THIS CONTRACT (THE "CONTRACT") IS ENTERED INTO BY, ON THE ONE HAND, BY BUQMX BOOKING APPS.A.P.I. DE C.V. ("BUQMX") AND ON THE OTHER HAND, BY YOU (THE "USER", JOINTLY AND SEVERALLY WITH BUQMXTHE "PARTIES" AND INDIVIDUALLY, EACH AS A "PARTY"), IN ACCORDANCE WITH THE FOLLOWING REPRESENTATIONS AND COVENANTS:
DECLARATIONS
- BUQMX declares that:
- It is a corporation duly incorporated under the laws of the United Mexican States, as evidenced by public deed 516 dated September 19, 2012, executed before the faith of Juan Carlos Ortega Reyes, Notary Public 168 of the State of Mexico.
- It is the rightful owner of all intellectual property rights to the wellness center management software called BUQMX (the "Software" or "BUQMX").
- It is its will to enter into this Agreement with the USER in order to grant it a license for the configuration, integration and use of BUQMX, in accordance with the Clauses of this Agreement.
- The USER declares that:
- It is a person with legal capacity, who has sufficient powers to enter into this Agreement.
- It is your will to enter into this Agreement with BUQMX in order to receive a license for the configuration, integration and use of the Software, in accordance with the Clauses of this Agreement.
- All information you provide or have provided to BUQMX in connection with the license agreement contained in this Agreement is true and complete.
NOW, THEREFORE, the Parties agree as follows:
CLAUSES
FIRST. SOFTWARE USE LICENSE.
In accordance with the provisions of the Federal Copyright Law, the Parties agree and acknowledge that BUQMX is and shall remain the sole owner of all intellectual property rights of BUQMX.
The parties acknowledge that BUQMX consists of software for the management of wellness centers, which will always be located within the BUQMX infrastructure and may be configured, integrated and used by the USER, as set forth in this Agreement.
BUQMX, in its capacity as owner of the intellectual property rights referred to above, in accordance with Article 30 of the Federal Copyright Law, hereby grants the USER a temporary, non-exclusive, non-transferable and non-sub-licensable, worldwide, onerous license to configure, integrate and use the Software.
The USER shall be prohibited from: (i) the reproduction, permanent or temporary, of the Software in whole or in part, by any means and in any form; (ii) the translation, adaptation, arrangement or any other modification of the Software and the reproduction of the resulting program; (iii) any form of distribution and/or exploitation of the Software or a copy thereof, including rental; and (iv) decompilation, reverse engineering of the computer program and disassembly.
Likewise, the USER shall take all necessary measures so that its employees, factors, dependents or any other third party accessing BUQMX , do not carry out the conduct prohibited in the preceding paragraph. In the event that the USER, its employees, factors, dependents or any other third party breaches the provisions of this Clause, the USER shall be liable for such breach, as well as for any damages caused to BUQMX.
BUQMX grants this license to the USER so that he/she may configure, integrate and use the Software in the physical devices he/she deems convenient, without the possibility of transferring or transferring it to a third party, without the prior consent of BUQMX. For its part, the USER agrees to maintain or acquire the necessary hardware and electrical, internet and data connections sufficient for the proper functioning of BUQMX, according to its own characteristics.
The USER shall be responsible for implementing, maintaining and updating all necessary and appropriate procedures and programs on its own system to protect the Software against computer infections, viruses, worms, Trojan horses and other code that manifest contaminating or destructive properties.
In turn, the USER agrees to comply with all local and international laws and regulations applicable to the use of BUQMX , as well as to use it only for lawful purposes.
In accordance with the provisions of Clause Seven of the Agreement, BUQMX may revoke this license in the event of noncompliance with the provisions of the preceding paragraphs.
The Parties hereby acknowledge that the present license is provided "as is" and "where is", without the USER having any obligation to provide any additional material or statement, related to the intellectual property licensed herein.
SECOND. WEB SITE CREATION SERVICE.
Through its own platform, BUQMX provides the USER with the necessary tools to create, through the use of different templates (the "Templates"), a customized website in which the BUQMX software will be configured and integrated (and which will be located within the domain: www.bux.mx/).
In the event that the USER decides to make use of the website creation service offered by BUQMX, the provision of such service shall be governed in accordance with the provisions of this Clause and the Agreement.
The Parties acknowledge that all intellectual property rights related to the Templates mentioned in the preceding paragraph are owned by a third party with whom BUQMX has entered into an agreement regulating their commercial use (the "Third Party"). In this sense, the USER shall be prohibited from: (i) the reproduction, permanent or temporary of the Templates or the website resulting from the provision of this service (the "Website"), in whole or in part, by any means and in any form; (ii) the translation, adaptation, arrangement or any other modification of the Templates or the Website and the reproduction of the resulting program; (iii) any form of distribution and/or exploitation of the Templates or the Website or a copy thereof, including rental; and (iv) decompilation, reverse engineering of the Templates or the Website and disassembly.
Likewise, the USER must take all necessary measures so that its employees, factors, dependents or any other person who accesses the Templates or the Web Site, do not carry out the conducts prohibited in the previous paragraph. In the event that the USER, its employees, factors, dependents or any other third party breaches the provisions of this Clause, the USER shall be liable for such breach, as well as for any damages caused to BUQMX.
Once the Website has been created using the Templates, it will be hosted in the Google cloud (under the domain www.buq.mx/). The administration of such hosting will be in charge of the Third Party, in accordance with the commercial agreement entered into between the Third Party and BUQMX. However, BUQMX shall be liable to the USER for any failure or error that occurs on the Website or that is related to its hosting in the Google cloud, and BUQMX shall try to remedy any failure or error in the shortest possible time.
The USER agrees to comply with all local and international laws and regulations applicable to the use of the Website, as well as to use it only for lawful purposes.
In accordance with the provisions of Clause Seven of the Agreement, BUQMX may cancel the provision of the website creation service described above in the event of non-compliance with the provisions of the preceding paragraphs.
THIRD. CONSIDERATION.
The USER authorizes BUQMX to make recurring charges to the bank card or account provided by the USER, on a monthly or annual basis, depending on the type of license purchased and the payment dates thereof.
Likewise, in case the USER decides to make use of the website creation service offered by BUQMX, he/she shall pay the amounts established in the price tables for each type of website found in BUQMX's website, within the dates indicated for such purpose. The USER authorizes BUQMX to make recurring charges to the bank card or account provided by the USER, on a monthly or annual basis, depending on the type of website to be built and the dates of payment thereof.
FOURTH. VALIDITY.
This Agreement shall remain in force as of the date on which the Parties express their consent to enter into it, in accordance with the provisions of the following Clause, and shall terminate when one of the Parties so decides, prior written notice of 5 calendar days.
FIFTH. CONSENT.
By accepting the terms and conditions of this Agreement, the Parties expressly express their consent to acquire the obligations and rights derived from this Agreement, without any other formal requirements being necessary for its perfection.
Notwithstanding the foregoing, BUQMX may at any time require the USER to sign this Agreement in its own right or through a legal representative with sufficient authority to sign it. Upon receipt of BUQMX's written request, the USER shall have a period of 5 calendar days to deliver this Agreement duly signed to BUQMX's address.
In the event of non-compliance with the provisions of the preceding paragraphs, BUQMX may terminate this Agreement early, in accordance with the provisions of Clause Seven of this Agreement.
SIXTH. CONFIDENTIAL INFORMATION.
(a) USER Information. The term "USER Information" means any information and documentation disclosed to BUQMX by USER in connection with or as a consequence of this Agreement. USER Information and BUQMX Information (as such term is defined below) may be referred to interchangeably as "Confidential Information".
(b) BUQMX Information. The term "BUQMX Information" means all data, financial information, pricing strategies and other information relating to BUQMX that you provide to USER in connection with this Agreement and the Software, whether or not identified or marked as confidential. The USER shall treat BUQMX Information as confidential and shall use the same degree of care in maintaining confidentiality as it uses for its own information of a similar nature.
(c) Use of Confidential Information. The Parties shall treat all Confidential Information as strictly confidential. The Parties shall not use or permit the use of the Confidential Information except to the extent necessary to carry out their obligations under this Agreement. The Parties shall not disclose or allow the disclosure of the Confidential Information, except to the employees and subcontractors who need to know such information in order to comply with their respective obligations under the terms of this Agreement, who have the obligation to comply with the obligations of each Party under this Clause.
(d) Disclosure and Copying of Confidential Information. The Parties shall mark all information reserved pursuant to this Section as "Confidential" in a prominent place in the document or file in which it is kept. The Parties shall exercise at least the same degree of care to preserve the confidentiality of the Confidential Information of the other Party as they exercise to protect their own information of a similar level of sensitivity, but in no event to a lesser degree of care. In the event that either Party anticipates that it may be required to release or disclose the Confidential Information of the other Party, it shall promptly notify the other Party and take such actions as may be necessary to provide such Party with a meaningful opportunity to respond as it deems appropriate.
(e) Exceptions. The obligations of each Party as recipient of Confidential Information of the other Party shall not apply if such Confidential Information: (i) is publicly known, without breach of this Clause; (ii) is provided to the other Party on a non-confidential basis by a third party who is not subject to any confidentiality obligation with respect to such information; or (iii) is independently developed by a Party without the use of or reference to the Confidential Information of the other Party.
(f) Return of Confidential Information. A Party shall return to the other Party (and, with respect to such information that cannot be returned, shall destroy) all Confidential Information of the other Party, as soon as possible upon: (i) the written request of the other Party; or (ii) the termination of this Agreement. Notwithstanding the foregoing, if the applicable law establishes BUQMX's obligation to keep any document that includes USER's Information, BUQMX may keep such document, to the extent necessary, to comply with such legal provision; to which the confidentiality provisions set forth in this Clause shall continue to apply.
(g) Third Party Information. In the event that the execution of this Agreement may generate the processing of personal data of third parties, BUQMX will provide the USER with the personal data that make up the database (the "Database") containing such information, at the time the USER requests it, while this Agreement remains in force.
In accordance with the provisions of the Federal Law for the Protection of Personal Data in Possession of Individuals (hereinafter the "Personal Data Law"), BUQMX is obliged to treat the information contained in the Database that it will provide to the USER, in accordance with the obligations conferred by the Personal Data Law and its Regulations as "Person in Charge".
In this regard, BUQMX, in its capacity as Data Processor, acquires the following obligations with respect to the Database: (i) it shall only process the personal data in accordance with the instructions of the USER; (ii) it shall not process the personal data for purposes other than those indicated by the USER; (iii) it shall adhere to the Regulations of the Personal Data Law and other applicable provisions; (iv) it shall maintain confidentiality with respect to the personal data processed; (v) shall not transfer or deliver them to third parties under any title, except in the event that the USER so determines or when required by the competent authority; (vi) shall refrain from transferring the personal data except in the event that the USER so determines, the communication derives from a subcontracting or when required by the competent authority. Any subcontracting of services by BUQMX, which implies the processing of the Database, must adhere to the provisions of Articles 54 and 55 of the Regulation of the Personal Data Law; and (vii) will eliminate the personal data processed at the end of the legal relationship with the USER or by instructions given by the USER in this regard, provided that there is no legal prevention that requires the preservation of personal data.
The USER shall be responsible for any obligation arising from any complaint, requirement, claim or action, promoted by the data owners, related to the rights of access, rectification, cancellation and opposition and/or any complaint, requirement, claim or action promoted by the National Institute of Access to Information and Data Protection (and "INAI").
BUQMX, in its capacity as Data Processor, undertakes the obligation to cooperate with the USER to comply with the requests that the holders of personal data direct to BUQMX with respect to the data covered by this clause. Notwithstanding the foregoing, BUQMX shall be liable to the USER for any complaint, requirement, claim or action against it, its shareholders, officers and/or any of its affiliates or subsidiaries, promoted by the owners of the data or the INAI, derived from the unauthorized or improper use, treatment or handling of the Database, in its capacity as Data Processor.
SEVENTH. BREACH AND EFFECTS OF TERMINATION.
In the event of breach by either Party of any of the obligations set forth in this Agreement, the affected Party shall give written notice to the other Party, stating such breach, and if such breach is not cured within five business days, the affected Party shall have the right to demand the performance of the obligation or the termination of this Agreement, without any liability whatsoever and without the need for a judicial declaration. It may also opt for termination even after having opted for performance, when such performance proves impossible to remedy. In both cases, the affected Party may claim damages caused by the non-performance of the other Party.
In the event that either Party decides to terminate this Agreement in accordance with the provisions of this paragraph, such Party shall notify the other Party by written notice, which shall take effect on the immediately following day.
The early termination of the Agreement in accordance with the provisions of this Clause will result in the revocation of the license granted by BUQMX through Clause One and entitles BUQMX to cancel the use of the Software, as well as the Website.
The waiver by either Party of the enforcement of any obligation under this Agreement upon any breach by the other Party shall not constitute a waiver of its rights upon any subsequent breach or other obligation of such other Party. Any delay or failure to exercise any right, power or remedy in the event of a breach by either Party shall not preclude the aggrieved Party from exercising such right, power or remedy thereafter.
EIGHTH. MODIFICATIONS.
No modification, amendment or waiver of any provision of this Agreement shall be valid unless made in writing and signed by the Party against whom performance may be required.
NINTH. ASSIGNMENT.
This Agreement shall inure to the benefit of and be binding upon the Parties. Neither Party may assign all or part of its rights and obligations under this Agreement without the prior written consent of the other Party.
TENTH. INDEPENDENCE.
The provisions of this Agreement are severable. If any provision of this Agreement is for any reason declared invalid, illegal or void by a competent authority, such invalidity, illegality or nullity shall not affect any other provision of this Agreement. In such event, the Parties shall promptly replace such provision with another provision that is enforceable and that preserves the original intentions of the Parties, to the maximum extent possible under applicable law.
ELEVENTH. LABOR RELATIONS.
Both Parties expressly agree and acknowledge that this Agreement does not create or constitute any labor relationship between the Parties, so that by mutual agreement they are relieved of any labor obligation regulated and sanctioned by the Federal Labor Law or by the Social Security regulations. BUQMX and the USER are independent parties, therefore, there does not exist at present, nor will exist in the future, any nexus or labor-employer relationship between BUQMX and the USER.
TWELFTH. TAXES AND CONTRIBUTIONS.
Taxes, duties and/or contributions of any nature arising from the execution of this Contract shall be paid by the person(s) and/or the Party who, in accordance with the applicable tax laws, are obliged or responsible for such payment and/or contribution.
THIRTEENTH. JURISDICTION AND APPLICABLE LAW.
This Agreement shall be governed by the laws of the United Mexican States. In the event of any controversy in connection with the interpretation, performance and execution of this Agreement, the Parties expressly submit to the jurisdiction of the competent courts of Mexico City, waiving any jurisdiction to which they may be entitled by virtue of their present or future domiciles or for any other reason.
FOURTEENTH. NOTIFICATIONS.
Any notice or other communication to be given hereunder shall be in writing and shall be deemed validly served: (i) when delivered at the address provided by each Party, whether delivered personally or through a courier service; or (ii) when sent to the e-mail address provided by each Party.
