. Payment of the same are considered monthly, consecutive and cumulative.
11.3. To the extent Licensee terminates, postpones or delays the performance of the Services or the License Grant, prior to the Use Date, Licensor shall retain forty percent (40%) of the total fees for the Agreement – set forth in the Quote – as liquidated damages and not as a penalty. Licensee understands and agrees that Nawaiam has scheduled its personnel to perform such Services and License, and that any termination, postponement, modification or alteration of such schedule will result in costs to Licensor, understanding that the stated charge is reasonable.
11.4. Subject to credit approval by Nawaiam, all such Fees shall be payable upon receipt of Licensor’s invoice in the currency, form and manner agreed upon. Licensee shall pay the Fees within five (5) days from the date of Nawaiam’s invoice, or within such other period as may be agreed in the Quote document.
Clause XII: Capacity and Applicable Law.
12.1. The Parties hereby affirm that they have legal power, capacity and authorization to enter into and perform this Agreement, that the entities by which they act on their behalf are duly organized and validly existing under the laws of the jurisdiction of their formation and are registered with the respective governmental, fiscal, tax and administrative institutions in accordance with their business activity.
12.2. The Parties shall keep detailed and accurate accounting records in accordance with the laws and regulations applicable to the Products.
12.3. Nawaiam agrees to comply with all applicable legislation, statutes and/or national, provincial and municipal regulations in relation to its business activities, and/or regulations that may replace such applicable law in the future. Furthermore, Licensee shall be solely responsible for its non-compliance and shall bear the legal consequences resulting from its non-compliance.
12.4. The Parties shall comply with all statutes, executive orders, decrees, regulations, rules, orders, ordinances and any other legal, administrative or municipal provisions applicable to the Services and its employees or regulations deemed applicable by the authorities, if such applicable law is in effect or becomes effective during the term of this Agreement or its extensions.
12.5. The Parties further agree to comply with the laws, regulations and statutes that are in force or that may be enacted during the term of this Agreement, which relate to the protection of personal data.
12.6. The Parties agree to comply with and take reasonable steps to ensure that their subcontractors and affiliates comply with all laws and regulations applicable to the Parties, in connection with the provisions set forth in this Agreement, and shall take reasonable steps to ensure that their subcontractors and affiliates refrain from engaging in any action that may violate such laws and regulations or that may violate any provision.
Clause XII: Confidentiality.
13.1. Owner Information. For the purposes of this Agreement, the following definitions shall apply:
13.1.1. “Información de propiedad» significa Secretos comerciales y cualquier otra información que sea de valor para las Partes, específicamente, aunque sin limitarse a, los derechos de propiedad intelectual a que se refiere anteriormente, y que serán tratados como confidenciales y serán o fueron revelados entre las Partes antes o durante la vigencia de este Acuerdo.
13.1.2. “Trade secrets” means, without limitation and without regard to form, any technical or non-technical information, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, financial plans, product plans, potential customers or suppliers, etc., and any information which is not commonly known or available to the public, and which: (a) has economic value, actual or potential; and (b) is the subject of reasonable efforts under the circumstances to maintain its secrecy. Trade secret specifically includes all Software and any information described under the relationship and especially that which the disclosing party treats as its property or designates as a “trade secret”. The term “Trade Secret” does not include any materials or information of the types specified above to the extent that such materials or information: (z) are or become publicly known to or generally used by others; or (y) as established by documentary evidence, are known to the other party, prior to receipt of such materials or information from the party claiming ownership; or (x) are provided to third parties by the party claiming ownership without restriction on disclosure; or (w) are rightfully received from a third party without breach of this Agreement or such third party’s confidentiality obligations. Failure to mark any trade secret as confidential shall not affect its status as a trade secret under this Agreement.
13.2. Both Parties acknowledge and agree that Proprietary Information obtained from the other party as a result of this Agreement, prior to or during its execution, shall remain the sole and exclusive property of the disclosing party. Exposure as a “receiving party” by a Party to the other Party’s confidential information or receipt of the Proprietary Information does not confer upon them any license, interest or right of any kind in or to the Proprietary Information, except as provided under this Agreement. The Parties may use the Proprietary Information solely to perform their obligations under this Agreement. Neither Party shall disclose the Proprietary Information to any third parties other than employees and contractors who necessarily require such information to perform their obligations under this Agreement. Licensee shall return to Licensor or its Authorized Distributors, as the case may be, upon request of Licensor or such Authorized Distributor, the Proprietary Information and all materials developed by Licensor that contain or are based on the Proprietary Information.
13.3. Licensee shall cause each employee, subcontractor, employee of all subcontractors, authorized reseller and employee of all authorized resellers who are exposed to Proprietary Information to execute a confidentiality agreement containing substantially the same terms as this Article, and a copy thereof shall be delivered to Licensor within a reasonable time after its execution. The Parties shall require any recipient of Proprietary Information to comply with the restrictions of this Agreement with respect to the Proprietary Information before such Proprietary Information is disclosed to the recipient.
13.4. Subject to the terms set forth herein, the Parties shall protect Proprietary Information with the same degree of protection and care exercised in protecting their own confidential and proprietary information, but in no event less than reasonable care. With respect to Proprietary Information that does not constitute a Trade Secret, this Article shall continue upon termination of this Agreement for a period of ten (10) years. With respect to Trade Secrets, this Section shall continue so long as such Trade Secrets meet the definition of “Trade Secrets” as set forth in subsection 15.1.2 above.
13.5. Nothing in this Agreement shall prohibit or limit the use of the information if the Party intending to use it establishes that (i) at the time of disclosure hereunder, such information was generally available to the public; (ii) after disclosure hereunder, the information became generally available to the public, except for breach of this Agreement by such Party; (iii) the information was in the possession of the recipient on a non-confidential basis and was not obtained directly or indirectly from the owner of such information or any Affiliate; (iii) the information was in the possession of the recipient on a non-confidential basis and was not obtained directly or indirectly from the owner of such information or any Affiliate, as evidenced by the recipient’s written records; or (iv) the information is made available to a third party who is not legally prohibited from disclosing such information, provided that such information was not acquired directly or indirectly from the owner or any Affiliate.
Clause XIV: Termination.
14.1. Termination for Default. Either party shall have the right to terminate this Agreement if the other party fails or neglects to perform any of its obligations hereunder, provided that the breach cannot be cured or, if capable of cure, is not cured within seven (7) days after notice of such breach has been given by the performing party, or within such further cure period as the performing party may, in its sole discretion and for such further cure as the performing party may, in its sole discretion and for such further cure, grant in the particular case. Furthermore, Nawaiam shall have the right to terminate this Agreement, without notice or intimation, if Licensee fails to perform, in whole or in part, the payment obligations hereunder within thirty (30) calendar days after the payment in question are due. Termination of the Agreement for this reason shall in no event entitle Licensee to seek indemnification or prevent the debt from accruing interest until full payment.
14.2. Acts of Insolvency. Any Party may terminate this Agreement effective immediately by written notice to the other Party, and may regard such Party as in default of this Agreement, if it becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceeding under any bankruptcy or insolvency Law, whether domestic or foreign, or has wound up or liquidated substantially all its business, voluntarily or otherwise. However, this shall not prevent the terminating Party from asserting a claim as creditor in any insolvency proceedings or from filing an involuntary petition to initiate the proceedings.
14.3. Rights and Obligations of the Parties on Termination. Upon the termination of this Agreement on any grounds, without the need for express permission and within five (5) business days of being notified of the termination of this Agreement by any of the Parties, each Party shall return to the other Party all Confidential Information of the other Party, including, without limitation, software, papers, materials, and other property of the other Party then in its possession.
14.4. Survival. The terms of this Agreement which by their nature must extend in time – and beyond the term hereof – shall survive any termination or expiration of this Agreement. This particularly applies to, but is not limited to, the rights and duties of confidentiality of both Parties as set forth in Article XV and the intellectual property rights that Nawaiam owns in the Software and any other products that are included within its intellectual property.
Clause XV: Taxes.
15.1. Taxes. Licensee shall be responsible for the payment of all taxes in connection with this Agreement, except for any taxes based on the gross income of Licensor and its authorized distributors. Licensor shall be responsible for withholding, paying and reporting any and all applicable statutory, state or local income, employment and other taxes imposed by any jurisdiction.
Clause XVI: Miscellaneous
16.1. This Agreement constitutes a complete and definitive agreement between the Parties on its subject matter, and supersedes any instrument, draft, exchange of notes, letter of intent or oral agreement
16.2. The Parties agree that, if for any reason or circumstance any provision of this Agreement or any part thereof is considered invalid and unenforceable, such declaration shall not be extended to the remaining clauses, for which reason, the rest of this Agreement shall remain in full force and effect, as mutually agreed by the Parties. The present provision shall be applicable regardless of the authority which, in the event that any of the Clauses herein instituted are found to be invalid or unenforceable, be it judicial, administrative or any other competent body or entity in the matter.
16.3. The parties agree that any acceptance made by any of the parties other than what is established in this Agreement shall not constitute any novation, extension or modification whatsoever of what has been agreed. Correlatively, any extension or modification in the agreed terms shall not imply novation of the obligations assumed by each of the Parties.
16.4. Moreover, the Parties agree that, in the absence of the exercise of a right granted to any of the parties, it shall not be interpreted, in any case, as an implied waiver of the exercise of such right by the party on whose behalf it was recognized or conferred.
16.5. Dispute Resolution. Except as provided below, all disputes resulting from or relating to this Agreement that cannot be resolved by negotiations between the Parties shall be submitted to mediation in accordance with this Section. Completion of such mediation shall be a condition precedent to the commencement of any action pursuant to this Agreement. If the parties are unable to reach an agreement on their dispute within fifteen (15) business days after the earlier of the date on which one party notified the other of its desire to attempt to resolve the dispute, then the dispute shall be immediately submitted to mediation by a single mediator chosen by mutual consent of Licensor and Licensee. If the parties cannot agree on a mediator, Licensor shall appoint one individual and Licensee shall appoint another, and those two individuals jointly shall select a mediator. The mediation shall take place in the City of Buenos Aires. This obligation of the parties to submit any dispute arising out of or relating to this Agreement shall survive the expiration or earlier termination of this Agreement. Notwithstanding the foregoing, either party may seek an injunction or other appropriate relief from a court to preserve the status quo with respect to any matter pending the conclusion of the mediation, but shall not be permitted to stay or impede the progress of the mediation. If the parties are unable to reach an agreement through the above mediation process, either party may instead attempt to seek judicial resolution of the dispute. From the time either party requests to submit a dispute to mediation and until the satisfactory resolution of such dispute, this Agreement shall remain in effect, in accordance with the common understanding of the Parties. In this regard: the party requesting mediation shall notify the other party by reliable means of its intention to continue to perform its obligations under this Agreement. Upon receipt of such notice, the notified party shall send its response by reliable means within 24 hours, stating whether or not it will continue to perform its own obligations. To the extent that such party does not intend to continue to perform its obligations, this Agreement shall terminate, without prejudice to the liability perform the Agreement; or, alternatively, if the Parties decide to continue performance of their obligations, other than under the terms of this Agreement, they shall indicate in writing the scope and content applicable to their contractual obligations under these special circumstances. Failure to respond shall be construed as a continued performance of obligations unless and until notice is given by reliable means to the contrary or other grounds for termination pursuant to this Agreement.
Governing Law and Jurisdiction. The parties agree that this Agreement and all matters arising directly or indirectly out of or relating to this Agreement shall be governed by and construed in accordance with the Laws of the Argentine Republic, without giving effect to any choice of law rules that may require the application of the Laws of another jurisdiction. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY TO THIS AGREEMENT. The parties agree that the exclusive jurisdiction and venue for any action relating to this Agreement shall be a federal or state court in the Autonomous City of Buenos Aires and the parties hereby agree to jurisdiction and venue.
16.7. Assignment. Any Party may assign any of its rights or delegate any of its obligations under this Agreement, but shall obtain the written consent of the counterparty in order for the assignment or delegation to be binding. Any attempted transfer, assignment or sublicense of this Agreement without prior written consent may be void and void ab initio. This Agreement shall be binding upon and inure to the benefit of Licensor, Licensee and their respective successors and permitted assigns.
16.8. No delay or omission by Nawaiam in exercising any right, power or privilege hereunder shall impair any such right, power or privilege, nor shall any single or partial exercise of any such right, power or privilege preclude any subsequent exercise thereof. The rights and remedies provided herein are cumulative and not exclusive of any rights or remedies Nawaiam may have under applicable law.
16.9. All notices, consents, waivers and other communications under this Agreement must be in writing and shall be deemed to have been duly given when: (a) delivered by hand (with written confirmation of receipt); or (b) when received by the addressee, if sent by certified or registered mail, return receipt requested or a nationally recognized express delivery service (receipt requested) to, in the case of Licensor, the appropriate addresses below (or such other addresses as Licensor may designate by notice to Licensee):
– Nawaiam: Ayacucho 1744, sixth floor, apartment “B”, of the Autonomous City of Buenos Aires.
– Licensee / User: The address or e-mail address -indistinctly- given at the time of taking the service and/or any product provided by Nawaiam.
16.10. Third-Party Beneficiaries. This Agreement is solely between, and may be performed only by, Licensor and Licensee, and, subject to the “Indemnification” Article hereof, shall not be deemed to create any rights in third parties, including suppliers, customers or subcontractors of a party, or to create any obligations of a party to such third parties.
16.11. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original but all of which together shall constitute a single document.
16.12. Electronic Signatures and Records. The parties may convert this Agreement into an electronic record and, in the event of any dispute involving this Agreement, a copy of such electronic record may serve as the original. The parties consent to conduct business through electronic transactions and acknowledge the validity, enforceability and admissibility of any electronic record or any click to accept or electronic signature created in connection with this Agreement. An electronic record of this Agreement and any click-to-accept or electronic signature made in connection with this Agreement shall be deemed to be hand-signed by the parties.
16.13. Primary Contacts. For the purposes of all communications between the Parties under this Agreement, and except for those communications to be made by sufficiently reliable means, the Parties designate the following contacts:
-Nawaiam: electronic contact at https://nawaiam.com/contacto/.
-Licensee: the contact shall be the email address used by Licensee, or any of its Users, when first accessing the Platform and registering for use and access. Such contact may be modified by Licensee with the prior express consent of Licensor.