MOBITRAXX - TERMS OF SOFTWARE USAGE AND PROVISION OF RELATED SERVICES – SaaS

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By the present clauses of Terms of Use and Licensing of Software and Provision of Related Services - SaaS, in the best form of law, Rondel Desenvolvimento e Licenciamento De Aplicativos Ltda. ME, a legal entity under private law, enrolled under CNPJ 27.920.268 / 0001-06, established in Florianopolis, SC, Brazil, hereon named CONTRACTOR informs the terms of use for the Mobitraxx system to customers of any nature, hereon named SUBSCRIBER.

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CHAPTER 1 - OBJECT

1.1 The purpose of this document is to provide software access service Mobitraxx in the SaaS (Software as a Service) mode, contemplating the LICENSING,  AVAILABILITY, MAINTENANCE and SUPPORT, as specified below:

1.1.1 LICENSING: the assignment of the right to use the Mobitraxx PRO software and its compatibility with a mobile device (smartphone or tablet) to which the SUBSCRIBER requests the licensing;

1.1.2 AVAILABILITY: enable the SUBSCRIBER to access the Mobitraxx software through its own or outsourced infrastructure;

1.1.3 MAINTENANCE: updates and fixes of Mobitraxx software and infrastructure;

1.1.4 SUPPORT: receipt and handling of errors reported by the SUBSCRIBER, generating the respective corrections.

1.2 CONFIGURATION, ADMINISTRATION, TRAINING, CONSULTANCY, IMPLANTATIONS,  LOADING OF DATA, CUSTOMIZATIONS, INTEGRATIONS are not included in the scope of this  agreement, nor any other service or product that is not clearly described on this document, which may be contracted separately.

1.3 The following applications are part of Mobitraxx System: Mobitraxx PRO, Mobitraxx Admin, Mobitraxx Client and Monitore Mobitraxx.

1.4 The CUSTOMER must choose one of the plans offered at the time of contracting the service. The plans are as follows:

PRO EXPRESS - a valid license for 30 days from the date of plan purchase, compatible to Mobitraxx PRO app.

PRO STANDARD - a license valid for 365 days from the date of plan purchase, compatible to Mobitraxx PRO app.

PRO 3 - 3 licenses valid for 365 days from the date of plan purchase, compatible to Mobitraxx PRO app.

PRO 5 - 5 licenses valid for 365 days from the date of plan purchase, compatible to Mobitraxx PRO app.

PRO 10 - 10 licenses valid for 365 days from the date of plan purchase, compatible to Mobitraxx PRO app.

PRO 50 - 50 licenses valid for 365 days from the date of plan purchase, compatible to Mobitraxx PRO app.

LITE EXPRESS - a valid license for 30 days from the date of plan purchase, compatible to Mobitraxx LITE app.

LITE STANDARD - a license valid for 365 days from the date of plan purchase, compatible to Mobitraxx LITE app.

LITE 10 - 10 licenses valid for 365 days from the date of plan purchase, compatible to Mobitraxx LITE app.

1.4.1 - CONTRACTOR is allowed to create new plans not designated here, whose conditions must be clear to the SUBSCRIBER at the time of hiring.

1.4.2 - The renewal of plans is automatic, and the CUSTOMER may cancel this renewal at any time.

 

CHAPTER 2 – PRICES, PAYMENT, BILLING AND PRICE ADJUSTMENTS

2.1 Billing and payment prices and conditions are specified on the CONTRACTOR's website or in a specific Commercial Proposal.

2.2 All amounts associated with the licensing will be monetarily restated according to the  inflation index of the country where the contracting took place.

2.3 The payments agreed in the specific Commercial Proposal related to the object of these Terms of use will always be made on the first business day after the plan purchase.

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CHAPTER 3 – PENALTIES AND TAXES

3.1 After 3 (three) days from the due date, in the absence of payment of the contracted plan,  the CONTRACTOR reserves the right to interrupt, regardless of any notice or communication,  the service provision, by blocking the service (s) of the plan in question, rendering the SUBSCRIBER not entitled to any indemnity, in any way
whatsoever. Reactivation will occur within 48 hours after payment of the due amount.

3.2 The CONTRACTOR reserves the right not to accept new accounts, configurations, or requests for services from the SUBSCRIBER, if the SUBSCRIBER is in debt.

3.3 The payment of taxes, fees and contributions of any kind, relating to this Agreement, shall  be the responsibility of the taxpayer, as defined by  law. The CONTRACTOR declares that the  prices indicated in the Commercial Proposal / Invoice / Website include all taxes and charges pertaining to this type of transaction.

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CHAPTER 4 – SERVICE PROVISION CONDITIONS

4.1 LICENSING:

4.1.1 Through this agreement, only the right to use the system is assigned to the SUBSCRIBER without the need to submit or provide the source code or system internal structure.

4.1.2 These terms replace previous terms and previous contracts, which are automatically  terminated.

4.1.3 The intellectual property on the Mobitraxx Software is not subject to this agreement and remains as exclusive CONTRACTOR’s property.

4.1.4 The licensing contemplated by this instrument is directed only to the SUBSCRIBER in a  non-exclusive manner.

4.1.5 The SUBSCRIBER is strictly forbidden to reproduce, distribute, alter, reverse engineer or attempt in any way to reverse any of the components of the Mobitraxx Software to its source code.

4.2 AVAILABILITY of access to the Mobitraxx Software:

4.2.1 The CONTRACTOR, provided that the SUBSCRIBER's obligations under this agreement are  met, aims to offer and intends to keep 98% of the Mobitraxx software available in a 24  hours a day, 7 days a week, not accounting for this index  the following events:

1. Failure to use or server overload caused by non-optimized use by the SUBSCRIBER;

2. Failure of the connection provided by the telecommunications company in charge ofthe service, thus exempting the CONTRACTOR of any responsibility;

3. CUSTOMER infrastructure failures, including, but not limited to, browser software, antivirus, and other updates that may cause incompatibility with the CONTRACTOR's structure;

4. Failures caused by software, server or operating system malfunction and, if applicable, by failures caused by the outsourced hosting service provider;

5. The interruptions necessary for corrections, technical adjustments or maintenance, which will be notified in advance whenever possible;

6. Emergency interventions resulting from the necessity to preserve the security of the server, intended to prevent or stop hackers attacks or aimed at
   performing security corrections. In such cases the CONTRACTOR is authorized to disconnect the server from the Internet, if necessary;

7. Suspension of the rendering of services contracted by determination of competent authorities, force majeure or by non-compliance with clauses of this contract;

8. Overcoming by the SUBSCRIBER of the limit of the maximum capacity of use of the Hard Disk;

9. Interruptions or malfunction caused by force majeure or by third parties such as (but not limited to) domain registration agencies, DNS synchronization, etc

10. Time used by the SUBSCRIBER to validate error corrections;

11. Stops or restores data backups.

4.2.2 The CONTRACTOR will make available by default one (1) login / password to the SUBSCRIBER for access to Mobitraxx Admin and the Mobitraxx PRO settings.

4.2.2.1 It is the responsibility of the SUBSCRIBER to make the internal settings in their network  environment (eg DNS, firewall, etc.) in order to access the applications.

4.2.3 The CONTRACTOR carries out the daily "Backup", only for the use of contingencies, of the files that make up the media, logs, and databases on the server. If a “RESTORATION" is  necessary, the restored data will be those obtained on the PREVIOUS DAY of the event and will

be made available in the shortest possible time after the fault correction.

4.3 MAINTENANCE and SUPPORT:

4.3.1 The entire process of configuring the infrastructure of the remote servers and installing  the necessary software to make the contracted service available will be carried out exclusively  by the CONTRACTOR. This process is transparent to the SUBSCRIBER, who will only use  Mobitraxx applications.

4.3.2 Support by phone: it can be available in some countries, provided in the local language.

4.3.3 Support in the SUBSCRIBER’s facilities: in no case the CONTRACTOR is obliged to provide assistance in the SUBSCRIBER’s facilities, and if this occurs it will be a mere courtesy from the CONTRACTOR.

4.3.4 Deadlines for first response to problems in the system: system problem is any  malfunction of the system itself or unavailability of the system, not fitting in this case  events related to requests for new configurations by the SUBSCRIBER, customizations in the  software, etc…

4.3.5 Problems that need correction may fall into one of the following severities, for which the response deadlines are agreed upon:

High Priority: system is not able to be operated or is not functional, it is not possible for the SUBSCRIBER to operate the system or perform some essential function for which Mobitraxx is commonly used. In this situation, the CONTRACTOR undertakes to answer within 8 business hours.

Medium Priority: Some system functions are not operational or the system displays errors, but it is possible to operate it and its functionality, although impaired, is not committed. Service answered within 20 business hours.

Low Priority: Minor errors such as display problems or reports, minor issues that do not influence the operation and functionality of the system.

Responses to requests made up to 80 working hours.

4.3.6 Calls opened by the SUBSCRIBER with HIGH severity should be analyzed together with the CONTRACTOR, for a consensus on this degree of urgency.

4.3.6.1 CORRECTION shall mean any change in system programming due to the malfunction of its functions.

4.3.6.2 Other cases of service such as: doubts, clarifications, consultancies, requests that are not classified as a problem in the system, are not covered contract, even if some of these services may be courtesy, however, without commitment of service time

4.3.7 Remote access to the SUBSCRIBER may be necessary to verify the problem. If this is not possible, the service may be canceled, without any charge to the CONTRACTOR.

4.3.8 New functions or new features suggested by the CUSTOMER may be incorporated into Mobitraxx at the sole discretion of the CONTRACTOR, not constituting the present contract of this nature. When analyzed and classified as viable by the CONTRACTOR, the implemented suggestions and Mobitraxx enhancements are available in later versions at the time of your launch.
4.3.8.1 In case of urgency by the SUBSCRIBER for some new implementation previously approved by the CONTRACTOR, a budget containing term s and amounts will be generated by the CONTRACTOR, and should be paid in value apart from this contract agreement.
4.3.8.1.1 On the occasion of the release of a new release or version, although the same most of the previously approved customizations, it is not CONTRACTED to make the implementation contracted to part of it, the SUBSCRIBER being subject to the possible adaptation and implementation costs of the version previous to the latest one.

4.3.8.1.2 These custom implementations are not descriptive in the product manual and the support and partners may not be aware of them, and the CONTRACTOR is free of requirements.

4.3.8.2 By providing suggestions for the software, THE SUBSCRIBER also grants the CONTRACTOR permission to reproduce, distribute, and use your suggestions and comments products and other materials that the CONTRACTOR, in its sole discretion, may to determine.

4.3.9 The costs for telephone contacts and others involved in the service will always be responsibility of the CUSTOMER..

4.3.10 The CONTRACTING PARTY will receive complete training on the system, by scheduling with the CONTRACTOR at no cost. If the CONTRACTOR does not comply with the schedule more than once or it is necessary to repeat the training, it may be provided upon payment of a technical hour fee according to the current table.

 

CHAPTER 5: CONFIDENTIALITY

5.1 CONTRACTOR and SUBSCRIBER are mutually obliged to respect the right of ownership and confidentiality regarding accessed information, as well as not to transfer to third parties, in whole or in part, unless prior authorization of each other.

5.2 All studies carried out, projects and instructions issued by the CONTRACTOR, for the good and faithful performance of the service, shall not be used, reproduced or communicated to third parties, for purposes other than the contractual object, without express authorization from the CONTRACTOR.

5.3 All information provided by SUBSCRIBER or CONTRACTOR, with the written classification of "CONFIDENTIAL", will be mutually considered as such, which will be committed directly or through its directors and employees, not to disclose or transmit to third parties.

5.4 The CONTRACTOR also assures to keep confidential all information of the SUBSCRIBER to which it has access, as a result of the provision of the services under this agreement.

5.5 Further details can be seen in our privacy policies.

 

CHAPTER 6 – CONTRACTOR RESPONSIBILITIES

6.1 The CONTRACTOR is responsible for:

6.1.1 Provide Data Center infrastructure compatible with the number of users described in the Business Proposal.

6.1.2 Provide licenses for the Mobitraxx Software as described in the Commercial Proposal.

6.1.3 Keep the Mobitraxx Software updated during the term of the agreement, applying any corrections

6.1.4 Proactively monitor the Data Center infrastructure and act in a preventive manner

6.1.5 Provide technical support services as described in this agreement.

 

CHAPTER 7 – SUBSCRIBER RESPONSIBILITIES

7.1 It is the responsibility of the SUBSCRIBER:

7.1.1 The installation, configuration and maintenance of the necessary equipment for the correct display of Mobitraxx software in its facilities (smartphones, tablets, browsers, workstations, network equipment, cables, internet, etc.), within the characteristics and procedures recommended by the CONTRACTOR.

7.1.2 Provide software and hardware updates compatible with the updates requirements made available by the CONTRACTOR.

 

CHAPTER 8 – DURATION AND TERMINATION

8.1 This agreement is valid for as long as the plan is effective , and may be from 30 days to one year. The renewal of this agreement takes place through renewal and payment of every purchased plan. Failure to pay the plan leads to termination of the contract.

8.2 The CONTRACTOR reserves the right to terminate this agreement definitively after 30 (thirty) days of the annuity renewal, at which time all data and configurations of the mobile device whose license has not been renewed will be excluded from the servers, regardless of any notice or communication, and without the SUBSCRIBER being entitled to any indemnity, in any way. Other mobile devices under the SUBSCRIBER login / password linked to plans still valid will not change.

 

CHAPTER 9 – GENERAL PROVISIONS

9.1 Duties of Conduct - The relationship between the Parties because of the Contract, and for the purposes set out therein, in accordance with the principles of good faith, probity, trust and loyalty, each Party being refrained from adopting conduct that damages the interests of another.

9.2 Declaration of Confidentiality - The parties mutually agree to keep confidential all information classified as confidential which they have access to due to the contract.

9.3 The SUBSCRIBER can not deny or impute to another, authorship for the intellectual development of the CONTRACTOR's work, when divulging it to third parties.

9.4 The SUBSCRIBER authorizes the CONTRACTOR to use their name and logo as a success case in advertising materials and on the CONTRACTOR's website.

9.5 The SUBSCRIBER may not disclose the results of any performance testing of the Mobitraxx software or system, without the prior written consent of the CONTRACTOR.

 

CHAPTER 10 – RESTRICTIONS OF LIABILITY

10.1 Mobitraxx software is provided "as it is" without any other warranty. The SUBSCRIBER assumes all risks and responsibilities for choosing the software to achieve the desired results, as well as for the use of the results obtained through the software. The CONTRACTOR does not guarantee that the software is free of errors, interruptions or failures, or that it is compatible with any specific hardware. To the maximum extent permitted by applicable law, the CONTRACTOR disclaims all warranties, whether express or implied, including, without limitation, implied warranties of merchantability, fitness for a purpose, and non-infringement of software and written materials.

10.2 The CUSTOMER hereby acknowledges that Mobitraxx software may not be available for a variety of reasons, including, without limitation, periodic system maintenance (programmed or not), nature manifestations, technical software failures, telecommunications infrastructure, or delay or interruption caused by viruses, denial of service attacks, increase or fluctuation of demand, actions and omissions of third parties or any other cause that is beyond the CONTRACTOR's control. Therefore, the CONTRACTOR expressly disclaims any express or implied warranty regarding the availability, accessibility or performance of the system and / or software.

10.3 The SUBSCRIBER assumes the total cost of any damages for the use of the MOBITRAXX software, for the information contained or compiled by the software and for the interaction (or lack of interaction) with any other hardware or software, provided by the CONTRACTOR or third parties. To the maximum extent permitted by applicable law, under no circumstances will CONTRACTOR, its suppliers and licensors be liable for any damages (including, without limitation, damages for lost profits, business interruptions, loss of business information, loss of intangible assets, interruption work, breakage, damage or failure in hardware or software, repair costs, loss of working time or other pecuniary loss) arising out of the use or malpractice in using the software, or incompatibility of the software with any hardware, software or type of use.

10.4 Even if, for safety and convenience, the CONTRACTOR maintains backups of the data registered by the SUBSCRIBER in the Mobitraxx software during the term of this agreement, it is the customer's responsibility to make their own backup copies in the most appropriate format.