Software License Agreement

Software License Agreement for Commercial Use

 

Definitions

Carbono Tecnologia” refers to Carbono Tecnologia Ltda., Av. das Nações Unidas, no. 12.551, 17th floor, 04578-000 São Paulo / SP, Brazil, a private limited liability company incorporated under the laws of the Federal Republic of Brazil. Carbono Tecnologia Ltda. is the developer, holds the exclusive and worldwide license and distribution rights, and is the compiler of the installation packages and deliverer of this software product.

Software” refers to this software product developed by Carbono Tecnologia. This software product allows its users to create and alter rules and routines in Microsoft Excel. It includes: 1) machine-readable instructions and data, 2) components, 3) audio-visual content (such as images, text, recordings, or pictures), 4) related licensed materials, 5) license use documents and/or keys, and 6) documentation.

SLA” refers to this Software License Agreement for Commercial Use and the terms and conditions set forth by this Software License Agreement for Commercial Use.

YOU” refers to the individual who registers with Carbono Tecnologia for commercial use of this software product or, if this software product is being licensed on behalf of an entity by an individual authorized to register with Carbono Tecnologia for the commercial use of this software product on behalf of such entity, then “YOU” refers to such entity.

Personal Data” refers to any information concerning the personal or material circumstances of a defined or definable natural person.

1 Subject

(1) This SLA constitutes a software leasing and license agreement which is hereby concluded between YOU and Carbono Tecnologia according to the terms and conditions of this SLA.

(2) The Software is leased and licensed to YOU by Carbono Tecnologia under this SLA and not sold to YOU.

(3) The Software is protected by applicable national and international copyright laws and treaty provisions.

2 Right and License to Use

(1) During the term of this SLA, pursuant to Section 3 (Term and Termination), below, and subject to the payment of the license fee, pursuant to Section 4 (License Fee), below, Carbono Tecnologia hereby grants YOU a worldwide, non‑exclusive, non‑transferable, time‑limited and terminable right and license to use the Software on the limited basis set forth in this SLA. All other right, title and interest in and to the Software and any enhancements or updates remain with Carbono Tecnologia.

(2) The right and license to use the Software is subject to the provision of a license key (“Key”) which is issued by Carbono Tecnologia and delivered to YOU at the beginning of YOUR license period and expires automatically on the end of YOUR license period.

(3) The Software and the Key are delivered to YOU electronically by download and/or other electronic means of delivery provided by Carbono Tecnologia.

(4) Under this SLA, YOU may use the Software up to the level of use specified in this SLA, and make and install copies, including a backup copy, to support such use. The terms of this SLA apply to each copy made. YOU will reproduce all copyright notices and all other legends of ownership on each copy, or partial copy, of the Software.

(5) Under this SLA, YOU are entitled to grant any of YOUR employees the right and license to use the Software, provided that YOU have included the specific employee whom YOU grant the right and license to use the Software in the number of individual users, pursuant to Section 4 (License Fee), below. Any such grant of right and license to use the Software is restricted to the use of the Software for YOUR commercial purposes according to YOUR instructions. Private use of the Software by YOUR employees is never permitted.

(6) YOU may not 1) use, copy, modify, or distribute the Software except as provided in this SLA; 2) reverse assemble, reverse compile, or otherwise translate the Software except if and as specifically permitted by this SLA or by mandatory statutory law without the possibility of contractual waiver; or 3) sell, sublicense, rent, or lease the Software. If the applicable laws under YOUR jurisdiction allow YOU to modify the Software, e.g., in case of a defect that is not eliminated by Carbono Tecnologia within reasonable time or to establish compatibility with other software, YOU are not allowed to delegate the modification to a contractor that is or might become a potential competitor of Carbono Tecnologia.

(7) YOU must ensure that anyone who uses the Software (accessed either locally or remotely) does so only for YOUR authorized use and fully complies with the terms and conditions of this SLA. YOU must protect YOUR Key against unauthorized use by third parties. In case a third party, including YOUR employees, infringes the terms and conditions of this SLA and/or the intellectual property rights of Carbono Tecnologia, YOU must inform Carbono Tecnologia without undue delay after finding out about the infringement. Furthermore, YOU must closely co-operate with Carbono Tecnologia to stop the infringement. The same applies if YOU receive a request from an unauthorized third party to allow and grant access and use of the Software.

(8) The right and license to use the Software will expire at the termination of this SLA, pursuant to Section 3 (Term and Termination), below.

3 Term and Termination

(1) The term of this SLA starts with the issuing and delivery of the Key to YOU.

(2) The term of this SLA ends on the expiration date of the Key issued and delivered to YOU.

(3) During the term of this SLA the parties are entitled to terminate this SLA only for a good cause. In particular, Carbono Tecnologia is entitled to terminate this SLA, without prejudice to any other rights or remedies, at any time without prior written notice to YOU in the event that YOU engage in, or participate with any third party in, the unauthorized manufacture, duplication, distribution or use of the Software or otherwise infringe any other intellectual property right of Carbono Tecnologia.

(4) At the end of the term or upon termination of this SLA, YOU must destroy all copies of the Software licensed under this SLA and all Keys provided to YOU.

(5) YOU shall not be entitled to derive any rights and claims against Carbono Tecnologia by the continued use of the Software after the end of the term or upon termination of this SLA. In particular, the continued use of the Software by YOU after the end of the term or upon termination of this SLA without the explicit consent of Carbono Tecnologia cannot be interpreted as an implicit approval of Carbono Tecnologia to the continued use and/or an extension of this SLA.

4 License Fee

(1) The license fee (“Fee”) depends on the current price list effective on the day YOUR order is received by Carbono Tecnologia. The Fee is in particular subject to the number of individual users of the Software nominated by YOU to Carbono Tecnologia and the designated license period.

(2) YOU will inform Carbono Tecnologia without undue delay about any increase in the number of individual users stated in YOUR initial order, place an according supplemental order for the additional individual users with Carbono Tecnologia and pay the according additional Fee as invoiced by Carbono Tecnologia. The additional Fee depends on the current price list effective on the day YOUR supplemental order is received by Carbono Tecnologia. The additional Fee is in particular subject to the number of additional individual users of the Software nominated by YOU to Carbono Tecnologia and the designated remaining license period.

(3) The Fee plus applicable taxes is payable in advance for the whole term of this SLA in accordance to the payment terms stated in the invoice sent to YOU with the delivery of the Key.

(4) If YOU are in default with the payment of the Fee for fourteen (14) calendar days or more, Carbono Tecnologia may suspend the right and license to use the Software or immediately terminate this SLA by written notice.

(5) Any official duties, taxes, levies or fees for YOUR use of the Software have to be paid by YOU and are not included in the Fee.

5 Installation, Support and Updates

(1) The Software is installed by YOU at YOUR own risk.

(2) During the term of this SLA, pursuant to Section 3 (Term and Termination), above, and subject to payment of the Fee, pursuant to Section 4 (License Fee), above, Carbono Tecnologia hereby grants YOU the right to receive free written technical support regarding the Software. The provision of the free written technical support is subject to capacity. Support requests can be mailed to Carbono Tecnologia by postal mail, facsimile, or electronic mail. Support is only available for the latest version of the Software.

(3) During the term of this SLA, pursuant to Section 3 (Term and Termination), above, and subject to payment of the Fee, pursuant to Section 4 (License Fee), above, Carbono Tecnologia hereby grants YOU the right to receive free new versions of the Software (“Update”). Updates are delivered to YOU electronically by Carbono Tecnologia via download and/or other electronic delivery means. YOU agree that the Software automatically downloads and offers to install available Updates of the Software. YOU are not obliged to install the Updates. In the event that YOU do not install the latest Updates of the Software, the merchantability, operation and the fitness of the Software and YOUR technical possibility to use the Software for the contractually provided purpose might be affected.

(4) YOU agree that the Software automatically sends error reports to Carbono Tecnologia to support the improvement of the Software.

6 Use and Protection of YOUR Personal Data

Please note: YOU hereby declare YOUR consent to the storage and processing of YOUR Personal Data by Carbono Tecnologia in accordance with the following usage provisions:

(1) Carbono Tecnologia is entitled to collect, store, and use and process YOUR Personal Data exclusively for the conclusion and execution of this SLA.

(2) Carbono Tecnologia is entitled to publish YOUR name and the name of YOUR company in the public list of references of Carbono Tecnologia which may be provided to third parties. YOUR name and the name of YOUR company will be removed from this list after the end of the term or upon termination of this SLA.

7 Warranty and Liability

(1) The Software is provided “as is” and “as available”. Carbono Tecnologia provides YOU with no contractual warranties or conditions either expressed or implied, including but not limited to, the implied warranties or conditions of merchantability, fitness for a particular purpose, and non-infringement, regarding the Software or support. YOU assume responsibility for the selection of the Software to achieve intended results and for the installation, use and results obtained from the Software. Further, there is no contractual warranty of title, enjoyment, lack of infringement or that the operation of the Software will be uninterrupted or error-free.

(2) YOUR statutory warranty rights under this SLA are subject to the following restrictions:

a.  Carbono Tecnologia's liability regardless of negligence or fault with regard to initial defects of the Software is hereby excluded.

b.  In the event of a defect of the Software, YOU are only entitled to claim supplementary performance and delivery of the Software free of defects, pursuant to Section 5 (Installation, Support and Updates), above.

c.  In case that the supplementary performance and delivery of the Software finally fails within reasonable time or if the supplementary performance and delivery of the Software is not reasonable at all, YOU shall be entitled to withdraw from this SLA by giving written notice to Carbono Tecnologia. In the event of YOUR withdrawal from this SLA YOUR claims for damages due to the termination of this SLA are restricted to the reimbursement of the Fee paid to Carbono Tecnologia, pursuant to Section 4 (License Fee), above. The reimbursement of the Fee is limited on a pro-rata basis to the time period during which YOU are not able to use the Software.

(3) Carbono Tecnologia's liability under this SLA is furthermore subject to the following restrictions:

a.  Carbono Tecnologia is liable without any restriction 1) in case of willful misconduct or gross negligence, and 2) in case of bodily injury and/or injury of health.

b.  In case of a slightly negligent violation of a main contractual duty of this SLA, which has to be fulfilled in order to enable the execution of this SLA in an orderly manner and on whose fulfillment YOU could usually rely and whose violation would endanger the achievement of the purpose of this SLA, YOUR claims against Carbono Tecnologia under this SLA are limited to the reimbursement of the Fee paid to Carbono Tecnologia, pursuant to Section 4 (License Fee), above.

c.  Carbono Tecnologia shall not be liable for any other slightly negligent violation of any contractual and/or statutory duty. Under no circumstances Carbono Tecnologia shall be liable for any loss of use, interruption of business, or any direct, indirect, special, incidental, and/or consequential damages of any kind, including loss of, or damage to, data, lost profits, business, revenue, goodwill, or anticipated savings, even if informed of their possibility. YOU assume the entire risk as to the quality and performance of the Software.

d.  Carbono Tecnologia is not liable for damages of any kind which are caused by unauthorized use of the Software and/or use of software that is not authorized by Carbono Tecnologia. Software is authorized by Carbono Tecnologia, if and only if it is electronically signed by Carbono Tecnologia code signing certificate.

(4) The liability restrictions provided in this Section 7 are applicable to the employees, e.g., directors, software developers, sales and support staff, technicians, subcontractors and suppliers of Carbono Tecnologia.

8 Entire Agreement and Modifications

(1) This SLA constitutes the entire understanding and contract between the parties and supersedes any and all prior and contemporaneous, oral or written representations, communications, understandings, and agreements between the parties.

(2) This SLA may not be modified or amended unilaterally by YOU, including by custom, usage of trade, or course of dealing, except by an instrument in writing signed by duly authorized representatives of both parties.

(3) Carbono Tecnologia reserves the right to unilaterally change or modify any of the terms and conditions of this SLA. Carbono Tecnologia shall give written notice to YOU of any such changes. In the event of a change, YOU shall have the right to terminate this SLA for a good cause by written notice within four (4) weeks after having received the written notification from Carbono Tecnologia. In case of termination the Fee paid to Carbono Tecnologia will be reimbursed to YOU on a pro-rata basis for the remaining term of this SLA. By continuing to use the Software following Carbono Tecnologia’s notice of change, YOU accept the changes of this SLA which were unilaterally provided by Carbono Tecnologia and agree to be bound by such changes.

9 Governing Law and Attorneys’ Fees

(1) The validity and interpretation of this SLA and the rights and obligations of the parties hereunder shall be exclusively governed by the law of the Federal Republic of Brazil. The parties hereby waive the application of the rules on the conflict of laws and the United Nations Convention on the Sale of Goods (CISG).

(2) All disputes arising out of this SLA and/or in connection with this SLA shall be subject to the exclusive jurisdiction of the local court of São Paulo/SP.

(3) In any action or suit to enforce any right or remedy under this SLA or to interpret any provision of this SLA, the prevailing party shall be entitled to recover its costs, including reasonable attorney’s fees.

10 Severability and Survival

(1) In the event that any provision is found invalid or unenforceable pursuant to judicial decree or decision, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this SLA shall remain valid and enforceable according to its terms. The same applies for loop-holes in this SLA.

(2) The provisions of Sections 1, 2 (6-8) and 7 through 10 shall survive the expiration or termination of this SLA. The mandatory statutory provisions applicable between the parties remain unaffected.

 

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