LICENSE TERMS AND CONDITIONS FOR “SOFTWARE AS A SERVICE” SERVICES
 

This Terms and Conditions (“Terms”) are applicable and legally binding for all “Software as a Service” services provided by SOFTCO. This Terms are a legal agreement effective from the day of purchase of the services (the “Effective Date”), is made by and between SOFTCO COMPUTING MANAGEMENT, S.A. DE C.V., with a principal place of business at Av. Paseo de la Reforma #250 Torre B Piso 25, col. Juarez, del. Cuauhtémoc, Ciudad de México, (“SOFTCO”), and      , a       corporation with a principal place of business at       (“Client”). 

1.	Definition
All terms defined below that are capitalized, whether used in singular or plural, are used with the following meaning:
“Affiliates” means any entity that, directly or indirectly, controls, is controlled by or is under common control with SOFTCO or Client (where "control" means, with respect to any entity, the possession, directly or indirectly, of the power to direct, cause or otherwise control the direction of the management and policies of such entity), whether through the ownership of voting securities (or other ownership interest), by contract or otherwise.
“Terms” means this Terms and any of its annexes, appendices and/or amendments. 
“Documentation” means any document relating to the Services, including without limitation, help screens, functionalities and service levels, which are provided electronically to the Client and updated from time to time by SOFTCO. 
“Data” means any data, information or material, including Personal Data, provided or submitted to SOFTCO or inserted in the Service by the Client and/or the users of the Client in the course of using the Service.
“Order Form” means an ordering document describing the Services, as well as the commercial, financial, and other specifications to the Services, issued and governed in conformance with this Terms.
“Party” means either the Client or SOFTCO, which may be collectively referred to as the “Parties”.
“Service(s)" means the product or the services that are ordered by the Client under an Order Form and made available online by SOFTCO. 

2.	Scope of Use.
2.1 Grant of Services. SOFTCO grants to the Client a non-exclusive and non-transferable license to access the Service and use it in conformance with this Terms and the Documentation.
2.2 Scope of the Services. SOFTCO will use commercially reasonable efforts to make the Services available as set forth in the Order Form except (a) during the maintenance periods which Client will be informed with a fifteen (15) days’ prior notice or (b) pursuant to (i) any circumstances beyond SOFTCO’s reasonable control such as the disruption of the Internet and any other event set forth in Section 12.5 “Force Majeure”; (ii) an abnormal, fraudulent or improper use by the Client of the Service or any unauthorized access to the Service by a third-party, requiring the interruption of the Service for security reason; (iii) any intrusion or fraudulent access to the Service by a third-party, or illegal data mining despite the implementation of security measures using current technology. In the event of the interruption of the Services pursuant to the foregoing events, SOFTCO will, make every effort to minimize the impact and will use commercially reasonable efforts to restore the Service in a timely manner whenever such causes have ceased.
2.3 Subscription. Services are purchased as subscriptions and shall commence and expire according to the period set forth in the Order Form. 
2.4 Subscription term. Unless otherwise agreed by the Parties in the Order Form, the subscription term will be of one (1) year from the commencement date of the Service. Any extension of the subscription term shall be subject to written mutual consent in an amendment incorporated by reference into the Terms. 
2.5 Access to the Service.
2.5.1User credentials: SOFTCO will provide the Client with the user credentials to be used by the Client administrator, who will be in charge to create credentials for the Client’s users.
The Client is responsible for ensuring the secrecy of its logins and passwords. SOFTCO cannot be held responsible for any consequences that may arise from the usage of the credentials by anyone other than the intended user.
In the event of any loss or non-authorized disclosure of the credentials by the Client, the Client shall inform SOFTCO in writing without delay. For security reasons, Client hereby accepts that SOFTCO, acting reasonably, is entitled at any time to force the change of a password or to close a login access. 
2.6 Restrictions. The Client will not make the Service available to any third-parties except to its Affiliates which are listed in the Order Form (if any) and will not license, sublicense, sell, resell, rent, lease, loan, lend, transfer, assign, distribute or otherwise make available the Service by any means whatsoever or use it as a service bureau, as an application service provider, to perform consulting or training services for any third-party or in any commercial time-share arrangement. Client shall cause its Affiliates to comply with the terms of this Terms and shall be liable for any breach by its Affiliates. 
Client shall not modify, adapt, decompile, disassemble, reverse engineer the Service, or create or prepare derivative works based upon the Service or any part thereof, and will not remove or destroy any proprietary markings or restrictive legends placed upon or contained in the Service. 
Client may not use the Service in contravention to any applicable law or mandatory regulations.  
The Client agrees not to transmit any content that contains computer viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any software, computer or telecommunications equipment.
The Services are subject to the usage limits set forth in this Terms, the Documentation and specifically in the Order Form, such as the number of accesses, the functionalities, the users’ profiles and any other parameters defined therein and Client will not attempt to modify the scope of the Services. 
The Client further agrees to immediately report any incident to SOFTCO concerning access to the Service. The Client also agrees not to interfere with or disrupt the Services, including SOFTCO's or SOFTCO’s hosting provider servers and to comply with the recommendations, procedures and rules that will be communicated to Client by SOFTCO from time to time for the appropriate use of the Service.

3.	Price, Invoicing and Payment. 
3.1	Fee. In consideration of the provision by SOFTCO of the Services set forth in the Order Form, the Client will pay a subscription fee on a yearly basis which amount is specified in the Order Form.
The Client acknowledges that the fee for the subscription period is not cancellable or refundable and the Services purchased cannot be decreased during the subscription period, unless otherwise agreed in writing by SOFTCO. 
3.2	Invoicing and Payment. The Services will be invoiced annually in advance upon the subscription starting date. All invoices are due net thirty (30) days from the invoice date. Any invoice not paid on time shall give full entitlement to SOFTCO to suspend all or part of the Services.
3.3	Taxes.  The fees and costs are expressed net of tax and the applicable taxes will be applied by SOFTCO upon invoicing. In the event that any payment to be made in respect of any invoice is subject by law to any withholding tax, the amount of fees owing to SOFTCO shall be grossed up by an amount necessary to ensure that SOFTCO receives the amounts stipulated in the Order Form after payment of the withholding tax.
3.4	Suspension of the Services. If any amount due by the Client is more than thirty (30) days overdue, SOFTCO may, after giving the client a fifteen (15) days’ prior notice sent by registered mail, suspend the Services until such amount is paid in full. 

4.	Intellectual property
4.1 Intellectual Property. SOFTCO reserve all their right, title and interest in and to the Service, including their respective intellectual property rights. No rights are granted to the Client hereunder other than as expressly set forth herein. 
SOFTCO represents and warrants that it holds the intellectual property rights to grant access to the Service and that the use of the Service in conformance with the Documentation does not infringe any third-parties’ intellectual property rights. The Client undertakes to comply with the use restrictions for the Service described herein, the Order Form and the Documentation.
4.2 Trademarks. Client is strictly prohibited from using any Service or corporate name, designation, logo, trade name, trademark, service name or service mark of SOFTCO, its Affiliates, or suppliers in any marketing materials, offering circular, prospectus or otherwise, without the prior written consent of SOFTCO.


5.	Indemnification
5.1 Indemnification by SOFTCO. SOFTCO shall indemnify and hold harmless Client, from and against any damages, liabilities, costs and expenses arising out of any third-party claims that the Services as provided to Client by SOFTCO and as used by Client in compliance with the terms of the Terms infringe any intellectual property right of a third-party, provided however, that (i) Client shall have promptly provided SOFTCO with written notice thereof and reasonable cooperation, information, and assistance in connection therewith; and (ii) SOFTCO shall have sole control and authority with respect to the defense, settlement, or compromise thereof (to the extent of the full release of Client’s liability).
In the event that any Service becomes, or in SOFTCO’s opinion is likely to become, the subject of a claimed intellectual property infringement or other claim, SOFTCO may, at its option, (i) procure for Client the right to continue using the Service; or (ii) replace or modify such Service to be non-infringing, without incurring a material diminution in performance or function; or (iii) if neither of the foregoing is, in SOFTCO’s judgment, reasonably available, SOFTCO may terminate the subscription of the relevant Service with a thirty (30) days’ prior notice to the Client and refund any prepaid fees for the unused subscription period. 
5.2 Indemnification by Client. Client shall indemnify and hold harmless SOFTCO, from and against any damages, liabilities, costs and expenses arising out of any third-party claims that the data and information collected and processed by the Client using the Services or the use of the Services by the Client in breach of this Terms infringe any intellectual property right of a third-party or violate applicable laws; provided however, that (i) SOFTCO shall have promptly provided Client with written notice thereof and reasonable cooperation, information, and assistance in connection therewith; and (ii) Client shall have sole control and authority with respect to the defense, settlement, or compromise thereof (to the extent of the full release of SOFTCO’s liability). 
5.3 Exclusive Remedy. The defense and indemnification described in this Section and either Party’s obligations under the provisions of this section “Indemnification” are the Parties’ exclusive liability and remedy for claims of an intellectual property infringement.

6.	Representations and Warranties.
6.1 General. Each Party represents and warrants that it has the right and authority to enter into this Terms, and that by entering into this Terms, it will not violate, conflict with or cause a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien or encumbrance to which it is a party or by which it or any of its property is or may become subject or bound.
6.2 Compliance with Law. Each Party shall, at its own expense, comply with all laws, regulations and other legal requirements that apply to it and this Terms.
6.3 Use of the Service by Client. Client may not use the Service in contravention to any applicable law or mandatory regulations and is responsible for the content of the Data it transmits in or through the Service.
6.4 Provision of the Service by SOFTCO. SOFTCO warrants that the Service will be provided in a manner consistent with generally accepted industry standards and throughout the subscription term, SOFTCO will not materially decrease the overall security of the Services.
6.5 DISCLAIMER. THE LIMITED WARRANTIES STATED THIS SECTION SET FORTH THE ONLY REPRESENTATIONS AND WARRANTIES CONCERNING THE SERVICES PROVIDED BY SOFTCO.  SOFTCO, ITS AFFILIATES, OR SUPPLIERS EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION WARRANTIES OF ACCURACY, TIMELINESS, COMPLETENESS, RESULTS, AND THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EVEN IF SOFTCO HAS BEEN INFORMED OF SUCH PURPOSE, OR ANY REPRESENTATIONS AND WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. SOFTCO, ITS AFFILIATES OR SUPPLIERS MAKE NO REPRESENTATION OR WARRANY WITH RESPECT TO HARDWARE OR NETWORK DOWNTIME, INTERFERENCE, BANDWIDTH, INTERRUPTION, OUTAGE, OR QUALITY OR SPEED OF ACCESS OF TRANSMISSION OF DATA OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. 

7.	 Personal Data
7.1 Definitions. 
“Data Collector” means the entity which determines the purposes and the means of the Processing of Personal Data.
“Personal Data” means any information relating to an identified or identifiable natural person, (“Data Subject”), as defined by the Federal Law for the Protection of Personal Data held by Private Parties and any subsequent Mexican regulation. 
“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, as defined by the Federal Law for the Protection of Personal Data held by Private Parties and any subsequent Mexican regulation, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
“Data Processor” means person which processes Personal Data on behalf of the Data Collector, by following its direct instructions. 
For the purpose of this section, the Client will be considered as the Data Collector, while SOFTCO will be considered as the Data Processor.
7.2 Personal Data Laws. The Parties shall comply at all times with the applicable Federal Law for the Protection of Personal Data held by Private Parties or the General Law for the Protection of Personal Data held by Public Governmental Entities (hereinafter referred to as “Personal Data Laws”).
7.3 Transfer of Personal Data. The Client agrees that Personal Data may be transferred to or otherwise processed by any SOFTCO’s Affiliates or Subcontractors.
7.4 Warranties of SOFTCO. SOFTCO warrants to the Client that: (i) it will act only on instructions from the Client in relation to the Processing and it will not modify or willfully alter the Personal Data; (ii) the Subcontractor shall comply with the Personal Data Laws and with the same degree of care as SOFTCO regarding the Processing, and that (iii) SOFTCO and its Subcontractor will use all reasonable endeavors to prevent any breach of Personal Data.
In the event of a security breach of Personal Data leading to the accidental or unlawful destruction, loss, alteration, or unauthorized access or disclosure of the Personal Data of a Data Subject arising during the performance of the Services, SOFTCO shall: (i) notify the Client in a timely manner; (ii) cooperate with the Client to take all the necessary actions to minimize the effects of the breach.
7.5 Warranties of the Client. The Client warrants to SOFTCO that: (i) the Personal Data are collected in compliance with the Personal Data Laws; (ii) it will promptly notify SOFTCO of any request made by a Data Subject that requires an action from SOFTCO. 
Client shall hold harmless and indemnify SOFTCO for any claim by a Data Subject arising from any breach by Client of this provision. 

8.	Data
8.1 Ownership of the Data. The Parties agree that the Data used, processed, hosted, saved or stored by SOFTCO or its suppliers on behalf of the Client, or on the initiative of the latter, are and will remain the property of the Client. 
8.2 Conformity of the Data. Client undertakes to process, distribute, download or transmit through the Services only Data which the use does not violate any intellectual or industrial property rights or any other proprietary right, or that does not constitute a criminal offence. SOFTCO may not be held responsible in case of processing, use, storage or collection by the Client of Data which the nature does not respect the laws in force in the countries where it is hosted, displayed or used. In the event that SOFTCO is informed that all or part the Data does not comply with the regulations in force, or if it is suspected that the character of the Data is inappropriate, misleading or abusive or that it represents a risk of infringement of the law, SOFTCO reserves the right to terminate forthwith this Terms and notify Client in writing, without prejudice to any other right or remedy it may claim.
8.3 Access to the Data. The Client grants to SOFTCO the right to access the Data solely to enable SOFTCO to provide the Services. SOFTCO agrees to keep strictly confidential any information brought to its knowledge and all Data to which it may have access during the performance of this Terms, except in the cases described in section 11.2.

9.	Term and Termination. 
This Terms shall be effective on the Effective Date and shall remain in effect thereafter until the end of the subscription period set forth in the Order Form unless terminated earlier by either Party as provided herein.
If a Party commits a material breach of the Terms which cannot be remedied or commits a material breach of the Terms which can be remedied but fails to remedy that breach within thirty (30) days of a written notice setting out the breach and requiring it to be remedied, the other Party may terminate the Terms without liability and without prejudice to any other rights under the Terms.
If SOFTCO terminates the Terms pursuant to a material breach of the Client, Client shall pay any unpaid fees covering the remainder until the end of the subscription term.  
If Client terminates the Terms pursuant to a material breach of SOFTCO, SOFTCO will refund any prepaid fees covering the remainder until the end of the subscription term.  

10.	Confidentiality. 
11.1 Confidential Information. Confidential Information means all information disclosed by a Party (“Disclosing Party”) 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. The Client’s Confidential Information includes any Data; SOFTCO’s Confidential Information includes the Services; and Confidential Information of each Party includes the terms and conditions of this Terms and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. 
11.2 Non-Disclosure. Each Party agrees (a) not to use or disclose to any third-party the Confidential Information disclosed to it by the Disclosing Party for any purpose other than as contemplated by this Terms except where the Receiving Party has received express, written permission from the Disclosing Party and (b) to protect the Disclosing Party’s Confidential Information with at least the same degree of care it uses to protect its own Confidential Information, but at a minimum to use commercially reasonable efforts. SOFTCO will take all appropriate technical and organizational security measures to protect Client’s Confidential Information against unauthorized use or disclosure, and SOFTCO will isolate and clearly identify Client’s Confidential information to maintain confidentiality of customer information between SOFTCO’s various customers and to allow Client’s Confidential Information to be deleted or destroyed where required in adverse conditions. Access by SOFTCO’s employees or employees of SOFTCO’s Subcontractors to the Client’s Confidential Information will be on a need-to-know basis. SOFTCO agrees to indemnify Client for breach of confidentiality obligations by SOFTCO or any Subcontractor that SOFTCO engages in conjunction with the provision of the Services.
The confidentiality obligations of this Terms shall not apply to information received by the Receiving Party that (a) was lawfully received from a third-party free of any obligation to keep it confidential; (b) is or becomes publicly available, by other than unauthorized disclosure; (c) is independently developed without any reference to the Confidential Information, as evidenced by contemporaneous written records of the Receiving Party; or (d) is required to be disclosed by law, regulation or court order; provided that, with respect to any of the foregoing exceptions, the Receiving Party will give the Disclosing Party prompt notice prior to such disclosure.  
11.3 Notifications. SOFTCO will notify the Client as soon as reasonably practicable after becoming aware of any (i) unauthorized access to Client’s Confidential Information; (ii) breach of security; or (iii) any adverse developments arising relating to the Services or SOFTCO’s compliance with its obligations hereunder that could significantly affect the Client, including any events that could potentially lead to the early termination of this Terms. 
For avoidance of doubt, the above notification obligations apply to unauthorized access, breach of confidentiality or security, or breach of obligations that relates to subcontractors engaged for the provision of the Services.
11.4 Return or Deletion of Confidential Information. Upon Client’s request at any time or upon termination or expiration of the Terms, SOFTCO shall return, delete or destroy Client’s Confidential Information in its systems or otherwise in its possession or under its control, and certify to the Client in writing that such deletion and / or destruction has been successfully performed.

11.	Miscellaneous.
12.1 Independent Contractors. SOFTCO and Client are independent contractors, and nothing in this Terms will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the Parties. Neither Party is an agent or representative of the other or is authorized to make any warranties or assume or create any other obligations on behalf of the other.
12.2 Client Reference.  Client agrees that SOFTCO may (a) use Client’s name in SOFTCO’s Client list and, (b) upon approval by Client, issue a press release generally describing the Parties’ relationship under this Terms. 
12.2 Compliance with Laws. Each Party represents and warrants that it will comply with all applicable laws and regulations affecting its performance under this Terms. Client shall adhere to all applicable laws, regulations and rules relating to the export of Data and shall not export, re-export, or participate in any other transaction in connection with the Services or data obtained therefrom in violation of such applicable laws, regulations and rules unless properly authorized.
12.3 Amendments/Severability.  No amendment or modification of this Terms, nor any waiver of any rights, will be effective unless assented to in writing by the Party to be charged, and the waiver of any breach or default will not constitute a waiver of any other right hereunder or any subsequent breach or default. If any provision of this Terms is held unenforceable by a court of competent jurisdiction, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of this Terms shall continue in full force and effect.
12.4 Subcontractors.  
SOFTCO may subcontract the performance of all or any part of the Services consisting of the hosting of the Data or the monitoring of the infrastructures without Client’s prior consent but in any case SOFTCO shall first inform the Client.
SOFTCO will remain responsible and contractually liable for the obligations performed by its Subcontractors and for Subcontractors’ compliance with terms of this Terms, including but not limited to those terms relating to confidentiality and security to the same extent as if such obligations were performed by SOFTCO.
12.5 Force Majeure. Performance under this Terms may be postponed or extended automatically to the extent that either Party is prevented from performing its obligations under this Terms as a result of a cause beyond its reasonable control, such as an accident, act of a civil or military authority, act of God, earthquake, embargo, fire, flood, intervening change in law or governmental regulation, riot, strike, shortage of transportation or communication facilities, pandemic, disruption of telecommunication networks, Internet service provider failure or delay, terrorism or war. 
12.6 Assignment. Neither Party shall assign this Terms or any of its rights or duties under this Terms without the prior written consent of the other Party; provided however, that either Party may assign its rights and obligations hereunder in the event of a change of control or sale of all or substantially all of its assets related to this Terms, whether by merger, reorganization, operation of law, or otherwise; and provided further, that Client shall not assign this Terms to any entity that is a competitor of SOFTCO. Any permitted assignee of Client shall agree in writing to be bound by the terms and conditions of this Terms.  
12.7 Governing Law. This Terms and any Order Forms hereunder shall be governed by, and construed in accordance with the laws of the United States of Mexico. Any and all disputes, controversies or claims arising out of or relating to this Terms or breach thereof shall be subject to the exclusive jurisdiction of the courts of Mexico City. In the event of a dispute arising out of or in connection with this Terms, the Party prevailing in such dispute shall be entitled to recover its reasonable expenses, costs and attorneys’ fees, in addition to all other appropriate relief.  The English language shall control the interpretation of this Terms and all other writings and resolution of disputes between the Parties.
12.8 Third-Parties.  The Parties agree that this Terms is intended by them to be solely for the benefit of the Parties hereto and that no third-parties are entitled to rely on any deliverables, reports, analyses or other material provided by SOFTCO, or shall obtain any direct or indirect benefits from this Terms, have any claim or be entitled to any remedy under this Terms, or otherwise in any way be regarded as third-party beneficiaries under this Terms.
12.9 Notices.  All notices, requests, or other communications or documents to be given under this Terms shall be in writing and shall be deemed effective: (i) when delivered by hand; or (ii) one day after posting with a recognized express delivery service specifying priority overnight delivery with written verification of receipt (in the case of intra-national deliveries); or (iii) three days after posting with a recognized international express delivery service specifying priority international delivery with written verification of receipt (in the case of international deliveries).  Notices to the Parties shall be sent to each such Party’s respective registered address as set forth on the first page of this Terms.  Each Party may designate a different address or contact person by notice given in the manner provided in this section.
12.10 Entirety and Terms Precedence. This Terms, which includes the Order Forms, exhibits, schedules and annexes attached hereto or referencing this Terms constitutes the complete and exclusive understanding and Terms between the Parties relating to the subject matter hereof and supersedes all prior or contemporaneous understandings, Termss and communications with respect to such subject matter. If there is a conflict between this Terms and any of the Parties’ documents and general terms and conditions of trade and other similar preprinted forms that purport to govern the same matter as set forth in this Terms, then this Terms prevails.  

12.11 Survival. The terms contained in Sections 1 “DEFINITION”, 4 “INTELLECTUAL PROPERTY”, 5 “INDEMNIFICATION”, 8 “DATA”, 9 “LIABILITY”, 11 “CONFIDENTIALITY”, 12 “MISCELLANEOUS” of this Terms shall survive the expiration or termination of the Services.