DSmirror Terms of Service
Last modified: 1/12/2023
DSmirror service License Agreement/Enterprises & professionals
This DSmirror service License Agreement (“DSmirror agreement”) is made and entered into by and between Tecknolab and the entity or person agreeing to these terms (“Customer”). “Tecknolab” means Tecknolab VAS S.L.U., a company incorporated under the laws of the Kingdom of Spain, VAT number B87990420, with offices at Alcobendas, Av. España 17, Madrid, Spain.
This Agreement is effective as of the date Customer clicks to accept the Agreement (the “Effective Date”). If you are accepting on behalf of Customer, you represent and warrant that: (i) you have full legal authority to bind Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement. If you do not have the legal authority to bind Customer, please do not click to accept. At any moment, and by accepting this agreement, Tecknolab has the right to request from you the power/authorization to act on behalf of Custumer. This Agreement governs Customer’s access to and use of the Service. For an offline variant of this Agreement, you may contact Tecknolab for more information.
- Provision of the Services.
1.1 Services Use. Subject to this Agreement, during the Term, Customer may: (a) use the Services, (b) integrate the Services into any Application that has material value independent of the Services, and (c) use any Software provided by Tecknolab as part of the Services. Customer may not sublicense or transfer these rights except as permitted under the Assignment section of the Agreement.
1.2 Website. Tecknolab will provide the Services to Customer. As part of receiving the Services, Customer will have access to a customer area in our website (dsmirror.tecknolab.com/account), through which Customer may administer the Services.
1.3 Facilities. All facilities used to store and process an Application and Customer Data are provided by a third party provider under a specific service agreement (https://cloud.google.com/terms/) and will adhere to reasonable security standards no less protective than the security standards at facilities where Tecknolab processes and stores its own information of a similar type. Per this agreement you recognize the knowledge on the terms of service of our infrastructure provider and accepts their service, security and protection standards that Tecknolab leverages when providing our own service. Tecknolab has implemented at least industry standard systems and procedures to (i) ensure the security and confidentiality of an Application and Customer Data, (ii) protect against anticipated threats or hazards to the security or integrity of an Application and Customer Data, and (iii) protect against unauthorized access to or use of an Application and Customer Data.
This agreement will not, in any event, violate the terms and conditions with the third party provider.
1.4 Data Location. Customer may select where certain Customer Data will be stored (“Data Location Selection”) under the supported options provided, and Tecknolab will store it there in accordance with the Service Specific Terms. If a Data Location Selection is not covered by the Service Specific Terms (or a Data Location Selection is not made by Customer with respect to any Customer Data), Tecknolab may process and store the Customer Data anywhere Tecknolab or its infrastructure service providers maintain facilities. By using the Services, Customer consents to this processing and storage of Customer Data. Under this Agreement, Tecknolab is merely a data processor.
1.5 Accounts. Customer must have an Account and a Token (if applicable) to use the Services, and is responsible for the information it provides to create the Account, the security of the Token and its passwords for the Account, and for any use of its Account and the Token. If Customer becomes aware of any unauthorized use of its password, its Account or the Token, Customer will notify Tecknolab as promptly as possible. Tecknolab has no obligation to provide Customer multiple Tokens or Accounts.
1.6 New Applications and Services. Tecknolab may: (i) make new applications, tools, features or functionality available from time to time through the Services and (ii) add new services to the “Services” definition from time to time (by adding them at the URL set forth under that definition), the use of which may be contingent upon Customer’s agreement to additional terms.
- To the Services. Tecknolab may make commercially reasonable updates to the Services from time to time. If Tecknolab makes a material change to the Services, Tecknolab will inform Customer, provided that Customer has subscribed with Tecknolab to be informed about such change. It may be subjected upon Customer’s agreement to additional terms.
- To the Agreement. Tecknolab may make changes to this Agreement, including pricing (and any linked documents) from time to time. Unless otherwise noted by Tecknolab, material changes to the Agreement will become effective 30 days after they are posted, except if the changes apply to new functionality in which case they will be effective immediately. Tecknolab will provide at least 90 days’ advance notice for materially adverse changes to any SLAs (Service Level Agreements) by either: (i) sending an email to Customer’s primary point of contact; or (ii) posting a notice to the applicable SLA webpage. If Customer does not agree to the revised Agreement, please stop using the Services. Tecknolab will post any modification to this Agreement to the Terms URL.
- To the Data Processing and Security Terms. Tecknolab may only change the Data Processing and Security Terms where such change is required to comply with applicable law, applicable regulation, court order, or guidance issued by a governmental regulator or agency, where such change is expressly permitted by the Data Processing and Security Terms, or where such change:
(i) is commercially reasonable;
(ii) does not result in a degradation of the overall security of the Services;
(iii) does not expand the scope of or remove any restrictions on Tecknolab’s processing of Customer Personal Data, as described in Section 5.2 (Scope of Processing) of the Data Processing and Security Terms; and
(iv) does not otherwise have a material adverse impact on Customer’s rights under the Data Processing and Security Terms.
If Tecknolab makes a material change to the Data Processing and Security Terms in accordance with this Section, Tecknolab will post the modification to the URL containing those terms.
1.8 Service Specific Terms and Data Processing and Security Terms. The Service Specific Terms and Data Processing and Security Terms are incorporated by this reference into the Agreement.
1.9 Free license. Tecknolab provides as part of the “DSmirror Agreement” a free service where a pre-determined subset of functionality is provided to the Customer at a zero price. In this scenario, this specific type of service is designated to test and non-production workloads and Tecknolab will not assume any service level or guarantee on the content stored under the designated service. Each Customer will have the rights of having only one free provisioned service; Tecknolab owns the right to deny its provision and to cancel it when necessary with an explicit communication through the registered customer email in one month (30 days) in advance.
- Payment Terms.
2.1 Free Quota. Certain Services (Free license as described above) are provided to Customer without charge up to the restricted functionality, that may change at any moment, without notice.
2.2 Online Billing. At the end of the applicable Fee Accrual Period, Tecknolab (or any billing authorized party acting on behalf of Tecknolab) will issue an electronic bill to Customer for all charges accrued based on (i) Customer’s use of the Services during the previous Fee Accrual Period (including, if any, the relevant Fee for TSS set forth in the Fees definition below); (ii) any Committed Purchases selected; and/or (iii) any Package Purchases selected. Customer will be responsible for all Fees up to the amount set in the Account and will pay all Fees in the currency set forth in the invoice. If Customer elects to pay by credit card, debit card, or other non-invoiced form of payment, Tecknolab will charge (and Customer will pay) all Fees immediately at the end of the Fee Accrual Period. If Customer elects to pay by invoice (and Tecknolab agrees), all Fees are due as set forth in the invoice. Customer’s obligation to pay all Fees is non-cancellable. Tecknolab’s measurement of Customer’s use of the Services is final. Tecknolab has no obligation to provide multiple bills. Payments made via wire transfer must include the bank information provided by Tecknolab.
- a) All Services are VAT included if provided in Spain to entrepreneurs and professional costumers. When the entrepreneur or professional costumer is located in the UE or abroad, the prices are VAT free, and the costumer must pay VAT or any other tax applicable in the territory where its head office is located.
(b) If required under applicable law, Customer will provide Tecknolab (or any billing authorized party acting on behalf of Tecknolab) with applicable tax identification information that Tecknolab may require to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. Customer will be liable to pay (or reimburse Tecknolab for) any taxes, interest, penalties or fines arising out of any misdeclaration by the Customer.
2.4 Invoice Disputes & Refunds. Any invoice disputes must be submitted prior to the payment due date. If the parties determine that certain billing inaccuracies are attributable to Tecknolab, Tecknolab will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If the disputed invoice has not yet been paid, Tecknolab will apply the credit memo amount to the disputed invoice and Customer will be responsible for paying the resulting net balance due on that invoice. To the fullest extent permitted by law, Customer waives all claims relating to Fees unless claimed within sixty days after charged (this does not affect any Customer rights with its credit card issuer). Refunds (if any) are at the discretion of Tecknolab and will only be in the form of credit for the Services. Nothing in this Agreement obligates Tecknolab to extend credit to the Costumer.
2.5 Delinquent Payments; Suspension. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Tecknolab in collecting such delinquent amounts. If Customer is late on payment for the Services, Tecknolab may suspend the Services or terminate the Agreement for breach pursuant to Section 9.2.
- Customer Obligations.
3.1 Compliance. Customer is solely responsible for its Applications, Projects, and Customer Data and for making sure its Applications, Projects, and Customer Data comply with the Acceptable User Policy (AUP). Tecknolab reserves the right to review the Application, Project, and Customer Data for compliance with the AUP. Customer is responsible for ensuring all Customer End Users comply with Customer’s obligations under the AUP, the Service Specific Terms, and the restrictions in Sections 3.3 and 3.5 below.
3.2 Privacy. Customer will obtain and maintain any required consents necessary to permit the processing of Customer Data under this Agreement.
3.3 Restrictions. Customer will not, and will not allow third parties under its control to: (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of the Services (subject to Section 3.4 below and except to the extent such restriction is expressly prohibited by applicable law); (b) use the Services for High Risk Activities; (c) sublicense, resell, or distribute any or all of the Services separate from any integrated Application; (d) create multiple Applications, Accounts, or Projects to simulate or act as a single Application, Account, or Project (respectively) or otherwise access the Services in a manner intended to avoid incurring Fees; (e) unless otherwise set forth in the Service Specific Terms, use the Services to operate or enable any telecommunications service or in connection with any Application that allows Customer End Users to place calls or to receive calls from any public switched telephone network; or (f) process or store data, or make any use of the Services for criminal activity or in contravention of Spanish law; the law of the place of residence or where the principal offices of the customer, or of any of its delegations or subsidiaries, are located; or any applicable international law. In particular, the Customer may not use the Services to violate the privacy of third parties; to store, process and use third party data without their consent; and, in general, to perform any activity prohibited under the aforementioned legislation.
The customer releases Tecknolab from any liability for any misuse of the Services, in contravention of the terms and conditions of this agreement or applicable law. In the event of a claim against Tecknolab by third parties or government authorities, the Customer shall be liable to pay any expenses and fees arising from such claim, including attorneys’ and other professional fees, court fees and, in general, all damages caused to Tecknolab as a result of a claim against it for unauthorized use of the Services by the Customer.
3.4 Third Party Components. Third party components (which may include open source software) of the Services may be subject to separate license agreements. To the limited extent a third party license expressly supersedes this Agreement, that third party license governs Customer’s use of that third party component.
3.5 Documentation. Tecknolab may provide Documentation for Customer’s use of the Services. The Documentation may specify restrictions (e.g. attribution or HTML restrictions) on how the Applications may be built or the Services may be used and Customer will comply with any such restrictions specified.
3.6 Copyright Policy. Tecknolab provides information to help copyright holders manage their intellectual property online, but Tecknolab cannot determine whether something is being used legally or not without their input. Tecknolab responds to notices of alleged copyright infringement and terminates accounts of repeat infringers according to applicable copyright laws. If Customer thinks somebody is violating Customer’s or Customer End Users’ copyrights and wants to notify Tecknolab, Customer can contact Tecknolab by the official contact form provided mechanisms in the DSmirror service or Tecknolab corporate website.
- Suspension and Removals.
4.1 Suspension/Removals. If Customer becomes aware that any Application, Project, or Customer Data violates the AUP, Customer will immediately suspend the Application or Project and/or remove the relevant Customer Data (as applicable). If Customer fails to suspend or remove as noted in the prior sentence, Tecknolab may specifically request that Customer do so. If Customer fails to comply with Tecknolab’s request to do so within twenty-four hours, then Tecknolab may disable the DSmirror Service, and/or disable the Account (as may be applicable) until such violation is corrected.
4.2 Emergency Security Issues. Despite the foregoing, if there is an Emergency Security Issue, then Tecknolab may automatically suspend the offending DSmirror Service and/or Account. Suspension will be to the minimum extent required, and of the minimum duration, to prevent or resolve the Emergency Security Issue. If Tecknolab suspends a DSmirror Service or the Account, for any reason, without prior notice to Customer, at Customer’s request, Tecknolab will provide Customer the reason for the suspension as soon as is reasonably possible.
- Intellectual Property Rights; Use of Customer Data; Feedback.
5.1 Intellectual Property Rights. Except as expressly set forth in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data and the Application or Project (if applicable), and Tecknolab owns all Intellectual Property Rights in the Services and Software.
5.2 Use of Customer Data. Tecknolab will not access or use Customer Data, except as necessary to provide the Services to Customer.
By accepting this agreement, the Costumer agrees that Costumer’s Data may be processed in accordance with Spanish and EU law.
5.3 Customer Feedback. If Customer provides Tecknolab Feedback about the Services, then Tecknolab may use that information without obligation to Customer, and Customer hereby irrevocably assigns to Tecknolab all right, title, and interest in that Feedback.
- Technical Support Services
6.1 By Customer. Customer is responsible for technical support of its Applications and Projects.
6.2 By Tecknolab. Subject to payment of applicable support Fees, Tecknolab will provide TSS to Customer during the Term in accordance with the TSS Guidelines. Certain TSS levels include a minimum recurring Fee as described in the “Fees” definition below. If Customer downgrades its TSS level during any calendar month, Tecknolab may continue to provide TSS at the same level and TSS Fees before the downgrade for the remainder of that month.
- Deprecation of Services
7.1 Discontinuance of Services. Subject to Section 7.2, Tecknolab may discontinue any Services or any portion or feature for any reason at any time without liability to Customer.
7.2 Deprecation Policy. Tecknolab will announce if it intends to discontinue or make backwards incompatible changes to the Services specified at the URL in the next sentence. Tecknolab will use commercially reasonable efforts to continue to operate those Services versions and features identified at https://dsmirror.tecknolab.com/terms-deprecation without these changes for at least three months after that announcement, unless (as Tecknolab determines in its reasonable good faith judgment):
(i) required by law or third party relationship (including if there is a change in applicable law or relationship), or
(ii) doing so could create a security risk or substantial economic or material technical burden.
The above policy is the “Deprecation Policy.”
- Confidential Information.
8.1 Obligations. The recipient will not disclose the Confidential Information, except to Affiliates, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to keep it confidential.
8.2 Required Disclosure. Notwithstanding any provision to the contrary in this Agreement, the recipient may also disclose Confidential Information to the extent required by applicable Legal Process; provided that the recipient uses commercially reasonable efforts to: (i) promptly notify the other party of such disclosure before disclosing; and (ii) comply with the other party’s reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (i) and (ii) above will not apply if the recipient determines that complying with (i) and (ii) could: (a) result in a violation of Legal Process; (b) obstruct a governmental investigation; and/or (c) lead to death or serious physical harm to an individual. As between the parties, Customer is responsible for responding to all third party requests concerning its use and Customer End Users’ use of the Services.
- Term and Termination.
9.1 Agreement Term. The “Term” of this Agreement will begin on the Effective Date and continue until the Agreement is terminated as set forth in Section 9 of this Agreement.
9.2 Termination for Breach. Either party may terminate this Agreement for breach if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches. In addition, Tecknolab may terminate any, all, or any portion of the Services or Account (if applicable), if Customer meets any of the conditions in Section 9.2(i), (ii), and/or (iii).
9.3 Termination for Inactivity.
Tecknolab reserves the right to terminate the provision of the Service(s) upon 30 days advance notice if, for a period of 60 days (i) Customer has not accessed the Customer-Area or the Service has had no network activity; and (ii) such Customer has not incurred any Fees for such Service(s).
9.4 Termination for Convenience. Customer may stop using the Services at any time. Customer may terminate this Agreement for its convenience at any time on prior written notice and upon termination, must cease use of the applicable Services. Tecknolab may terminate this Agreement for its convenience at any time without liability to Customer.
9.5 Effect of Termination. If the Agreement is terminated, then: (i) the rights granted by one party to the other will immediately cease; (ii) all Fees owed by Customer to Tecknolab are immediately due upon receipt of the final electronic bill; (iii) Customer will delete the Software and any Customer Data; and (iv) upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party.
- Publicity. The Customer is permitted to publicly declare that he is a customer of the Services. If Customer wishes to display the Tecknolab or DSmirror trademarks in connection with use of the Services, Customer must obtain written permission from Tecknolab through the process and forms provided. Tecknolab may include the customer’s name or brands in a Tecknolab customer list, online or in promotional materials. Tecknolab may also verbally refer to the Customer as a customer of the Services. Neither party needs approval if it repeats a public statement that is substantially similar to a previously approved public statement. Any use of the Trademark Elements of one of the parties shall be to the benefit of the party owning the Intellectual Property Rights of such Trademark Elements. Either party may revoke the other party’s right to use its Trademark Elements under this Section with written notice to the other party and a reasonable period of time to stop the use.
- Representations and Warranties. Each party represents and warrants that: (a) it has full power and authority to enter into the Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable. Tecknolab warrants that it will provide the Services in accordance with the applicable SLA (if any).
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TECKNOLAB AND ITS SUPPLIERS DO NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. TECKNOLAB AND ITS SUPPLIERS ARE NOT RESPONSIBLE OR LIABLE FOR THE DELETION OF OR FAILURE TO STORE ANY CUSTOMER DATA AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH USE OF THE SERVICES. CUSTOMER IS SOLELY RESPONSIBLE FOR SECURING AND BACKING UP ITS APPLICATION, PROJECT, AND CUSTOMER DATA. NEITHER TECKNOLAB NOR ITS SUPPLIERS, WARRANTS THAT THE OPERATION OF THE SOFTWARE OR THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. NEITHER THE SOFTWARE NOR THE SERVICES ARE DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES.
- Limitation of Liability.
13.1 Limitation on Indirect Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR TECKNOLAB’S SUPPLIERS, WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
13.2 Limitation on Amount of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR TECKNOLAB’S SUPPLIERS, MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO TECKNOLAB UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
13.3 Exceptions to Limitations. These limitations of liability do not apply to breaches of confidentiality obligations, violations of a party’s Intellectual Property Rights by the other party, indemnification obligations, or Customer’s payment obligations.
14.1 By Customer. Unless prohibited by applicable law, Customer will defend and indemnify Tecknolab and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from: (i) any Application, Project, Instance, Customer Data or Customer Brand Features; or (ii) Customer’s, or Customer End Users’, use of the Services in violation of the AUP.
14.2 By Tecknolab. Tecknolab will defend and indemnify Customer and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising solely from an Allegation that use of (a) Tecknolab’s technology used to provide the Services (excluding any open source software) or (b) any Tecknolab Brand Feature infringes or misappropriates the third party’s patent, copyright, trade secret, or trademark.
14.3 Exclusions. This Section 14 will not apply to the extent the underlying Allegation arises from:
- the indemnified party’s breach of this Agreement;
- modifications to the indemnifying party’s technology or Brand Features by anyone other than the indemnifying party;
- combination of the indemnifying party’s technology or Brand Features with materials not provided by the indemnifying party; or
- use of non-current or unsupported versions of the Services or Brand Features;
14.4 Conditions. Sections 14.1 and 14.2 will apply only to the extent:
- The indemnified party has promptly notified the indemnifying party in writing of any Allegation(s) that preceded the Third-Party Legal Proceeding and cooperates reasonably with the indemnifying party to resolve the Allegation(s) and Third-Party Legal Proceeding. If breach of this Section 14.4(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party’s obligations under Section 14.1 or 14.2 (as applicable) will be reduced in proportion to the prejudice.
- The indemnified party tenders sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.
- If Tecknolab reasonably believes the Services might infringe a third party’s Intellectual Property Rights, then Tecknolab may, at its sole option and expense: (a) procure the right for Customer to continue using the Services; (b) modify the Services to make them non-infringing without materially reducing their functionality; or (c) replace the Services with a non-infringing, functionally equivalent alternative.
- If Tecknolab does not believe the remedies in Section 14.5(a) are commercially reasonable, then Tecknolab may suspend or terminate Customer’s use of the impacted Services.
14.6 Sole Rights and Obligations. Without affecting either party’s termination rights, this Section 14 states the parties’ only rights and obligations under this Agreement for any third party’s Intellectual Property Rights Allegations and Third-Party Legal Proceedings.
16.1 Notices. All notices must be in writing and addressed to the other party’s legal department and primary point of contact. The email address for notices being sent to Tecknolab’s Legal Department is firstname.lastname@example.org. Notice will be treated as given on receipt as verified by written or automated receipt or by electronic log (as applicable).
16.2 Assignment. Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where: (a) the assignee has agreed in writing to be bound by the terms of this Agreement; (b) the assigning party remains liable for obligations under the Agreement if the assignee defaults on them; and (c) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.
16.3 Change of Control. If a party experiences a change of Control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) that party will give written notice to the other party within thirty days after the change of Control; and (b) the other party may immediately terminate this Agreement any time between the change of Control and thirty days after it receives that written notice.
16.4 Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
16.5 No Agency. This Agreement does not create any agency, partnership or joint venture between the parties.
16.6 No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
16.7 Severability. If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.
16.8 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
16.9 Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
16.10 Spanish Governing Law. For all Customers, the following applies: ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES SHALL BE governed by THE LAW OF THE KINGDOM OF SPAIN (EXCLUDING ITS CONFLICT LAW PROVISIONS) AND BY THE INTERNATIONAL TREATIES SIGNED BY THE KINGDOM OF SPAIN THAT ARE APPLICABLE, WHICH THE CUSTOMER EXPRESSLY ACCEPTS.
FOR THE RESOLUTION OF ANY DISPUTE, THE CLIENT EXPRESSLY SUBMITS TO THE COURTS AND TRIBUNALS OF THE KINGDOM OF SPAIN, EXPRESSLY WAIVING ANY OTHER JURISDICTION THAT MAY CORRESPOND TO HIM. IN THIS WAY, THE CLIENT KNOWS AND ACCEPTS THAT HE CAN BE SUED BEFORE A COURT OR TRIBUNAL OF THE DOMICILE OF TECKNOLAB IN SPAIN, WITHOUT BEING ABLE TO OPPOSE ANY RULE OF TERRITORIAL JURISDICTION TO AVOID THE LAWSUIT.
FURTHERMORE, IN ORDER TO SUE TECKNOLAB, THE CUSTOMER EXPRESSLY UNDERTAKES TO SUBMIT THE CLAIM TO A COMPETENT COURT IN THE TERRITORY OF THE COUNTRY IN WHICH TECKNOLAB IS DOMICILED IN SPAIN.
Customer further agrees not to commence against Tecknolab a class action, class arbitration or other representative action or proceeding.
16.11 Amendments. Except as set forth in Section 1.7(b) or (c), any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.
16.12 Survival. The following Sections will survive expiration or termination of this Agreement: 5, 8, 9.5, 13, 14, and 16.
16.13 Entire Agreement. This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement. The terms located at a URL referenced in this Agreement and the Documentation are incorporated by reference into the Agreement. After the Effective Date, Tecknolab may provide an updated URL in place of any URL in this Agreement.
16.14 Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Agreement, and the terms at any URL. If Tecknolab provides this Agreement in more than one language for the country of your billing address, and there is a discrepancy between the English text and the translated text, the English text will govern.
- “Account” means DSmirror customer account.
- “Customer Area” means the online section of DSmirror website with private access (password based) by Customer.
- “Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.
- “Allegation” means an unaffiliated third party’s allegation.
- “Application(s)” means any web or other application Customer creates using the Services, including any source code written by Customer to be used with the Services.
- “AUP” means the acceptable use policy set forth here for the Services: https://dsmirror.tecknolab.com/terms-aup
- “Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
- “Committed Purchase(s)” have the meaning set forth in the Service Specific Terms.
- “Confidential Information” means information that one party (or an Affiliate) discloses to the other party under this Agreement, and which is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Subject to the preceding sentence, Customer Data is considered Customer’s Confidential Information.
- “Control” means control of greater than fifty percent of the voting rights or equity interests of a party.
- “Customer Data” means content provided to Tecknolab by Customer (or at its direction) via the Services under the Account.
- “Customer End Users” means the individuals Customer permits to use the Application.
- “Data Processing and Security Terms” means the terms set forth at: https://dsmirror.tecknolab.com/terms-data-processing.
- “Documentation” means the Tecknolab and Dsmirror documentation (as may be updated from time to time) in the form generally made available by Tecknolab to its customers for use with the Services at https://dsmirror.tecknolab.com.
- “Emergency Security Issue” means either: (a) Customer’s or Customer End Users’ use of the Services in violation of the AUP, which could disrupt: (i) the Services; (ii) other customers’ or their customer end users’ use of the Services; or (iii) the Tecknolab or Supplier’s network or servers used to provide the Services; or (b) unauthorized third party access to the Services.
- “Fee Accrual Period” means a calendar month or another period specified by Tecknolab in the Customer Area.
- “Feedback” means feedback or suggestions about the Services provided to Tecknolab by Customer.
- “Fees” means the applicable fees for each Service and any applicable Taxes. The Fees for each Service are set forth here: https://dsmirror.tecknolab.com/pricing.
- “High Risk Activities” means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental damage.
- “Indemnified Liabilities” means any (i) settlement amounts approved by the indemnifying party; and (ii) damages and costs finally awarded against the indemnified party and its Affiliates by a court of competent jurisdiction.
- “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, and moral rights laws, and other similar rights.
- “Legal Process” means a data disclosure request made under law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, or similar process.
- “Package Purchase” has the meaning set forth in the Service Specific Terms.
- “Project” means a grouping of computing, storage, and API resources for Customer, and via which Customer may use the Services.
- “Service Specific Terms” means the terms specific to one or more Services set forth specifically for such service.
- “Services” means the services provided as described at https://dsmirror.tecknolab.com and TSS if applicable.
- “SLA” means each of the then-current service level agreements at: https://dsmirror.tecknolab.com/terms-sla/.
- “Software” means any downloadable tools, software development kits or other such proprietary computer software provided by Tecknolab in connection with the Services, which may be downloaded by Customer, and any updates Tecknolab may make to such Software from time to time.
- “Taxes” means any duties, customs fees, or taxes (other than Tecknolab’s income/corporate tax) associated with the purchase of the Services, including any related penalties or interest.
- “Term” has the meaning set forth in Section 9 of this Agreement.
- “Terms URL” means the following URL set forth here: -https://dsmirror.tecknolab.com/terms-and-conditions.
- “Third-Party Legal Proceeding” means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).
- “Token” means an alphanumeric key that is uniquely associated with Customer’s Account or Service.
- “Trademark Guidelines” means Tecknolab’s Guidelines for Third Party Use of Tecknolab or DSmirror Brand Features, located at: https://dsmirror.tecknolab.com/terms-brand-guidelines
- “TSS” means the technical support service provided by Tecknolab to the administrators under the TSS Guidelines.
- “TSS Guidelines” means Tecknolab’s technical support services guidelines then in effect for the Services. TSS Guidelines are at the following URL: https://dsmirror.tecknolab.com/terms-tss.