General Terms of Use Version Date: December 17, 2018 These EXE Software Terms of Use (“Terms” or “Agreement”), including any applicable DEMO, Addendums, Annexes, Exhibits, etc., constitute a legal agreement between you or your employer or other entity on whose behalf you enter into this Agreement (the “Customer”) and EXE Software. YOU MUST READ AND AGREE TO THESE TERMS PRIOR TO DOWNLOADING AND/OR USING THE SERVICE. BY CLICKING ON THE “ACCEPT” BUTTON, SIGNING AN ASSOCIATED ORDER FORM, OR DOWNLOADING, INSTALLING AND/OR USING THE SERVICE, YOU ARE AGREEING TO BE BOUND BY THE TERMS ON BEHALF OF CUSTOMER. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER/COLLABORATOR/REPRESENTATIVE OR ANOTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AS THE CUSTOMER. YOU MAY NOT ACCESS THE SERVICE IF YOU ARE AN EXE Software COMPETITOR, EXCEPT WITH THE PRIOR WRITTEN CONSENT OF EXE Software. If you register for a Free DEMO, the Terms will also govern your use of the Service during that period. EXE Software may amend these Terms from time to time by posting an amended version at its website or Microsoft Platform. Client’s continued use of the Service following the effective date of an amendment will confirm Client’s consent thereto. 1. Definitions. 1.1 PLATFORM is the term used to define the esFields software solution. 1.2. IMPLEMENTATION is the instance, customization and additional development done on the esFields Platform for a particular client or case. The implementation is accessible only by EXE Software and a set of client/clients. 1.3. CLIENT is the juridical entity with whom EXE Software will potentially have a contractual relationship with the terms and conditions agreed separately. 1.4. LICENCE is the right of usage of the implementation by a particular individual. Licenses are purchased from EXE Software per implementation and per client. 1.5. CLIENT USERS are individuals hired/contracted by the CLIENT to use the platform and services. They are subject to their agreements with the CLIENT and are in no agreements with EXE Software. Client users require a license in the implementation and have access to it. 1.6. SUPPORT STAFF are individuals hired/contracted by EXE Software dedicated to maintain the operations of the esFields Platform in all its’ implementations. 1.7. CLIENT DATA is data inserted in the platform implementation by the client or by the support staff as requested and directed by the client. Client data is available to the client, the client user, the support staff and anyone else who has access to the platform implementation in which the data is inserted. WARNING! Client data should not be inserted in the DEMO implementation of the platform. 1.8. USER DATA is client data that contains personal identification information about client users and is subject to GDPR. 1.9. ACCESS is a client or potential clients’ possibility to access a particular implementation of the platform. Access is given by support staff to a particular implementation or by client users within the clients’ implementation. 1.10. DEMO is the platform implementation example in which potential clients have access to a demonstration environment of the platforms’ capabilities and features. This implementation does not support a particular clients’ operations. WARNING! Client and user data inserted in the DEMO by potential clients, is visible by other potential clients. 1.11. POTENTIAL CLIENTS are any legal entities or individuals that have an interest in the platform and have access to the DEMO environment or are on the path to getting access to the DEMO. 1.12. SERVICE is the ability provided by EXE Software to the CLIENT to use and leverage the agreed upon features and capabilities of the platform in a particular instance created for the CLIENT. 1.13. CONNECTED SERVICES are activities done by EXE Software to provide the CLIENT with the SERVICE. They include and are not limited to: implementation, customization, additional development, hosting, technical support, devices and telecommunication services. Some of the connected services are subcontracted by EXE Software and are subject to limitations. 2. Service 2.1. Provision of Service. EXE SOFTWARE will grant access to a platform implementation for a client based on a contractual agreement that specifies the terms and conditions of that particular implementation. The access is provided through licenses and is subject to limitations imposed by connected services. (ex: hosting outage) 2.2. Additional Client Users. Additional licenses may be provisioned as per the request of the CLIENT. Licenses offered by EXE Software are provided on a monthly basis for a period of 1 or 2 years or are purchased one time. 2.3. Demo usage. The demo implementation is designed from a marketing perspective as a place in which potential customers can experience the esFields platform. Access is not restricted based on licenses and is granted to any potential clients. 3. Use of the Service. 3.1. EXE Software Responsibilities. EXE Software shall use commercially reasonable efforts to make the Service generally available 24 hours a day, 7 days a week, as defined in future commercial agreements with the client and as permitted by third party providers. EXE Software shall: (i) ensure access to the implementation of the client; (ii) provide technical support and future developments and customization of the implementation as per the clients’ request; (iii) provide consultancy of emerging technical or legal requirements as they become known to EXE Software. 3.2. Client Responsibilities. Client is responsible for all activities that occur within their implementation. Client shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify EXE Software promptly of any such unauthorized use; and (iii) comply with all applicable laws in using the Service. (iv) fulfill all payments and obligations to EXE Software. 3.3. Demo Platform Access. Access is provided to the demo environment by request to EXE Software. You will need to contact us and through this process you will need to provide contact information to EXE Software. EXE Software support staff will grant you access to the Demo implementation based on your needs and business specifics. Access to the implementation will be done based on username and password. 3.4. Demo Use Guidelines. The demo implementation is available to clients via Google Play store, Microsoft AppSource and other such environments. Being an open presentation space, potential clients have access simultaneously to the same implementation and can see the same data. EXE Software advises that sensitive information should not be inserted in this implementation by anyone. Users of this implementation should refrain from inserting personal data, company sensitive information, product information, company clients list or other such information. The implementation also provides a chat system for demo purposes. WARNING! Access to the demo implementation will be restricted to any users who misuse the chat system or other features in illegal activities or activities that disturb the experience of other users in the Demo implementation. 3.5. Third-Party Providers. EXE Software will provide connected services like hosting via Microsoft Azure cloud, device and telecommunication services via Vodafone or Orange. Third-party services are subcontracted by EXE Software for the client and will be delivered to the client as per EXE Software responsibilities and Client responsibilities. 4. Security and Data Privacy. 4.1. Protection of Customer Data. EXE Software has adopted and will maintain industry-standard administrative, physical, and technical safeguards designed to protect the security, privacy and integrity of Client Data. 4.2. Client security. The client is responsible for the security of their implementation and will need to ensure working procedures that limit access to the system and data available. Security features of the platform will be configured as per the requirements of the client and include: login credentials, activity log, roles and access management, user management. 4.3. Employee personal data. Employee personal data will be stored in the esFields platform for purposes of identification and activity tracking. Employee personal data includes and is not limited to: name, surname, phone numbers, email addresses, GPS location tracking. Employee personal data can be deleted from the system as requested by the Client. Clients are advised to create and maintain working procedures to get employee permission for using their personal data, limit personal data gathering (ex: GPS location outside working schedule) and personal data deletion once the data is no longer required for legal and valid reasons. 4.4. Third party personal data. The esFields platform can be used by the Client to record third party personal data. It is the sole responsibility of the Client to ensure that the data collection, management and usage is done respecting all legal provisions and requirements. 5. Proprietary Rights. 5.1. Reservation of Rights. Client acknowledges (a) that in providing the Service, EXE Software utilizes (i) the esFields name, the esFields logo, the esFields domain name, the product and service names associated with the Service, and other trademarks and service marks; (ii) certain audio and visual information, documents, software and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, “esFields Technology“) and (b) that the esFields Technology is covered by intellectual property rights owned or licensed by EXE Software (collectively, “EXE Software IP Rights“). Other than as expressly set forth in this Agreement, no license or other rights in or to the esFields Technology or EXE Software IP Rights are granted to the Client, and all such licenses and rights are hereby expressly reserved. 5.2. License Grant. EXE Software grants Clients and its Users a worldwide, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicenseable right to access and use the Service in accordance with the terms of this Agreement. EXE Software reserves the right, with reasonable notice to the Client, to audit the Client’s use of the Service to ensure compliance with the terms of the Agreement. 5.3. Restrictions. Client shall not (i) modify, copy or create derivative works based on the Service or esFields Technology; (ii) allow non-Users to access information contained inside an esFields Database without sufficient esFields licenses; (iii) access the Service via any sort of ‘bot’ or ‘script’; or (iv) disassemble, reverse engineer, or decompile the Service or esFields Technology, or access it in order to (A) build a competitive product or service, (B) build a product or service using similar ideas, features, functions or graphics of the Service, or (C) copy any ideas, features, functions or graphics of the Service. 6. Confidentiality. 6.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party“) disclosed to the other party (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Service, the EXE Software Technology, business and marketing plans, technology and technical information, screen and product designs interoperability of the Service with third-party products and software, and business processes. Confidential Information (except for Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party. 6.2. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. 6.3. Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. The Receiving Party shall, except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein for the protection of Confidential Information. The Receiving Party shall be responsible for any use or disclosure of Confidential Information by any of its, and its Affiliates’, employees, contractors and/or agents. 6.4. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted). 6.5. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 7, the defaulting party shall indemnify the injured. Compensation to refer only to the direct and proved damage suffered by the injured party recorded because of negligence of the party that brakes its obligation. 7. Mutual Indemnification. 7.1. Indemnification by EXE Software. Subject to this Agreement, Exe Software shall: (a) defend, or at its option settle, any claim, demand, action or legal proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Service as contemplated hereunder infringes the intellectual property rights of a third party, (b) pay - (i) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement - (ii) those damages agreed to by EXE Software in a monetary settlement of such Claim; provided, that Customer (a) promptly gives written notice of the Claim to EXE Software; (b) gives EXE Software sole control of the defense and settlement of the Claim (provided that EXE Software may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (c) provides to EXE Software, at Exe Software’ reasonable cost, all reasonable assistance. Customer will have the right to participate in the defense, including retention of and/or advice of separate counsel, at its own expense. 7.2. Indemnification by Customer. Subject to this Agreement, Customer shall: (a) defend, or at its option settle, any Claim made or brought against EXE Software by a third party alleging that the Customer Data or Customer’s unlawful use of the Service (as opposed to the Service itself) infringes the intellectual property rights of, or has otherwise harmed, a third party (b) pay - (i) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or - (ii) those damages agreed to by Customer in a monetary settlement of such Claim; provided, that EXE Software (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases EXE Software of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance. EXE Software will have the right to participate in the defense, including retention of and/or advice of separate counsel, at its own expense. 8. Limitation of Liability. 8.1. Limitation of Liability. Except for a violation of section 5 (proprietary rights), section 6 (confidentiality), or liability arising from section 7 (mutual indemnification), neither party’s liability with respect to any single incident arising out of or related to this agreement will exceed aggregate liability of total amount paid or payable by the client for 12 month of contract, the price practiced by EXE Software. The above limitations will apply whether an action is in contract or tort and regardless of the theory of liability. 8.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. 9. Term & Termination. 9.1. Term of Agreement. This Agreement commences on the once it is agreed upon by the Client and continues until all User licenses granted in accordance with this Agreement have expired or been terminated. 9.2. Term of User Subscriptions. User licenses commence on the start date specified in a separate contract with the client and continue until the specified term. 9.3. Uninstall and Delete. Upon termination or expiration of this Agreement, Client will uninstall and delete, from all Client desktop, mobile, server, web and other environments, any EXE Software provided software related to the Service. This includes managed packages or other software that has been installed in Customer environments. 9.4. Termination for Cause. EXE Software reserves the right to terminate the usage of the platform to any client, which shows ill intent, illegal usage of the platform or creates a bad experience to other potential clients that are simultaneously using the Demo implementation. We encourage potential clients to use the Demo implementation only for its intended use of presenting the capabilities of the esFields platform in a business context. 9.5. Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 5, 6, 7, 8. 10. General Provisions. 10.1. Relationship of the Parties. This Agreement does not create a franchise, joint venture, agency, and fiduciary or employment relationship between the parties. 10.2. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. 10.3. Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after sending by office@exesoftware.ro. 10.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. 10.5. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. 10.6. Governing Law. This Agreement shall be governed exclusively by the internal laws of the European Union and Romania, without regard to its conflicts of laws rules. 10.7. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms executed hereunder, constitute the entire agreement between the parties, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict between the provisions in this Agreement and any exhibit or addendum hereto, or Order Form executed hereunder, the terms of this Agreement shall prevail to the extent of any inconsistency, except with regard to any provision of any exhibit, addendum or Order Form that specifically identifies a conflicting provision of this Agreement and states that the conflicting provision of this Agreement does not prevail.