LICENSE TERMS AND CONDITIONS

The License Terms and Conditions of this Agreement define the conditions under which the Supplier provides the Customer with the Platform and all associated services, with the scope detailed in the Sales Orders. 

These License Terms and Conditions may be completed or amended by specific conditions set out in the Sales Orders. 

It is the Customer´s responsibility to ensure that the Services are suitable for its own needs, based on the information provided by the Supplier prior to the signature of this Agreement.

1    DEFINITIONS

1.1    To the extent that they are not already defined in the Front Sheet, capitalised terms in these Licence Terms and Conditions shall have the following definitions, whether they appear or not in the text with a capital letter, in the singular or plural, and shall be subject to the following rules of interpretation in this Agreement.

Affiliates means in relation to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with that Party from time to time.

Applicable Laws means all applicable laws, statutes, enactments, orders or regulations or other similar instruments of general application and any other rules, instruments or provisions in force from time to time and any rules, codes of conduct or codes of practice stipulated by any Regulator to which either Party is subject from time to time.

Authorised Users means the Customer's employees, including part-time or temporary workers, secondees and other staff from time to time engaged exclusively in their role working for, or directly in relation to, the Customer or the Customer's Affiliates and any other third parties authorised in writing by the Supplier.

Automatic Renewal Terms mean subsequent term extensions for which the Agreement is automatically and tacitly renewed after the Initial Term or a previous Automatic Renewal Term. Automatic Renewals are contractually mandatory periods for both Parties.

Business Day means any day other than Saturday, Sunday or public holiday in the jurisdiction in which the Supplier is registered as a company.

Confidential Information means any and all information relating to either Party or its Affiliates, Customers, customers, business plans or affairs, which information is proprietary and confidential to the disclosing Party. Confidential Information shall include technology, trade secrets, information, know how, and affairs of either Party, including but not limited to the content of the Platform, any document marked “Confidential”, or any information which the recipient Party has been informed is confidential or which it might reasonably expect the other Party would regard as confidential.

Customer Data means any data inputted, uploaded, provided or otherwise submitted to the Platform by the Customer, or by any third-party on the Customer's behalf, including by any Authorised Users, or the Supplier by any means.

Customer Materials means the trademarks, data, written content, documents and any other materials or information owned by or licensed to Customer that are provided to the Supplier by, or on behalf of, the Customer and are used by the Supplier in connection with this Agreement.

Documentation means the documents that may be made available to the Customer by the Supplier from time to time by any means (including electronically, in hard copy or via the Supplier's portal or knowledge base system) which sets out a description of the Platform and/or Services and the user instructions for the Services.

Effective Date means the date described in the Main Contract Terms of the License and Services Agreement Form. 

Fees mean License Fees and other fees and expenses payable by the Customer to the Supplier under this Agreement. Fees will be detailed in the Sales Orders.

Initial Term means the initial period under which the Customer is granted the right to use the Services. The Initial Term starts on the Effective Date and ends on the End Date of the Initial Term set out in the Front Sheet. The Initial Term is a contractually mandatory period for both Parties.

Intellectual Property Rights means patents, trademarks, service marks, trade names, design rights, copyright, database rights, rights in know-how and Confidential Information and other intellectual property rights or equivalent forms of protection of whatever nature arising anywhere in the world, whether registered or unregistered and including applications for the grant of and any right to priority in respect of any such rights.

Licence Fees mean software license fees payable by the Customer to the Supplier under this Agreement.

Licence Terms and Conditions mean the terms and conditions contained in this Agreement, which may be updated from time to time.

Minimum Commitment of Sites under Contract mean the minimum number of Sites that shall be invoiced for each Licensing Period. According to clause 3.8, the Customer may only reduce the number of operational Sites at the end of the Initial Term or at the end of each Automatic Renewal Term. No reductions shall be permitted during a Term.

Non-Supplier Materials means any materials, including documents or information provided, controlled or owned by or on behalf of a third-party, the use of which is subject to a separate agreement or licence between the Customer and the relevant third-party.

Permitted Purpose means the Customer´s operational processes and business analytics management.

Platform means the current version of the Supplier's password-protected web-based portals, related local and mobile applications, interfaces and/or APIs or web services which are made available to the Customer with the scope set out in the Sales Orders, and any future versions of any applications or web services that the Supplier agrees to provide to the Customer from time to time in accordance with the terms of the Agreement.

Sales Order means any order signed by the Customer for the provision of the Services linked to this Agreement.

Regulator means any regulator with regulatory or supervisory authority in respect of a Party in any jurisdiction.

Services means the provision of the Platform including all related versions and updates. The Services also include any other services or software applications provided by the Supplier to the Customer from time to time.

Sites mean discrete profit or cost centres at which Customer conducts business operations (including but not limited to physical venues, virtual venues, equity and/or franchise venues, or offices) to which Services are provided according to Sales Orders.

Site Activation Date means the date in which a Site is configured in the Platform by Supplier as requested by Customer.

Software Bundle means a set of functionalities of the Platform licensed jointly by Supplier. According to clause 3.8, the Customer may only reduce the number of operational Software Bundles at the end of the Initial Term or at the end of each Automatic Renewal Term. No reductions shall be permitted during a Term.

Solution refers to the commercial name of a group of functionalities of the Platform designed to provide tools to manage a specific business area.

Support Services Policy means the Supplier's policy for providing support in relation to the Services and available at https://mapal-os.com/en/company/support-policy-en

Supplier means Mapal Group, represented by the specific legal entity that will invoice all Software Bundles, Services, and Fees to the Customer. Mapal is a registered trademark of the group of companies formed by the following companies: Mapal Software S.L., with registered office at C/Arte, 21, floor 6, Madrid, CP 28033, Spain; Flow Hospitality LTD, with registered office at Apex 3, 2nd floor (rear office), 95 Haymarket Terrace, Edinburgh, EH12 5HD, United Kingdom; Ideolys SAS, with registered office at 52 Rue Jacques-Yves Cousteau, 8500 La Roche-sur-Yon, France; GetCompliant 2013 AB, with registered office at Hornsbruksgatan, 23b, Stockholm, Sweden.

Term means the Initial Term and the Automatic Renewal Terms.

Virus means any malicious software, code, file or program which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

Websites means any Supplier´s websites or other means by which the Platform may be accessed by the Customer as will be set out the relevant Documentation.

1.2    Clause, schedule, and paragraph headings shall not affect the interpretation of this Agreement.

1.3    A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).

1.4    A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5    Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.

1.6    Unless the context otherwise requires it, a reference to one gender shall include a reference to the other genders.

1.7    A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.

1.8    A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.

1.9    A reference to “written” or “in writing” includes e-mail but not faxes.

1.10    References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.


2    LICENCE AND SERVICES

2.1    In consideration of the Fees, Supplier:

(a)    hereby grants to the Customer a non-exclusive, non-transferable, royalty-free licence during the Term, for the Authorised Users to use the Platform for the Permitted Purpose at the Sites subject to the terms and conditions of this Agreement; and

(b)    shall during the Term perform or provide the Services in accordance with this Agreement.

2.2    The Customer is not authorized to sublicense the license granted by Supplier under this Agreement.

2.3    If the Parties agree that the Supplier shall provide the Customer with any additional services or software that are not set out in Sales Orders, the Parties shall execute a new Sales Order, describing the scope of the additional services.

2.4    The Customer shall use the Platform in compliance with the minimum technical requirements (user workstations, computer servers, compatible devices, type of Internet connection, compatible browser, etc.) as provided from time to time by the Supplier. These requirements may change over time, particularly for technical reasons.

2.5    The Platform may be freely modified by the Supplier including improvements and/or updates, that it may deem necessary from a technical, regulatory, aesthetic, commercial or for any other reason.

2.6    Except otherwise specified in the relevant Sales Order, Supplier will provide support services for the Platform according to the Support Services Policy, which may be updated by the Supplier from time to time.

3    FEES

3.1    All the Software Bundles, Services, and Fees that shall be initially invoiced by the Supplier at the Effective Date for the first Licensing Period (prepaid model), according to the relevant Sales Order. For additional Software Bundles, Services, Sites and Fees the Parties shall agree a new Sales Order.

3.2    All Fees shall be paid by direct debit to the bank account indicated in the Customer section of the Front Sheet of the Agreement. Any cost for rejected direct debits shall be born by the Customer.

3.3    If the Customer requires the Supplier to upload or submit invoices through any internal or external invoicing system designated by the Customer, the Parties shall execute a new Sales Order setting out the additional Fee applicable to such processing and the resources required from the Supplier.

3.4    The Supplier shall provide one Platform for each Customer, in case the Customer requests additional Platforms the Parties shall agree a new Sales Order that shall regulate an extra Fee, according to the resources that the Supplier shall implement in relation to the aforementioned additional Platforms. 

3.5    All Fees are exclusive of VAT and any other applicable taxes, which shall be added to the relevant invoices at the prevailing rate.

3.6    In accordance with the continuous investments of the Supplier for updating the technology of the Platform, the Supplier reserves the right to update the Fees once a year. 

3.7    Without prejudice to any other right or remedy that it may have, if the Customer fails to pay Supplier any sum due to Supplier pursuant to the Agreement on the date due, the Supplier may charge interest on such sum from the due date for the payment at the annual rate of 10 percentage points above the Central Bank of Europe base lending rate, accruing on a daily basis until the payment is made. Likewise, the supplier may share the Company data (legal entity and/or tradename, address and company number), as described by the Front Sheet, with credit references agencies in accordance with local laws.

3.8    The Customer may add additional Sites, Software Bundles and Services to this Agreement by means of a new Sales Order. To activate additional Sites requested after the signature of the License Agreement, as long as the same conditions are maintained (if agreed by both Parties) an email from the Customer requesting the activation of new Sites shall be sufficient.

3.9    The Customer may only reduce the number of operational Sites and/or reduce the licensed Software Bundles at the end of the Initial Term or at the end of each Automatic Renewal Term. No reductions shall be permitted during a Term.

3.10    In addition to the terms of the clause 3.6, in case the Supplier introduces new versions/ features or functionalities that improves the performance of the Platform significantly, the Supplier reserves the right to update the Fees accordingly by means of the relevant communication to the email account provided by the Customer in the field “Customer Contact” of the Front Sheet. Any such Fee adjustment shall apply only prospectively.

3.11    If necessary, the Supplier may add a Statement of Work into the provisions of the relevant Sales Order with the purpose of defining the scope of works, the deliverables and/or other concepts that had not been regulated in that Sales Order, where applicable.


3.12    SPECIAL FEES

•    STORAGE

Within the Solutions Workforce, Facilities, Analytics, CashRec and Docs, the Customer may store documents associated with various operational records and/or processes (including, without limitation, cash sheets, proposals, incidents and employee files). A total storage allocation of up to 3GB is included at no additional cost. If the Customer requires additional storage capacity, this may be increased in increments of 15GB. The applicable monthly fee for each increased storage shall be invoiced as follows:  

Up to additional  15GB                       £13,26/ month 
Up to additional  30GB                      £21.70/ month 
Up to additional  45GB                      £28,99/ month 
Up to additional  60GB                      £32,55/ month 
 Above 60GB , the monthly price will increase at a rate of £4.22 per month for every additional 15 GB of storage.
 

•    TIME & ATTENDANCE SYSTEM
 

Time & Attendance (“Smarthub”) devices are provided on a rental basis, which includes installation, support and remote maintenance. Upon termination of the relevant Service for any reason, the Customer shall, at its own cost, return all Smarthub devices to the Supplier within sixty (60) days, using the return method and destination designated by the Supplier.

Devices must be returned in good working order, fair wear and tear excepted. Failure to return the devices within this period, or returning devices that are damaged beyond fair wear and tear, shall entitle the Supplier to charge the Customer the replacement cost of £1672,07 per device.
 

•    ALLOWANCES
 

Where the Customer explicitly requests the Supplier to provide on site Services through one of its Agents, any travel, accommodation and subsistence expenses shall be invoiced separately according to the following Fees:

•    Travel expenses (including fuel, tolls and parking) shall be charged at:
£36.17 for travel within the same city as the Supplier’s domicile; and  
£96,47 for travel to other cities within the same country.

•    Flights, train tickets or any other means of public transportation shall be charged at cost, duly justified with receipts.  

•    Rental car expenses shall also be charged at cost, duly justified.

•    Daily allowances per Agent shall be charged as follows:
• Without overnight stay (meals only): £48.21 within the Supplier’s country of domicile, and £72,29 outside that country.  
• With overnight stay (including meals and accommodation): £204,97 within the Supplier’s country of domicile, and £289,36 outside that country.
 

•    SPECIAL DEVELOPMENTS AND/OR INTEGRATIONS
 

Where the Customer requests any special custom developments and/or integrations, the Parties shall execute a new Sales Order specifying the scope, estimated effort and applicable Fees. If the Customer subsequently requests additional custom developments and/or integrations that require further effort beyond the initially agreed scope, an additional Sales Order shall be executed prior to the continuation of any such work.


4    CUSTOMER UNDERTAKINGS


4.1    The Customer undertakes that it shall not provide access to the Services to anyone other than the Authorised Users.

4.2    In relation to the Authorised Users, the Customer undertakes that:

(a)    each Authorised User shall keep a secure password for his/her use of the Services and Documentation, and each Authorised User shall keep his/her password confidential;

(b)    the Supplier or the Supplier's designated auditor shall audit the Services and Platform from time to time in order to establish that the Customer and its Authorised Users are using the Services in compliance with the terms of this Agreement, including to ensure that the name and password of each Authorised User and the Customer's data processing facilities to audit compliance with this Agreement. The Customer shall provide all assistance, information, materials and documents reasonably requested by the Supplier in respect of such audits or as otherwise requested to assess the Customer's compliance with the terms of this Agreement. Customer shall be responsible for any misuse or overuse of the Services duly evidenced by the audit results, and

(c)    it accepts and shall grant access to the Supplier to Customer Data for the purposes of providing the Services, to exercise its rights under clause 4.2(b) above and/or to provide support.

4.3    The Customer undertakes and agrees with Supplier at all times to:

(a)    act at in relation with Supplier dutifully and in good faith and in accordance with the terms of this Agreement;

(b)    without prejudice to clause 7, keep confidential the commercial terms of the Agreement;

(c)    respect the Intellectual Property Rights of the Supplier;

(d)    not, and procure that none of the Authorised Users shall, use the Services for anything other than the Permitted Purpose nor in a manner that:

(i)    is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(ii)    facilitates illegal activity;

(iii)    depicts sexually explicit images;

(iv)    promotes unlawful violence;

(v)    provides access to, or Confidential Information in respect of the Platform or the Services, to the Supplier's competitors;

(vi)    is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

(vii)    is otherwise illegal or causes damage or injury to any person or property;

(e)    that it shall not:

(i)    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:
-     attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform or Services and/or Documentation (as applicable) in any form or media or by any means; or
-     attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform; or

(ii)    use the Services and/or the Documentation to develop itself or in conjunction with others or promote on its own account, any service, technology or product which competes with the Platform and/or Services; or

(iii)    use the Services and/or Documentation to provide services to third parties; or

(iv)    license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third-party except the Authorised Users, or

(v)    attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 4; or

(vi)    introduce or permit the introduction of any Virus into the Supplier's network and information systems.

(f)    that it shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify the Supplier.

(g)    that it shall:

(i)    obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;

(ii)    ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time, or, in the event such network and systems are not compliant, it acknowledges that it shall be responsible for the cost of any third-party software which the Supplier determines is required to be installed on the Customer's network and systems in order to allow use of the Services by the Customer; and

(iii)    be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for:

-     procuring, maintaining and securing its network connections and telecommunications;

-     ensuring that it grants the relevant permissions and takes all other steps required to ensure that the Services and Platform are able to be used as intended on the Customer's systems (including through disabling any applicable firewalls and other security technologies as required). The Supplier accepts no liability if the Customer is unable to fully utilise or access the Services dues to its system configuration or security tools; and

-    all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the Internet.

4.4    The Supplier 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 clause 4.2.

4.5    The proper performance of the Agreement and the smooth running of the Services require loyal, active and permanent cooperation between the Parties. To this end, the Customer shall provide the Supplier with all the information that is necessary for the performance of the Services and shall inform the Supplier of any difficulties that it may be aware of or that its knowledge of its field of activity allows it to foresee, as the Services are being performed, in order to implement the best solution as soon as possible. Customer shall designate a reference person among its staff, that will be in charge of the implementation of the Platform to communicate with the Supplier.

4.6    The Customer undertakes to provide access to its premises to perform the Services, on its usual working days and hours and/or, at the express request of the Supplier for a valid reason, outside the said days and hours.

5    TERM AND TERMINATION

5.1    This Agreement shall commence on the Effective Date and shall continue for the Term.

5.2    Either Party may terminate this Agreement at the end of the Initial Term by sending the other Party a written notice at least three (3) months prior to the end of the Initial Term, otherwise this Agreement will automatically be extended for successive Automatic Renewal Terms. Shall the Initial Term be less than three (3) months, the above-mentioned prior notice period will be fifteen (15) days.

5.3    After the Initial Term, either Party may then terminate this Agreement at the end of each Automatic Renewal Term by sending the other Party a written notice at least three (3) months prior to the end of the relevant Automatic Renewal Term.

5.4    The Initial Term and each of the Automatic Renewal Terms are mandatory contractual periods. The Parties acknowledge that this is an essential condition of the Fees set forth in the Sales Orders and that such prices would not have been agreed by Supplier without this condition. Accordingly, should Customer terminate the Agreement before the end of the Initial Term or the relevant Automatic Renewal Term, all Fees and expenses corresponding to such term shall be fully due and invoiced, and no reimbursement or credit will be made by the Supplier. In case the Sales Order defines special discounts, the Supplier shall invoice the relevant amounts that were established by the standard Fee without the discounts, from the Effective Date until the end of the mandatory contractual period.

5.5    During the Term each of the Parties may, without prejudice to any other rights it may have, terminate the Agreement by notice in writing to the other with immediate effect if the other Party:

-     Commits a material breach of the Agreement and, if capable of remedy, fails to remedy the breach within 30 Business Days of a written notice requiring it to do so. In case of doubt, any non-payment of the invoices issued by the Supplier legitimately shall be considered as a material breach of the Agreement.

5.6    On termination of the Agreement, howsoever caused:

(a)    the licence granted to the Customer pursuant to clause 2.1 shall immediately cease to have effect and the Customer shall, and shall procure that each of the Authorised Users shall, immediately cease to use the Platform;

(b)    Upon termination of this Agreement, and provided that there is no legal obligation requiring its retention, the Supplier will permanently delete all personal data of the Customer hosted on the Platform. Prior to such deletion, the Customer will be notified sufficiently in advance so that he/she may, if he/she so wishes, download his/her documents, files or any other available information.

(c)    After the period indicated in such notice, the information will be securely destroyed, ensuring that no accessible copy or backup remains, except in those cases where it is necessary to retain it for legal, contractual or auditing reasons.

(d)    Information which does not contain personal data, and which has not been processed through the Platform but which has been provided by the Customer by other means (e.g. email, external transfer or other channels) will also be securely destroyed, applying the same principles of disposal as described above.

(e)    Finally, in those cases in which the Customer's data includes Personal Data, the Supplier guarantees that it will act in accordance with the provisions of Schedule 1: Data Processing Agreement “DPA” always complying with the Applicable Data Protection Regulations in effect.
 

5.7    Termination of the Agreement, howsoever caused, shall be without prejudice to any rights or liabilities of either Party accrued at the date of termination.

6    INTELLECTUAL PROPERTY 

6.1    The Customer hereby acknowledges that all Intellectual Property Rights in the Platform, the Services, Documentation and the Websites is the property of Supplier or its licensors and nothing in the Agreement shall have the effect of transferring any such rights to the Customer. The Customer’s sole rights in relation to the Platform and Services shall be the licence set out in Clause 2.1.

6.2    The Customer undertakes not to, and shall procure that no Authorised User shall, copy, challenge or interfere in any way with Supplier’s or its Affiliates Intellectual Property Rights, whether during or after the term of the Agreement and without prejudice to the generality of the foregoing the Customer shall not disassemble, copy, reverse compile, modify or alter the Platform or Services or create derivative software based on the Platform or Services.

6.3    Supplier acknowledges the ownership of (including, without limitation, ownership of all Intellectual Property Rights in) any Customer Materials shall remain vested in the Customer or its licensors. The Customer hereby grants Supplier and its licensors a non-exclusive licence during the Term to use the Customer Materials solely for the purposes of preforming its obligations under the Agreement.

6.4    To the extent Non-Supplier Materials are made available to, or used by or on behalf of the Customer or any Authorised User in connection with the use or provision of the Platform and/or Services, where notified to the Customer, such use of Non-Supplier Materials (including all licence terms) shall be governed by applicable third-party terms notified or made available by the Supplier or the third-party and not by this Agreement.

6.5     All Intellectual Property Rights in any updates, modifications, extensions, improvements, adaptations, translations, or upgrades of the Platform and/or Services shall be exclusively owned by the Supplier and the Customer hereby waives any rights to the same.

6.6    The Supplier may use any feedback and suggestions for improvement relating to the Platform and/or Services provided by the Customer or any Authorised User without charge or limitation ("Feedback"). The Customer hereby assigns (or shall procure the assignment of) all Intellectual Property Rights in the Feedback with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to the Supplier at the time such Feedback is first provided to the Supplier at no cost to the Supplier.

7    CONFIDENTIALITY AND DATA PROTECTION

7.1    Each of the Parties undertake to maintain the confidentiality of any Confidential Information always concerning the other Party or the other Party’s Affiliates and to keep the Confidential Information of the other Party and the other Party's Affiliates secure and protected against theft, damage, loss or unauthorised access. Neither Party shall at any time, whether during the Term of the Agreement or at any time thereafter, without the prior written consent of the other Party, use, disclose, exploit, copy or modify any of the other Party’s Confidential Information, or authorise or permit and third Party to do the same, except as permitted by clause 7.2.

7.2    Each Party may disclose the Confidential Information of the other Party or the other Party's Affiliates:

(a)    to its employees, officers, representatives, contractors, sub-contractors or advisers who need to know such information for the purposes of exercising the Party's rights or carrying out its obligations under or in connection with this Agreement. Each Party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other Party's confidential information comply with this clause 7; and

(b)    as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

7.3    No Party shall use any Confidential Information of the other Party or the other Party's Affiliates for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.

7.4    Customer’s data will be processed in accordance with Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (GDPR) for the purpose of providing the contracted service. The Customer may exercise the rights to information, access, rectification, objection, erasure, restriction of processing, and portability, and not to be subject to automated individual decisions, by sending a written and signed request to: dpo@mapal-os.com. Customer also have the right to lodge a complaint with the relevant Supervisory Authority. Notwithstanding the foregoing, and in relation to the personal data of this service, the Parties agree that the Supplier will act as the data processor and the Customer as the data controller, as stipulated in Data Processing Agreement. And that, as indicated therein, the Supplier may use the Customer's Data in anonymised form to conduct studies, benchmarking and/or market analysis and may integrate such anonymised Customer Data with other anonymised information as part of the Services provided by the Supplier.

7.5.    The Customer's data as well as this Agreement will be kept for a maximum period of ten (10) years in order to comply with the obligations set forth in the applicable legislation on the prevention of money laundering, both local and international.

8    LIABILITY

8.1    Except as expressly and specifically provided in this Agreement:

(a)    the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction, or any use of the Platform by Customer that does not comply with the minimum requirements as provided from time to time by Supplier;

(b)    the Customer assumes sole responsibility for its compliance with all Applicable Laws that may apply to the Customer from time to time (including any employment or labour related laws) and the Supplier does not warrant that the Customer's use of the Platform and/or Services will enable or assist the Customer's compliance with any Applicable Laws;

(c)    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

(d)    the Services and the Documentation are provided to the Customer on an "as is" basis.

8.2    The Supplier shall bear no responsibility for the quality and electronic transmission of data of any kind when it goes through telecommunications networks and, more generally, for the quality and reliability of telecommunications links between the workstations of Authorized Users and the access point to the Platform.

8.3    Subject to clauses 8.1, 8.2 and 8.3, the Supplier shall not be liable to the Customer in contract, tort (including negligence), delict (including negligence), breach of statutory duty, pre-contract or other representations, or otherwise, arising out of or in connection with the Agreement for (a) any consequential, indirect or special loss or damage; or (b) any loss of goodwill or reputation, loss of profits, loss of anticipated savings, loss of anticipated revenues, loss of business opportunity in each case whether advised of the possibility of such loss or damage and howsoever occurring.

8.4    Subject to clauses 8.1, 8.2 and 8.3, the total aggregate liability of Supplier arising under or in connection with the Agreement shall in no event exceed the amount of Licence Fees received by Supplier from the Customer in the three (3) months preceding the point of notification to Supplier by the Customer of the event or circumstance giving rise to a claim against Supplier.

8.5    The Supplier 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 Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, pandemics, epidemics, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

9    CUSTOMER DATA

9.1    Customer owns and retains all rights to the Customer Data.

9.2    The Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

9.3    The Supplier shall follow industry standard archiving procedures in respect of the Customer Data. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up (in accordance with the procedures set out in the Support Services Policy) of such Customer Data maintained by the Supplier. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third-party.

9.4    Customer Data may include personal data,in such event both Parties will comply with the terms of Schedule 1 Data Processing Agreement “DPA”

9.5    Supplier undertakes to take appropriate security measures to ensure the security of the Customer Data so that it cannot be distorted, damaged or accessed by unauthorized third parties.

9.6    The Supplier may use Customer Data for the purpose of operating and improving the Services and for the development and marketing of new services, tools and features.

9.7    The Supplier may compile any anonymized statistical information regarding the provision of the Service to the Customer. The Supplier shall own all intellectual property rights to the results of such statistical processing.

10    SUPPLIER'S OBLIGATIONS

10.1    The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation, as well as with reasonable skill and care and any support will be provided in accordance with the Support Services Policy.

10.2    The undertaking at clause 10.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or modification or alteration of the Platform and/or Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 10.1.

10.3    The Supplier:

(a)    does not warrant that:

(i)    the Customer's use of the Services will be uninterrupted or error-free; or

(ii)    that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements or comply with Applicable Laws.

(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 and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities, except as set out in the Support Services Policy.

10.4    This Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

10.5    The Supplier has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

10.6    The Parties expressly agree that the limitations of liability continue to apply even in the event of nullity, termination or termination of the Agreement.


11    THIRD PARTY PROVIDERS

The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Supplier makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third-party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third-party, and not the Supplier. The Supplier recommends that the Customer refers to the third-party's website terms and conditions and privacy policy prior to using the relevant third-party website. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

12    ANTI-MONEY LAUNDERING AND ANTI-BRIBERY
 

12.1    The Customer confirms that it conducts due diligence on its own customers, business partners, and other stakeholders to ensure strict compliance with all applicable laws and regulations regarding the prevention of money laundering and corruption in business in the jurisdiction in which this Agreement is entered into and performed. To this end, the Customer shall implement and maintain effective policies and procedures to identify, prevent, and, where appropriate, report any financial or criminal activity that may be suspicious in the context of the performance of this Agreement. In this regard, the Customer warrants that it is the legitimate holder of the bank account specified in this Agreement and that the funds used within the framework of the contractual relationship with the Provider are derived from lawful activities. Likewise, the Customer agrees to provide, if requested by the Provider, the necessary documentation proving such ownership, as well as any other information reasonably requested in compliance with current regulations on the prevention of money laundering and combating the financing of terrorism.

12.2    The Customer acknowledges that the Provider may adopt the appropriate verification and control measures established by applicable law, including, where appropriate, the suspension or termination of the Agreement in the event of non-compliance with the obligations established herein or the detection of signs of suspicious transactions.

12.3    The Customer also agrees to indemnify, defend, and hold harmless the Provider, its directors, employees, agents, and assignees, against any claim, penalty, fine, loss, damage, or expense, including reasonable legal fees, that may arise, directly or indirectly, from any breach by the Customer of the legal and/or regulatory provisions relating to the prevention of money laundering. This obligation to indemnify will also include the costs arising from the actions necessary for compliance with or execution of regulatory or judicial measures associated with the violations committed by the Customer.

13    GENERAL

13.1    Conflict
If there is any conflict or ambiguity between the terms set out in the Front Sheet, any Sales Order related with this Agreement, and the terms set out in these Licence Terms and Conditions or the Schedules, the order of priority shall be: (i) a term contained in the Front Sheet; (ii) a term contained in the specific conditions of the Sales Order; (iii) a term contained in these Licence Terms and Conditions; and (iv) a term contained in the Schedules.

13.2    Variation
The Supplier shall reserve the right to modify the present License Terms & Conditions by means of the relevant  communication to the email account provided by the Customer in the field “Customer Contact” of the Front Sheet.

13.3    Waiver
No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

13.4    Assignment
The Customer may not assign any or all of its rights and obligations under the Agreement without the prior written consent of Supplier (not to be unreasonably withheld). The Supplier may, at any time, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement, including to its Affiliates.

13.5    Entire Agreement

(a)    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.

(b)    Each Party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.

(c)    Each Party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.

13.6    Severance

(a)    If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

(b)    If one Party gives notice to the other of the possibility that any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

13.7    Notices

(a)    Any notice required to be given under this Agreement shall be in writing and shall be sent by email to the other Party at its address set out in the Front Sheet of this Agreement, marked for the attention of the Customer Contact or the Supplier contact (as indicated by the Party).

(b)    In the event the Customer requests the termination of all the Software Bundles, Services and Fees of the License and Services Agreement, the Customer shall have the following link available  https://mapalos-churnrequest.powerappsportals.com/

(c)    Any notice given or documents provided under or in connection with this Agreement shall be in the English language. All other documents provided under or in connection with this Agreement shall be in the English language or accompanied by a certified English translation. This version may be translated into another language if requested by Customer and the cost of such translation will be charged to Customer

13.8    Publicity

Without prejudice to the confidentiality provisions at clause 7, the Customer hereby consents to the Supplier publicising or using the work performed under this Agreement as a promotional vehicle in brochures, websites and other public platforms for presentation to potential Customers or for publication in the media.

13.9    Non-Solicitation
In order to protect the legitimate business interests of the Supplier and Customer, the Customer agrees not to solicit, entice or induce, or endeavour to solicit, entice or induce, any employee of the Supplier ("Restricted Person") with a view to employing or engaging the Restricted Person, or employ or engage, or offer to employ or engage a Restricted Person of the Supplier for a period of 12 months after termination or expiry of this Agreement, without the prior written consent of the Supplier. Without prejudice to the Supplier's ability to seek damages or claim injunctive relief, in the event of a breach of this clause, the Customer shall pay to the Supplier by way of liquidated damages an amount equivalent to one year's basic salary (plus any bonus(es) received in the previous year) or the annual fee (plus any bonus(es) received in the previous year) that was payable by the Supplier to the Restricted Person plus the recruitment costs incurred by the Supplier in replacing such person. The Parties confirm that these liquidated damages are reasonable and proportionate to protect the legitimate interest of the Supplier in performance.

13.10    Third Party Rights
Except as otherwise provided in this Agreement, no one other than a Party to this Agreement, personal representatives, successors, permitted transferees and the Supplier's Affiliates, shall have any right to enforce any term of this Agreement.

13.11    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).

13.12    Governing Law and Jurisdiction
The Agreement shall be governed and constructed in accordance with the Governing Law (as set out in the Front Sheet) and the Parties irrevocably agree that the courts within the Jurisdiction (as set out in the Front Sheet) shall have exclusive jurisdiction in respect thereof.