END USER LICENSE AGREEMENT FOR LEANXCALE DATABASE SOFTWARE

This END-USER LICENSE AGREEMENT and the PURCHASE ORDER constitutes the full terms of the license granted to the End-User (hereinafter, the “LICENSEE”) for the use of the proprietary software of LeanXcale S.L. (hereinafter, “LEANXCALE” or the “LICENSER”), including all related documentation, and updates and upgrades that replace or supplement the product and are not distributed with a separate license (hereinafter and collectively, the “PRODUCT”). By installing and/or using the Product, LICENSEE fully accepts and consents to be bound by this License. If you do not agree to the terms of this license, the LICENSEE cannot install and/or use the PRODUCT.

DEFINITIONS

“DOCUMENTATION” refers to all documents that describe how to use the PRODUCT as well as any other material given by the LICENSER in order to be used with the PRODUCT.

“EULA” or “AGREEMENT” refers to End User License Agreement for LeanXcale Database Software.

“LICENSE FILE” refers to an ASCII file containing a set of license codified characters which allow the SOFTWARE to run with a specific configuration.

“PURCHASE ORDER” refers to the document where LICENSER and LICENSEE agree, indicating quantities, and agreed prices for license, upgrade version eligibility, and TECHNICAL SUPPORT availability.

“RELEASE” refers to any version of the PRODUCT or any other material which has been commercialized by the LICENSER during or after delivering a PRODUCT, including any kind of software supplied with the aim of improving either functions or performance of the PRODUCT, increasing its capacity or improving the PRODUCT usage, with the aim of mending possible bugs in the PRODUCT, together with its documentation.

“TECHNICAL SUPPORT” refers to the Maintenance and Technical Support services given to the PRODUCT.

“TERMS” refers the EULA and the PURCHASE ORDER.

"TRIAL" shall mean the edition of the PRODUCT, which is available free of charge for evaluation purposes.

PURPOSE OF THE AGREEMENT

The LICENSER grants the LICENSEE a non-exclusive, non-transferable, non-sublicensable, revocable license to use the PRODUCT listed therein and under the TERMS thereof (hereinafter, the “License”).

By using the PRODUCT, the LICENSEE agrees to accept the TERMS. The LICENSEE is responsible for the proper use of the License as defined in this EULA. LICENSER must be notified of any changes to the name and/or address of the LICENSEE.

By virtue of accepting the terms and conditions established in this EULA the LICENSEE does not acquire any ownership of copyright or other intellectual property rights in any part of the PRODUCT. The LICENSEE is only entitled to use the PRODUCT in accordance with the terms and conditions set forth in the TERMS.

The PRODUCT includes two types of computer software (1) that is owned by LICENSER and may include associated media, and “online” or electronic documentation (hereinafter and collectively, the “SOFTWARE PRODUCT”) and (2) other software provided by third parties and used with the PRODUCT (hereinafter, the “THIRD PARTY SOFTWARE”).

Upon payment of the license fees established in the PURCHASE ORDER (section license fee), the LICENSEE will be sent details on where to download the registered edition of the PRODUCT and will be provided by email with the suitable permanent or temporary software license file depending on the commercial agreement reached with the LICENSEE.

Alternatively, if the PRODUCT has an online component or Cloud Service, access will be provided when the LICENSEE subscribes to the service upon accepting the commercial TERMS.

The LICENSER may audit the LICENSEE uses of the PRODUCT, the LICENSEE must provide the LICENSER with all the information as well as the necessary permits to perform the audit.

The LICENSEE is not permitted to use the PRODUCT for any purpose other than in connection with his/her authorized use of the PRODUCT. The LICENSEE agrees to comply with any applicable third-party terms when using the PRODUCT.

EVALUATION LICENSE

The TRIAL in all its versions is not free software, but a temporary, free-of-charge edition of the PRODUCT, which is available for testing purposes only. Consequently, the liabilities of the LICENSER shall be limited as indicated below. If the LICENSEE is using a TRIAL version or evaluation copy, then any granted license shall be limited as follows:

 

  • On request, and at the LICENSER discretion, the LICENSEE will be provided without charge with a temporary license file or a temporary access to the online version and will be licensed to use the PRODUCT for a period defined on the PURCHASE ORDER (section, trial, evaluation period) (hereinafter, the “Evaluation Period”) since the a starting date (section,  trial ,starting date) for evaluation purposes only;

  • Upon completion of the Evaluation Period, the LICENSEE shall either delete the PRODUCT from the computer, where it has been installed, or the LICENSEE may contact the LICENSER or one of its authorized dealers to purchase a License of the PRODUCT, which is subject to the TERMS.

  • Unregistered use of the PRODUCTS after the Evaluation Period is in violation of Spain, European Union, and international conventions on copyright law.

  • The LICENSER may extend the evaluation period on request and at their only discretion.

 

VALIDITY OF THE LICENSE GRANT 

The grant of any license hereunder shall only commence on the date specified in his/her PURCHASE ORDER (section, license, starting date) and shall end on the earlier of the date his/her dispose of the PRODUCT or termination of this license in accordance with the PURCHASE ORDER’s terms (section, license, end date).

 

The LICENSEE may use the PRODUCT under the specifications and for the duration stipulated in the PURCHASE ORDER solely and exclusively within the territory / market segment stated therein (section, license territory). Any changes or alterations to the specifications stipulated in the PURCHASE ORDER without the express consent from the LICENSER are strictly prohibited.

The PRODUCT shall only be used in the quantity conditions described in the PURCHASE ORDER (section, license quantity).

 

LICENSE RIGHTS

Regarding the License allows the LICENSEE a non-exclusive, non-transferable, non-sublicensable, revocable PRODUCT license, to be used by his workers with the aim of installing and using the PRODUCT for his/her own commercial and internal matters.

In the case that the expired due to lack of payment in the terms defined in the PURCHASE ORDER (section license, payment period), the PRODUCT might no longer work. This is due to design and it is not a PRODUCT defect. In this case, the LICENSER will re-establish the PRODUCT functionalities on the first working day after the LICENSER has received the amount to cover the License according to the PURCHASE ORDER.

The LICENSEE will be able to make additional copies of the PRODUCT as long as those are necessary for their usage. The LICENSEE can also copy the PRODUCT in order to save security copies. He should also reproduce and include the PRODUCT copyright and ownership notes in any copy in the same way as they appear on the original copies given to the LICENSEE.

The License is given under the criteria defined in the PURCHASE ORDER (section, license quantity). The LICENSEE understands that the PRODUCT imposes these restrictions and that if the PRODUCT does not work in agreement with the DOCUMENTATION because it has not been using according to these criteria, it is not due to a PRODUCT defect.

The LICENSER reserves the whole of the PRODUCT rights which have not been specifically given by this EULA.

 

PRODUCT’S OWNERSHIP AND RESTRICTIONS

Any rights on the PRODUCT, partial or full copies thereof, as well as any related documents provided by the LICENSER, are and shall always be the exclusive property of the LICENSER.

The LICENSER shall remain the sole proprietor of the ownership, royalties and all copyrights and patent rights on the PRODUCT. The PRODUCT is protected by copyrights as well as by the applicable International Copyright Laws and Treaties.

No right whatsoever concerning the usage, modification, license or any other type of exploitation of any of the brands, trade names, logos, websites, domain names, or any other Patent Rights which the property of the LICENSER may be, are hereby granted.

Specifically, the LICENSEE is not licensed nor authorized to develop the PRODUCT, to create new versions of the same, or to provide a database service based on it or in a new version of the PRODUCT.

The LICENSEE is not entitled to reproduce, disseminate or publicly display any portions of the PRODUCT.

The LICENSEE agrees not to sell, resale, lease, sublease, rent or reproduce, copy, or transfer in any way, whether totally or partially, the PRODUCT herein.  

The LICENSEE may not customize, modify, decompile, disassemble, hacking or perform reverse engineering on the PRODUCT (unless required by law for interoperability) included herein or on any part thereof, not even for maintenance or improvement purposes (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by the PRODUCT). Any customizations or modifications of the PRODUCT by the LICENSEE or by a third party shall relieve the LICENSER from any obligation derived from said actions, and they shall constitute sufficient cause to terminate this AGREEMENT. All the above does not affect any other legal actions to which the LICENSER may be entitled in order to protect his rights and interests.

The LICENSEE may not disclose results of any PRODUCT benchmark tests without LICENSER’s prior written consent; or

The LICENSEE may not use any the LINCESER name, trademark, logo, or legal notices included in the PRODUCT.

LICENSER does not operate in the  territories that are sanctioned by the U.S. (hereinafter, the 'Territories'). Consequently, if the LICENSEE is a resident or provides services in some of these Territories, unfortunately we will not be able to grant the License.

In the event that the LICENSER detects that the LICENSEE operates in the Territories may withdraw the License and terminate the Services without entitlement to any indemnity or compensation for the LICENSER.

 

SOFTWARE UPGRADES

Updates and upgrades to the SOFTWARE PRODUCT may be provided by the LICENSER from time-to-time upon the terms and conditions offered at each time. To use a SOFTWARE PRODUCT identified by the LICENSER as an upgrade, the LICENSEE must first be licensed for the original PRODUCT identified by the LICENSER as eligible for the upgrade according to the conditions of the PURCHASE ORDER (section, upgrade eligibility). After upgrading, the LICENSEE may no longer use the original SOFTWARE PRODUCT that formed the basis for the upgrade eligibility and the upgraded software shall be deemed the SOFTWARE PRODUCT. The SOFTWARE PRODUCT upgrades are FREE of charge.

In the case of lack of payment in the period described in the PURCHASE ORDER (section, upgrade eligibility, payment period) the LICENSEE will be automatically non-eligible for any software upgrades.

 

TECHNICAL SUPPORT 

Should the LICENSEE have contracted TECHNICAL SUPPORT for the PRODUCT in its PURCHASE ORDER (section, technical support coverage), the terms and conditions stipulated in this section shall be applicable:

General Conditions for the Provision of TECHNICAL SUPPORT:

  1. The TECHNICAL SUPPORT shall be contracted and provided the PURCHASE ORDER's terms (sections, technical support starting time, and service validity period), hereafter the “Service Validity Period”; 

  2. The TECHNICAL SUPPORT shall be understood as referring to the latest version of the PRODUCT launched by the LICENSER, to its immediately previous version;

  3. In the case of lack of the full payment in the period described in the PURCHASE ORDER (section, technical support, payment period) the TECHNICAL SUPPORT will not be provided by the LICENSER and the LICENSEE explicitly renounce to the TECHNICAL SUPPORT.

 

The PRODUCT maintenance and support services shall include the following:

  1. TECHNICAL SUPPORT shall only assist with queries regarding the installation, configuration, faults, or problems concerning the PRODUCT.

  2. PRODUCT problems can be reported via email to support@leanxcale.com Our dedicated TECHNICAL SUPPORT team will analyze each issue and assign a critical level, with a maximum response defined in the PURCHASE ORDER (section, technical support, maximum response period).

  3. TECHNICAL SUPPORT shall only be provided in two languages, English and Spanish; The LICENSER and the LICENSEE agree to and declare themselves to be satisfied by the TERMS.

  4. When the LICENSEE is using first level support from an authorized LICENSER Partner or an OEM distributor all requests and inquiries will be sent to that partner/distributor only.

 

Those using TECHNICAL SUPPORT shall provide the following information when making queries:

  1. Full information of the contact person (name and surname, department, E-mail and telephone number).

  2. License or maintenance contract code.

  3. A clear and specific description of the problem or query.

The services provided by the LICENSER or the authorized LICENSER Partner through courses and consultancy are explicitly excluded from the TECHNICAL SUPPORT.

 

TECHNICAL SUPPORT shall not assist either in the installation or usage of products such as those included in the list below:

  1. Operating System.

  2. Any other product or tool, which may be integrated within PRODUCT.

 

The LICENSEE shall be provided, at no extra cost, with the necessary code modifications to correct the main PRODUCT faults so that said PRODUCT work according to the relevant operating specifications for their most recent version. At a later stage, he will be provided with code modifications to solve less important problems in the next version of the PRODUCT.  

The TECHNICAL SUPPORT will not include:

  1. The correction of mistakes that may be attributed to a manipulation of the PRODUCT by personnel not authorized by the LICENSER, or the necessary tasks to re-establish the previous situation derived from incorrect operations by the client, causing losses, destruction and/or disruption of programmer and/or data.  

  2. The PRODUCT adaptation to the specific circumstances of each LICENSEE.

  3. The correction of anomalies exclusively attributed to the hardware used, the shortcomings in the work environment conditions, together with cuts-off or problems in the electricity supply and which, therefore, have no relation with the PRODUCT.

  4. The repair of the damages caused by computer viruses or faults in other programmer not related to this TERMS.

  5. Travel expenses accumulated by the TECHNICAL SUPPORT.

PERSONAL DATA PROCESSING AND PROTECTION

The PRODUCT may collect information about or from the LICENSEE use of the PRODUCT, including information, the LICENSEE provide directly or through automated means, such as geolocation (only if the LICENSEE choose to enable location based services), PRODUCT  usage, time stamp, Device and operating system identification, login credentials, device locale, or other information as outlined in the LICENSER applicable Privacy Policy, available at […]. Images, audio, or video may be captured and uploaded in the event the PRODUCT provides such functionality. To the extent the PRODUCT enables authentication services, the PRODUCT may also collect information on the security posture from the LICENSEE Device such as device lock status and root status.

To the extent that the LICENSEE receives information in relation with its provision of the PRODUCT, the LICENSEE may use this information for purposes specified in the applicable Privacy Policy, such as for providing the services specified under the TERMS, enabling features or content based on or otherwise recording his/her location, identity management, security, auditing, marketing, and product improvement.

The PRODUCT may provide the LICENSEE with the ability to connect with non-LEANXCALE websites, services, and applications, which may allow the third party to collect or share information about his/her use of the PRODUCT. Further, if the LICENSEE use push messaging in connection with the PRODUCT, independent third parties associated with the push messaging service may use the messaging information to provide, maintain, protect, and improve their services, subject to the privacy policies of those third parties. All such third-party connections are beyond LEANXCALE’s control. The LICENSER encourages the LICENSEE to check the privacy policies and terms of use of any non-LEANXCALE connections before using them or providing the LICENSEE’s personal information to them.

GUARANTEE

The LICENSER guarantees, for a period of ninety (90) days, or where appropriate for the minimum legal period established by the imperative regulations applicable in each case, that PRODUCT shall perform substantially in accordance with its User Manual, as long as it is used in accordance with the technical and operational specifications of said User Manual.

The SOFTWARE is delivered on an “AS IS” basis. The LICENSER does not guarantee that the PRODUCT will operate without interruption or that it will meet the LICENSEE’s expectations or commercial necessities. If the PRODUCT contains errors, the LICENSER will act in accordance with the provisions of the legislation applicable at each moment.

The LICENSER has made all efforts possible to avoid PRODUCT being subject to the rights of third parties, in particular, that its use does not infringe patents, copyrights, or other intellectual property rights of third parties. However, the LICENSER does not guarantee that the PRODUCT is not subject to the rights of third parties. The LICENSEE shall notify the LICENSOR immediately and in writing if any third party should assert an infringement claim against LICENSEE in connection with the PRODUCT.

The previous guarantee will not be applicable in the following cases:

  1. When tHe PRODUCT has not been used according to the instructions specified in the User Manual.

  2. When the initial configuration, requirements or specifications that appear in the User Manual have been modified.

  3. When the LICENSEE’s equipment or main accessories do not work properly due to causes that cannot be attributed to the LICENSER.

  4. When the software installed in the equipment in which the PRODUCT is to be used is not original or has operational disfunctions or is incompatible with the PRODUCT.

  5. When the PRODUCTS have been damaged, whatever the cause, by the LICENSEE’s software or hardware.

The LICENSER expressly states, and the LICENSEE accepts, that the LICENSER will not assume any responsibility or obligation other that those specifically described in the TERMS, those that may apply according to the legislation that is of imperative application, or those that may have been agreed upon expressly and individually with each LICENSEE.

 

LIMITATION OF LIABILITY

Both parties agree and state that in no case the LICENSER nor any of the members of his/her business group, agents, employees or independent personnel will be held, nor be expected to be held, liable before the LICENSEE for:

  1. Loss of benefits, income or clients, loss or waste of the organization time of other employees (whether directly or indirectly);

  2. Loss or destruction of data (whether directly or indirectly);

  3. Any indirect, special, incidental or general loss or damage, no matter how it is caused, even if the provider has been informed of the loss or damage risk and even if the LICENSER or the LICENSEE has been informed of the possibility of such loss or damage, whether it is due to negligence, a minor fault, breach of contract or anything else.

  4. The LICENSER will not be held liable for any defect, anomaly or error in the SOFTWARE PRODUCT operation.

             

Specifically, LICENSER shall not be deemed liable in cases of direct or indirect, incidental or consequential damages when the TRIAL of the PRODUCT is downloaded through the Internet for trial purposes. In this case, LICENSEE or subscriber of the TRIAL downloads the PRODUCTS at his/her own risk and only for trial purposes.

The TERMS include the totality of the obligations and responsibilities of the LICENSER regarding the licensed PRODUCT, the documents related thereof, and the Service Support provided. Therefore, the TERMS replace any other guarantee, condition, term, agreement and obligation, either express or implicit, imposed by law, by consensus, by habit, commercial custom or in any other way and, especially, the guarantees of quality and adaptation to a specific purpose, of diligence and/or reasonable ability, all of which are expressly excluded insofar as it is permitted by the applicable imperative law.

Subject to what is stated previously and unless the law provides otherwise, both Parties expressly agree to establish the maximum liability limit of the LICENSER derived from these TERMS or in relation therewith, for any concepts, whether it is contractual or non-contractual fault, negligence or punitive compensations or of any other nature, at an amount equal to the sum of total amounts actually paid by LICENSEE to LICENSOR during the period of the 6 months preceding the date of such liability.

The Parties hereto confirm that it is their wish that these TERMS as well as other documents relating hereto have been and shall be drawn up in English only. This English version shall be valid and enforceable between the Parties and both of them understand entirely any and all of its clauses. 

 

THIRD PARTY

Notwithstanding the terms and conditions of this EULA, all or any portion of the SOFTWARE PRODUCT which constitutes Third Party Software, is licensed to the LICENSEE subject to the terms and conditions of the software license agreement accompanying such Third Party Software whether in the form of a discrete agreement, shrink wrap license or electronic license terms accepted at time of download. Use of the Third Party  Software by You shall be governed entirely by the terms and conditions of such license.

 

USE OF LICENSEE NAME

LICENSEE agrees that the LICENSER and his authorized Partners may use LICENSEE 's name and logo in possible investors’ communications, advertisements, other promotional material and the LICENSER'S website.

 

ENTIRE AGREEMENT

This EULA (including any addendum or amendment to this EULA included with the PRODUCT) and the PURCHASE ORDER are the final, complete and exclusive statements of the entire agreement between the LICENSEE and the LICENSER relating to the PRODUCT. The TERMS supersede any prior and contemporaneous proposals, purchase orders, advertisements, and all other communications in relation to the subject matter of this EULA, whether oral or written. No terms or conditions, other than those contained in this EULA, and no other understanding or agreement which in any way modifies these terms and conditions, shall be binding upon the parties unless entered into in writing executed between the parties, or by other non-oral manner of agreement whereby the parties objectively and definitively act in a manner to be bound (such as by continuing with an installation of the PRODUCT, "clicking-through" a questionnaire, etc.) Employees, agents and other representatives of the LICENSER are not permitted to modify this EULA. Appendixes of this document will be incorporated and considered as part of the Agreement.

Likewise, both parties agree that, in case any clause and/or mention of this AGREEMENT was declared null or annullable by a competent person or entity to do so in accordance with the applicable legislation in force at each moment, and as long as these clauses are not of an essential nature for the present AGREEMENT, the rest of the clauses and provisions of the present AGREEMENT will remain in force and will be applicable in the terms established in this AGREEMENT.

INDEMNIFICATION

The LICENSEE will, at his/her expense:

  1. Defend, or at his/her option settle, but subject to LICENSER’s prior written consent, not to be unreasonably withheld, a claim brought against LEANXCALE, its contractors, suppliers, licensors, and or respective directors, officers, employees and agents, arising out of or related to his/her use of the PRODUCT or the applicable TECHNICAL SUPPORT, including, without limitation, his/her breach of these TERMS, and 

  2. Indemnify LEANXCALE against and pay (1) any settlement of such claim or (2) any damages finally awarded to such third party by a court of competent jurisdiction as the result of such claim.

If LEANXCALE believes or it is determined that the PRODUCT may have violated a third party’s intellectual property rights, the LICENSER may choose to either modify the PRODUCT to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the LICENSER may end the License for, and require the return of, the PRODUCT and refund any fees that the LICENSEE may has paid for it. The LICENSER will not indemnify the LICENSEE if his/her alters the PRODUCT or use it outside the scope of use identified in the PRODUCT’s user documentation or if his/her use a version of the PRODUCT which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the PRODUCT. The LICENSER will not indemnify the LICENSEE to the extent that an infringement claim is based upon any information, design, specification, instruction, software, data, or material not furnished by LEANXCALE. The LICENSER will not indemnify the LICENSEE to the extent that an infringement claim is based upon the combination of the PRODUCT with any products or services not provided by LEANXCALE. The LICENSER will not indemnify the LICENSEE for infringement caused by his/her actions against any third party if the PRODUCT as delivered to his/her and used in accordance with the terms of this AGREEMENT would not otherwise infringe any third-party intellectual property rights.  

 

SEVERABILITY CLAUSE

If a provision of the TERMS is or becomes illegal, invalid or unenforceable in any jurisdiction, the validity or enforceability in that jurisdiction or any other provision of the TERMS shall not be affected. The concerned provision is superseded in accordance with the legal laws.

Instead of an invalid provision, a valid provision shall be deemed to be agreed which comes economically closest to what the parties intended; the same applies in the case of an omission.

 

RELATIONSHIP BETWEEN THE PARTIES

The relationship between the LICENSEE and the LICENSER is that of licensee/licenser.

 

CONFLICT RESOLUTION

TERMS and the rights and obligations deriving therefrom will be governed by the provisions of the Spanish Laws in force at the acceptance of the present document.

Any dispute, conflict and/or discrepancy that may arise or be related in some way to the TERMS will be exclusively resolved by the Arbitration Court of Madrid, Spain for any kind of arbitration or dispute regarding this TERMS. The LICENSEE expressly renounces to their own Jurisdiction.

The LICENSER and the LICENSEE expressly accept this clause and agree to submit to the court and to comply entirely with the provisions of the decision putting an end to the conflict.

 

TERMINATION

Notwithstanding Clause 1 above, the LICENSER may terminate this EULA if the LICENSEE fails to comply with the terms and conditions established hereunder or with the clauses of the TERMS. Upon termination, the LICENSEE or the LICENSEE representative shall destroy all copies of the PRODUCTS and all of its component parts or otherwise return or dispose of such material in the manner directed by the LICENSER.

If the LICENSEE disables or otherwise tamper with the technical protection measures, the PRODUCT may not function properly, and LICENSEE’s rights hereunder shall immediately terminate.

The LICENSEE agrees to indemnify, hold harmless, and defend the LICENSER and its suppliers and resellers from and against any and all claims or lawsuits, including attorney's fees, which arise out of or result from your breach of any of the terms and conditions of this EULA.

The LINCESER reserves the right to terminate this EULA at any time without consent of the LICENSEE. Termination shall automatically become effective one month after notification to the LICENSEE has taken place.

 

CHANGES OF THIS AGREEMENT

The LICENSER reserves the right at its discretion to change, modify, add or remove terms and conditions of this EULA at any time.

The LICENSEE may not assign, transfer, or otherwise dispose of these TERMS or any of its rights, interest, or obligations hereunder without the prior written consent of LEANXCALE. LEANXCALE may transfer or assign the terms to:

  1. An affiliate of LEANXCALE;

  2. An acquirer of all or substantially all of the shares or assets of such party through change of control event;

  3. A third party as long as the third party can provide the services under the same conditions as LEANXCALE.

 

Any change, modification, addition or removal of the terms of use of this EULA must be notified to the LICENSEE as soon as possible. Such notification will be done by an announcement in combination with the next use of the PRODUCT.

The LICENSEE will have to agree on such change, modification, addition or removal of the terms of use of this EULA before use of the latest version of the PRODUCT will be allowed again. In case of a missing renewed consent by the Licensee, any further use of the PRODUCT will be automatically denied without any right of compensation or reimbursement of payment being due.

In case of modifications and changes of any national or international legal framework having

compulsory effect on this EULA as well as on the provision of any contractual duties, rights, and services formerly negotiated between The LICENSER and the LICENSEE, the LICENSER shall be allowed to change this EULA without explicit consent of the LICENSEE.

 


 

ANNEX I

DATA PROCESSING AGREEMENT

 

In compliance with the legal provisions of 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 (hereinafter, the "GDPR") and the Spanish Organic Law 3/2018, of 5 December, on the Protection of Personal Data and Guarantee of Digital Rights (hereinafter, the "LOPDGDD"), or any other data protection regulation that may modify, develop, repeal or consolidate them, this data processing agreement is concluded (hereinafter, the "DPA").

 

1.     Scope

This DPA forms part of the terms of the UNIVERSAL LICENSE AGREEMENT FOR LEANXCALE DATABASE SOFTWARE (hereinafter, the “TERMS”) governing the terms and conditions under which LeanXcale, S.L. (hereinafter, the “LICENSER” and/or the “Data Processor”) makes available its TECHNICAL SUPPORT (hereinafter, the “SERVICES” and/or) to the LICENSEE (hereinafter, the “LICENSEE” and/or the “Data Controller”).

Each of the parties is hereinafter referred to as a “Party”, and jointly as “Parties”.

 

2.     Personal Data processing

2.1. Purpose of the processing

LICENSER is authorized to process, on behalf of the LICENSEE, personal data to the extent that it is or becomes necessary to provide the SERVICES in accordance with the TERMS and as specified in this DPA.

LICENSER agrees to process LICENSEE's personal data only to provide the SERVICES to the LICENSEE in accordance with the TERMS. LICENSER shall not process such personal data for any purpose other than those set out in the TERMS and this DPA.

 

2.2. Description of the data processing

The nature of the processing activities carried out by LICENSER are compute, storage and such others necessary for the provision of the SERVICES.

The categories of data subjects may include a diversity of the LICENSEE’s data subjects, as LICENSEE’S clients, employees, partners, suppliers and end-users.

The type of personal data processed may be of a great variety, however, it will be LICENSEE’s personal data uploaded to the SERVICES according to the TERMS.

 

2.3. LICENSEE’s data disclosure

LICENSER shall not disclose or otherwise communicate any LICENSEE’s personal data, except (1) as directed by the Data Controller and/or (2) as required by law, court or official authority.

The personal data will not be subject to international transfers, except as indicated expressly by the LICENSEE and/or as required by law, regulation or official authority. Where personal data processed under this DPA are transferred from a country within the European Economic Area (EEA) to a country outside the EEA, the Data Controller shall ensure adequate protection of the personal data. To this end, the Data Processor shall, unless otherwise agreed, rely on the standard contractual clauses approved by the European Union for the transfer of personal data.

 

2.4. Confidentiality

LICENSER warrants that only personnel who need direct access to the personal data to fulfil their obligations under this DPA and the TERMS will have access to the personal data. LICENSER has reasonable measures in place to ensure the reliability of personnel who may have access to LICENSEE’s personal data. LICENSER shall ensure that such personnel are subject to an appropriate confidentiality agreement.

 

3.     Data Controller responsibilities

The LICENSEE, as Data Controller, undertakes to:

Ensure that the Data Processor complies with all the obligations set out in this DPA;

Comply with its obligations as Data Controller according to the regulations in force.

 

4.   Data Processor responsibilities

LICENSER, as Data Processor, undertakes to:

4.1. Record of processing activities

LICENSER shall keep in writing a record of all the categories of processing activities carried out on behalf of the Data Controller in compliance with article 30(2) GDPR, and as long as it is applicable to the processing of personal data carried out on behalf of the Data Controller, making such record available to the LICENSEE by request.

4.2. Rights of data subjects

LICENSER shall assist the LICENSEE in fulfilling its duty of answering requests from data subjects in the exercise of their rights of access, rectification, erasure and objection, restriction of processing and data portability. In the unlikely event that LICENSER receives a request from a data subject exercising its rights, LICENSER shall send it to the LICENSEE without undue delay, and in any case within five (5) working days following the receipt.

 

4.3. Reporting personal data breaches

LICENSER shall notify the LICENSEE before a seventy-two (72) hours maximum period and to the e-mail address indicated by the LICENSEE, any personal data breach, together with all relevant information to prove and report the incident. This notification shall contain, at least, the information set forth in article 33.3 GDPR.

 

4.4. Assistance

LICENSER shall immediately inform the LICENSEE if there’s a believe that any of the instructions violates the GDPR or any other applicable data protection provision.

LICENSER shall make available to the LICENSEE on request all information necessary to demonstrate compliance with this DPA, and shall allow for and contribute to audit, including inspections, by the LICENSEE or an auditor mandated by the LICENSEE in relation to the processing by LICENSER on behalf of the LICENSEE.

Audits shall be carried out upon notification during normal working hours and without interruption of LICENSERs business activity and operations.

LICENSER shall provide reasonable assistance to the Data Controller when carrying out any Data Protection Impact Assessment (“PIA”), and in prior to consultations with Supervising Authorities or other competent Data Privacy Authorities, when appropriate.

 

4.5. Destination of the personal data

Upon the termination of the provided service and the processing-related services, LICENSER shall erase all personal data, including any media or document regarding the personal data.

Notwithstanding the foregoing, LICENSER may retain the personal data duly blocked during the period in which responsibilities may arise from its relationship with the LICENSEE, in compliance with the applicable regulations in force.

 

4.6. Security measures

LICENSER implements and complies with organizational and technical measures, which are appropriate to guarantee an adequate level of security regarding the risk that may arise from the processing, with the purpose of guarantying the security and integrity of the LICENSEE’s personal data and to avoid its alteration, loss, unauthorized processing or access, taking into account the state of the technology, the costs of implementation and the nature of the data, the scope of the processing, as well as the risks to which they are exposed and the impact that this may have on the rights and freedoms of data subjects.

 

5.   Sub-processors

LICENSER needs to subcontract some of the services that are part of the scope of this DPA which involve the processing of the LICENSEE’s personal data. Some of the subcontracting is necessary to be able to comply with the SERVICES. Specifically, the Cloud services of Dropbox International Unlimited Company and Amazon Web Services, INC (AWS) are required. With all of them, LICENSER has entered into a Data Processing Agreement with identical data protection obligations and requirements as those stated in this DAP. The LICENSEE authorizes the above-mentioned subcontracts in compliance with the terms indicated above, which will act as its Sub-processors.

If it is necessary to subcontract any other processing, LICENSER shall notify this in advance and in writing to the LICENSEE, indicating the processing that is intended to subcontract and identifying clearly and unequivocally the subcontractor company and its contact information. The subcontracting may be carried out, unless the LICENSEE has expressed its opposition in writing within a ten (10) working days period from the notification. If the LICENSEE expresses its opposition to the subcontracting within the indicated period, and it is not possible to reach an agreement, LICENSER shall be entitled to terminate the TERMS and its annexes.

In any case, if the LICENSEE does not express its opposition, LICENSER may carry out with the subcontracting. The data processing by the subcontractor must comply with the instructions of the LICENSEE, and LICENSER must execute a contract with the subcontracted company in the terms provided in this DPA and in accordance with the provisions of Article 28 GDPR, committing the subcontractor, expressly and in writing, to assume identical obligations to those assumed by LICENSER under this DPA. In case of non-compliance of the subcontractor, LICENSER shall be fully responsible to the LICENSEEs in compliance with the obligations.

 

6.   Liability

The Parties undertake to indemnify, keep indemnified and hold harmless each other from and against any type of administrative sanctions imposed by the corresponding authorities and third-party loss, harm, cost (including reasonable legal fees and expenses), expense and liability that may suffer, arise or incur as a result from the other Party’s non-compliance with its obligations under data protection regulation and/or its responsibilities under this DPA. If one of the Parties has to pay an amount of money by way of penalty, sanction, indemnification and damages for the non-compliance of the other Party, the Party that hasn’t complied shall pay and/o reimburse to the other Party the corresponding amounts.

 

7.   Term and termination

This DPA is valid for as long as LICENSER is processing personal data on behalf of the LICENSEE and this DPA.