December 22, 2020
If the End User and AXAZURE have entered into a separate written agreement that sets forth the terms and conditions of use and license concerning the Product or other specific services or software (other than solely agreeing to price and duration of the license), then the terms of that agreement shall take precedence where it conflicts with these Terms.
AXAZURE means ÉLITE DE NEGOCIOS TECNOLÓGICOS SL, a Spanish corporation, doing business under the name of Axazure and which is the company providing the Product.
END USER means an authorized user of the Product.
INTELLECTUAL PROPERTY RIGHTS means (i) patents, inventions, designs, copyright and related rights, database rights, trademarks, trade names (whether registered or unregistered), and rights to apply for registration; (ii) proprietary rights in domain names; (iii) knowhow and confidential information; (iv) applications, extensions and renewals in relation to any of these rights; and (v) all other rights of a similar nature or having an equivalent effect anywhere in the world.
PARTY shall mean either the End User or Axazure individually and PARTIES the End User and Axazure together.
PRODUCT means Axazure’s and/or its licensor’s proprietary Axazure software product used by End User in accordance with these Terms.
3. Right to Use
The Intellectual Property Rights in and to the Product shall belong to Axazure or a third party. The End User shall only receive the license to use the Product as set out in these Terms.
Axazure hereby grants to the End User a non-exclusive, revocable, non-transferable and limited license in accordance with the terms of your separate purchase document.
End User shall not modify, disassemble, decompile or reverse-engineer the Product. Upon the request of End User, Axazure shall submit programming interface information to the extent it is necessary for the integration of Product with third party software or services.
End User shall have the right to use the Product in the Licensee’s internal business operations. The End User may not use the Product to offer bureau service or time-sharing services (including any SaaS service) based on provision of Product to third parties without Axazure’s prior written approval. End User shall have no right to copy the Product or allow it to be copied even for private purposes.
Upon expiration or termination of these Terms, the End User shall, upon Axazure’s request and at Axazure’s option, either destroy or return the Product and any back-up copy and any instructions and other documentation related to the Product provided by Axazure.
The End User represents and warrants that it has the legal authority to accept these Terms and, if the End User is an individual, that he or she is at least 18 years old.
Axazure may change or discontinue, in whole or in part, the Product at any time without notice. You acknowledge that Axazure is not liable to you or to any third party for any such action.
4. Prices and Payment
The End User shall be responsible for all taxes relating to the sales or use of the Product and other possible taxes, including but not limited to value added tax. If the parties have agreed on license fees concerning the use of the Product, monthly interest on any amounts overdue is set at 2.5% or, if lower, the maximum interest allowed by applicable law. Axazure is entitled to suspend the End User’s use of the Product until the End User has paid all overdue payments.
5. Security and Data Protection
End User agrees that it shall comply with all applicable data protection laws, including but not limited to EU General Data Protection Regulation, which relates to End User’s activities or use of data under these Terms. End user shall be liable to obtain all necessary consents for the use of data as required by the applicable law from time to time.
End User shall make the necessary parametric and other measures to prevent any unauthorized or illegal use of the data.
6. Warranty and Limited Liability
THE PRODUCT AND ANY SERVICES PERFORMED BY AXAZURE TO THE END USER WITH RESPECT TO THE PRODUCT ARE PROVIDED ON “AS-IS” AND “AS-AVAILABLE” BASIS, AND AXAZURE AND ITS LICENSORS DO NOT GIVE END USER ANY WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, FOR THE PRODUCT OR SUCH SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, PERPETUAL DURATION, OR NON-INFRINGEMENT.
NEITHER AXAZURE OR ANY OF ITS LICENSORS SHALL BE LIABLE TO THE END USER FOR ANY INCIDENTAL, INDIRECT, COLLATERAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY (WHETHER CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE), INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITY, EVEN IF ADVISED OF THE POSSIBILITY FOR SUCH DAMAGES.
THE AGGREGATE LIABILITY OF AXAZURE, ARISING FROM OR RELATING TO THE PRODUCT AND ANY RELATED SERVICES (REGARDLESS OF THE FORM OF ACTION OR CLAIM, E.G. CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL THEORY) IS LIMITED TO $100. In some locations applicable law may not allow certain of the limitations described above, in which case such limitations will apply to the maximum extent allowed by such applicable law.
7. Intellectual Property Rights
With these Terms, no Intellectual Property Rights will be assigned between the Parties. End User acknowledges and agrees that the Axazure and/or its licensors own all Intellectual Property Rights in the Product.
All Intellectual Property Rights in the materials, in whatever form, that come into existence in connection with or as the result of the use of the Product shall vest in and be the exclusive property of Axazure or its licensors.
For the avoidance of doubt, in the event any third party material, service or standard software is delivered to End User, such third party material or standard software shall be exclusively subject to the terms and conditions of the licensor of the material or software. The third party terms and conditions are supplied to End User separately upon request.
End User retains all Intellectual Property Rights in and to the materials provided by End User to Axazure in relation to the use of the Product and data resulting from the use of the Product. End User grants to Axazure and, to the extent necessary, to its personnel, or shall procure the grant of, a royalty-free, non-exclusive, non-transferable limited license to use such materials to the extent necessary and for the purpose of providing the Product and for marketing purposes.
End User may propose modifications or improvements to all or any part of the Axazure Product. By choosing to disclose such proposal to Axazure, the End User hereby grants Axazure all title and ownership and intellectual property rights to such proposal.
The Parties acknowledge that the Parties may disclose to each other or the Parties may have access to the other Party’s information which may be considered confidential and trade secret information (“Confidential Information”). Confidential Information shall include Product specifications, these Terms and any prices, payment terms, material and information which has been agreed as being or, due to their nature should be understood as, confidential. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is or becomes a part of the public domain through no wrongful act or omission of the other party; (ii) was in the receiving party’s possession before receipt from the party providing such Confidential Information; or (iii) is rightfully received by the receiving party from a third party without any duty of confidentiality. The Parties agree to (i) hold each other’s Confidential Information in confidence, and ii) use the Confidential Information solely for the purpose of this License Agreement. The confidentiality obligation described in this Section 8 shall remain effective for a period of three (3) years from termination or expiration of these Terms. Axazure shall have a right to use the name of the End User and End User’s use of the Product for marketing and investor relation purposes.
9. Infringement of Intellectual Property Rights
Axazure shall at its own expense defend the End User against all claims alleging that the Product infringes the copyrights of a third party, provided that the End User (i) notifies Axazure promptly in writing of such claims and actions; (ii) permits Axazure to have sole control over the defence or settle the claims and actions; and (iii) gives Axazure all reasonable information and assistance available and the necessary authorizations. Axazure shall pay all damages that are finally awarded to a third party if the End User has acted in accordance with the foregoing.
If it is established that, or if in the justified opinion of Axazure, the Product infringes any of the above-mentioned rights of a third party, Axazure shall at its own expense either: (a) obtain the right of continued use of the Product, or (b) replace the infringing parts of the Product, or (c) modify the Product in order to eliminate the infringement. If none of the aforesaid options are available to Axazure on commercially reasonable terms, the End User shall cease to use the Product.
The indemnification obligation set forth in this Section shall not apply to any claim for infringement or violation resulting from:
(a) the combination, operation or use of the Product with any code, programs or hardware not developed or supplied by Axazure pursuant to these Terms (such as third party products) if such claim would have been avoided but for such combination, operation or use;
(b) the use of the Product as modified or enhanced by the End User if such modification or enhancement results in an infringing or violating product, and if the use of the unmodified Product would have avoided such infringement or violation;
(c) the use of the Product in violation of the provisions of these Terms; or
(d) Axazure ‘s inclusion in the Product of any proprietary technology or information that the End User provides to Axazure.
This Section 9 states Axazure’s entire liability with respect to infringement of third party copyrights or other intellectual property rights.
10. Termination and Modification
If you have obtained a paid license, the terms of your license is set forth in the separate purchase document.
Any violation of these Terms by End User gives Axazure the right to terminate your license and these Terms with immediate effect by written notice thereof.
Axazure may modify these Terms from time to time and will update the date appearing at the beginning of these Terms when modifications take place. The most current Terms will be available in the Microsoft AppSource. The End User accepts such modified Terms by continuing to use of the Product.
11. Governing Law and Dispute Resolution
These Terms shall be interpreted and construed in accordance with the laws of Spain, without regard to the principles governing conflicts of law of any jurisdiction. Both Parties shall use their best efforts to settle by amicable negotiations any disputes which may occur between them arising out of or relating to these Terms or the existence, validity, termination, interpretation of any term hereof or either Party’s performance obligations hereunder.
If the Parties fail to reach an amicable settlement of their dispute within 60 days of its initiation, and subject to the limited right to seek an injunction as set forth below, either Party may refer such dispute to binding arbitration to the exclusive jurisdiction of the Courts of the city of Madrid, Spain in accordance with its rules. The arbitration shall be conducted in the English language by a single arbitrator who shall be a professional, legal or otherwise, but shall not be, or have previously been associated with any Party to this Agreement. The arbitral award shall be final, binding and non-appealable.
The aforementioned arbitration proceedings will be the sole and exclusive method of resolving any dispute, difference or question arising out of or relating to the negotiation, execution, performance, or breach of this Agreement, except that that in recognition of the irreparable harm that a violation by either Party of its obligations of confidentiality owed to the other Party, or a breach by one Party of the other Party’s intellectual property rights would cause, the nonbreaching Party may seek an injunction against such violation or breach in a court of competent jurisdiction.
Élite de Negocios Tecnológicos S.L., Av. Fuentemar 20, 28823 Coslada, Madrid, Spain.