Service Provision and System Access Agreement

1. DEFINITIONS

ICLASS: refers to Activia Sistemas Ltda., with its principal place of business at Rua Quinze de Novembro, 106, Suite 902, Centro, in the city of Niterói, state of Rio de Janeiro, Brazil, registered with the CNPJ (Corporate Taxpayer ID) under number 04.837.232/0001-50.

Application: refers to one or more ICLASS software applications listed in item 1, or any others that may be added to or removed from said list, at the sole discretion of ICLASS.

Fees: refers to the amounts charged by ICLASS for the subscription to or use of the Service.

Service: means access to one or more ICLASS applications—duly identified, developed or licensed, operated, and maintained by ICLASS—accessible via the website www.iclass.com.br (or another website designated by ICLASS) or via an IP address, as well as any other online or offline products and services provided to the Subscriber by ICLASS, to which the Subscriber is granted access under this Agreement.

Subscriber: means the legal entity that has subscribed to the Service, in accordance with the terms and conditions of this Agreement.

Order Form: the ICLASS order form or any auxiliary forms and terms duly completed by the Subscriber when requesting the provision of the services.

Term: refers to the initial term or any renewal term, as defined in Clause Seven below.

User: refers to the Subscriber’s employees, representatives, consultants, suppliers, clients, or agents who are affiliated with the Subscriber and authorized by the Subscriber to use the Service, and for whom unique user identifications and passwords have been provided by the Subscriber (or by ICLASS, upon the Subscriber’s written request). 

Subscriber Area: refers to a specific space on the ICLASS website where all of the subscriber’s registration information will be located, as well as their list of users, payment documents, contract details, etc.

2. ACCESS TO THE SERVICE

As part of the Service, ICLASS will provide the Subscriber with means of accessing the Service, including a web browser interface for accessing data and importing and exporting information. The Subscriber’s registration or use of the Service will constitute acceptance of this Terms of Use Agreement (the “Agreement”), including all materials and conditions available on the ICLASS website, including, without limitation, ICLASS’s privacy rules and security policies.

The Service is offered for the following applications:

– IClass Field Service Web

– IClass Field Service Mobile

3. TERMS OF SERVICE FOR ICLASS APPLICATIONS

3.1. Terms of Service

The Subscriber acknowledges and agrees to all terms described herein. Furthermore, the Subscriber agrees that, unless otherwise stated, any new feature or change that modifies or improves the Service, and/or any new service subsequently contracted by the Subscriber, will also be subject to this Agreement.

3.2. Internet Access

To use the Service, the Subscriber must have access to the Internet, either directly or through devices that access Internet-based content, under conditions that allow satisfactory use of the Service. The Subscriber must also provide all equipment necessary to establish and maintain an Internet connection.

3.3. Subscriber Registration

The Subscriber agrees to provide accurate, current, and complete information about the Subscriber (“Registration Data”), as requested in the registration form, which must be completed by the Subscriber on the website designated by ICLASS in order to access the Service. The Subscriber agrees to use its best commercially reasonable efforts to maintain and promptly update the Registration Data so that it remains accurate, current, and complete. The Subscriber acknowledges and agrees that, if it provides information that is intentionally incorrect, outdated, or incomplete, or if ICLASS has reasonable grounds to believe that such information is false, incorrect, outdated, or incomplete, ICLASS has the right to suspend or terminate the Subscriber’s account.

3.4. Email and Other Communications

The Subscriber agrees to provide ICLASS with its electronic mail address (“email”), promptly inform ICLASS of any change to that address, and accept messages and other communications from ICLASS sent to the Subscriber’s email address. Unless otherwise provided in this Agreement, the Subscriber further agrees that ICLASS may provide any and all notices, instructions, and other communications to the Subscriber by email or by posting them on websites.

3.5. Passwords, Access, and Notifications

The maximum number of users the Subscriber may designate under its account shall be equal to or less than the number of access subscriptions contracted and duly paid for by the Subscriber. The Subscriber may provide and assign unique passwords and usernames to each authorized user for each paid access subscription. The Subscriber acknowledges and agrees that it is prohibited from sharing passwords and/or usernames with unauthorized users and that it shall be solely responsible for the confidentiality of passwords and usernames and for its users’ use of the Service.

3.6. Third-Party Software

The Subscriber agrees to use software produced by third parties, including, without limitation, web browsers, only in versions approved and recommended by ICLASS. Until otherwise notified by ICLASS, the Subscriber agrees to use software that supports Secure Socket Layer (SSL) or other protocols accepted by ICLASS and to follow secure access procedures for services that support such protocols. The Subscriber acknowledges that ICLASS is not responsible for notifying the Subscriber of any updates, fixes, or improvements to any software, or for any compromise of data transmitted through computer networks not owned or operated by ICLASS or through telecommunications facilities, including, without limitation, the Internet.

3.7. Data Transmission

ICLASS employs security measures designed to protect information and data. However, the Subscriber understands that the electronic processing and transmission of the Subscriber’s data are fundamentally necessary for the Subscriber’s use of the Service. The Subscriber agrees that ICLASS shall not be liable for any electronic communications and/or Subscriber data that are lost, altered, intercepted, or stored without authorization during transmission to any servers or websites not owned and/or operated by ICLASS.

3.8. Subscriber Content

a. Some areas of the Service may allow the Subscriber to post content, such as data and other content or information (materials that a Subscriber submits, posts, or makes available in specific areas). The Subscriber retains ownership of its Content.

b. In connection with its Content, the Subscriber affirms, represents, and warrants that the Content made available by the Subscriber and its use by ICLASS as provided in this Agreement do not violate any law or infringe any third-party rights, including, without limitation, intellectual property rights and privacy rights. ICLASS assumes no responsibility and shall not be liable for any Content made available by the Subscriber or its users. The Subscriber shall be solely responsible for its Content. ICLASS reserves the right, at its sole discretion, to delete or remove any Content at any time without prior notice.

3.9. Proprietary Rights

a. The Subscriber acknowledges and agrees that the Service and any necessary software used in connection with the Service contain proprietary and confidential information protected by applicable intellectual property and other laws. The Subscriber acknowledges and agrees that content or information presented to the Subscriber through the Service may be protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws.

b. Each party retains all right, title, and interest in its data, information, and intellectual property rights, and nothing in this Agreement is intended to transfer or diminish such rights. The parties also acknowledge and agree that ICLASS holds all right, title, and interest in the Service and its components. The Subscriber’s use of the Services is authorized solely for the purposes set forth in this Agreement, and upon expiration or termination of this Agreement for any reason provided herein, such authorization shall cease.

c. The Subscriber undertakes not to use the data of ICLASS and/or any third party, as well as the data of its own Users, in any manner contrary to the guidelines and provisions of the Brazilian General Data Protection Law (Law No. 13,709/2018). The Subscriber further undertakes to include in the agreements it enters into with its Users clauses requiring compliance with and respect for the guidelines and provisions of the aforementioned Brazilian General Data Protection Law (Law No. 13,709/2018), holding ICLASS harmless from any liability arising from any failure to comply with the provisions agreed herein, including bearing any resulting losses and damages.

3.10. Confidentiality

Each contracting party receiving Confidential Information (the “Receiving Party”) shall safeguard, and require its employees, representatives, and contractors to safeguard, all Confidential Information of the other party (the “Disclosing Party”). “Confidential Information” means: (i) the terms and conditions of this Agreement; (ii) all commercial terms and conditions agreed between the Subscriber and ICLASS; (iii) the Service, as well as the results of any performance tests of the Service or similar tests, whether conducted by ICLASS, the Subscriber, or a third party; and (iv) all information, whether in writing or another tangible form, that has been legibly marked by the Disclosing Party as “confidential” or “proprietary,” or that, although not so marked, is identified as confidential at the time of disclosure and subsequently summarized and confirmed as confidential in a written document sent to the Receiving Party within ten (10) days after disclosure.

The Receiving Party shall protect the Disclosing Party’s Confidential Information in the same manner as it protects its own Confidential Information, but in no event with less than reasonable care. Confidential Information shall remain the exclusive property of the Disclosing Party and shall not be disclosed to any third party without the Disclosing Party’s express written consent, except solely to employees, representatives, advisers, attorneys, consultants, and subsidiaries who need to know such information and who are bound, under a written agreement with the Receiving Party, to keep such Confidential Information confidential in accordance with this Agreement.

Confidential Information shall not include any information that: (i) is or becomes publicly available without any breach by the Receiving Party of its obligations to the Disclosing Party; (ii) was known to the Receiving Party before its disclosure by the Disclosing Party; (iii) becomes known to the Receiving Party from a source other than the Disclosing Party without breach of a confidentiality obligation owed to the Disclosing Party; or (iv) is independently developed by the Receiving Party. Notwithstanding the foregoing, ICLASS may disclose that the Subscriber is its customer. In addition, either party may disclose information pursuant to applicable law or a court order, provided that the Disclosing Party is promptly notified of such disclosure.

Notwithstanding the foregoing, ICLASS may use aggregated information to measure general service usage patterns and the characteristics of its user base, and may include aggregated information about its audience in promotional materials or reports to third parties. Such aggregated information shall not refer to names, telephone numbers, email addresses, or other personally identifiable information, and shall not be traceable to a specific recipient or user email address. ICLASS may assign its rights under this Agreement to third parties at its sole discretion.

3.11. Storage Limits

The Subscriber acknowledges and agrees that ICLASS is not required to establish storage limits for use of the Service and that ICLASS reserves the right, at its sole discretion, to establish or change storage limits at any time without prior notice. Any storage limits that may be established shall apply to all Services provided under this Agreement.

3.12. Service Rules

a. The Subscriber agrees not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including, without limitation, by any automated or non-automated means; (ii) using any automated system, including, without limitation, “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more requests to ICLASS servers than a human could reasonably produce in the same period using a conventional online web browser, except where ICLASS grants revocable permission to use tools to copy materials from www.iclass.com.br for the sole purpose of, and solely to the extent necessary for, creating publicly available searchable indexes of the materials, but not temporary or permanent storage of such materials; (iii) transmitting spam, chain letters, or unsolicited email; (iv) attempting to interfere with or compromise system integrity or security, or decipher any transmission originating from the servers providing the Service; (v) taking any action that imposes or may impose, at ICLASS’s discretion, an unreasonable or disproportionate load on the Service infrastructure; (vi) uploading invalid data, viruses, worms, or other malicious software agents through the Service; (vii) collecting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial purposes; (ix) impersonating another person or misrepresenting affiliation with a person or entity, engaging in fraud, or attempting to conceal one’s own identity; (x) interfering with the operation of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing measures that may be used to prevent or restrict access to the Service, including, without limitation, features that prevent or restrict the use or copying of any Content or impose limitations on the use of the Service or its content.

b. In the event of a breach by the Subscriber of this clause and/or any provision of this Agreement, ICLASS may temporarily or permanently cancel or suspend the Subscriber’s access to the Service without prior notice, in view of the speed of electronic communications and the harmful consequences that may arise. However, ICLASS shall subsequently notify the Subscriber electronically within twenty-four (24) hours of the cancellation or suspension of the Subscriber’s access to the Service, so that the Subscriber may, if it wishes, respond regarding the incident, also within twenty-four (24) hours of receiving the electronic notification. In the event of termination, the Subscriber shall remain bound by this Agreement.

c. As the creator and developer of the Service, ICLASS may, if it deems it necessary to improve the performance of the Service, change the Service, modify or remove Service features for subscribers or users generally, or establish or change usage limits for the Service, without prior notice.

4. RESTRICTIONS AND RESPONSIBILITIES

a. This is an agreement solely for access to the Service, and the software comprising the Service shall be made available and maintained exclusively by ICLASS. No license shall be granted and no ownership rights shall be assigned to the Subscriber under this Agreement. The Subscriber agrees not to directly or indirectly reverse engineer, decompile, disassemble, or attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services or of any application, software, documentation, or data related to the Services (“Software”). The Subscriber agrees not to modify, translate, or create derivative works based on the Services or any Software, or to copy, rent, lease, distribute, pledge, assign, or transfer the access rights granted under this Agreement. The Subscriber further agrees not to use the Services on a shared basis for the benefit of a third party, or to remove any proprietary notices or labels.

The Subscriber agrees and warrants that it will use the Services only in accordance with ICLASS’s then-current usage policies (the “Policy”) and all applicable laws, including, without limitation, policies and laws relating to spam, privacy, intellectual property, child protection, obscenity, or defamation. The Subscriber agrees to indemnify and hold ICLASS harmless against any damages, losses, liabilities, and expenses, including court costs and attorneys’ fees, in connection with any claim or action resulting from an alleged breach of the terms of this Agreement. Although ICLASS has no obligation to monitor the content provided by the Subscriber or the manner in which the Subscriber uses the Service, ICLASS may do so and may remove any content or prohibit any use of the Service that it believes may be, or is alleged to be, in breach of the terms of this Agreement.

b. The Subscriber shall be responsible for obtaining and maintaining any equipment and ancillary services necessary to connect to or access the Service, including, without limitation, modems, hardware, servers, software, operating systems, networks, web servers, web services, mobile phones, smartphones, tablets, landline telephone calls, broadband connections, mobile data connections, and other related infrastructure (collectively, “Equipment”). The Subscriber shall be responsible for ensuring that such equipment and services are compatible with the Service and comply with all configurations and specifications established in ICLASS’s then-current published policies. The Subscriber shall also be responsible for maintaining the security of the Equipment, its Subscriber account, its passwords, including, without limitation, administrative and user passwords, and other files and information, for all users associated with its account.

5. FEES, BILLING, AND RENEWAL

a. Unless specifically stated otherwise by ICLASS, all Fees for use of the Services shall be paid solely to ICLASS through the payment methods defined and accepted by ICLASS under its terms. All Fees shall always be paid in advance, and access shall be granted only upon ICLASS’s actual processing of the payment. ICLASS shall make the relevant billing and payment documents for renewal for the following Term available in the Subscriber Area in a timely manner.

b. Payments made by the Subscriber under this Agreement include all taxes, based on the 2% Services Tax rate of the Municipality of Niterói, State of Rio de Janeiro. In the event of a change in the tax rate or tax classification of the Service, or any other tax-related changes, the Fees shall be adjusted to reflect the new composition. Regardless of any disputes or any Services Tax withholding by the municipal government of the Subscriber’s municipality, the Subscriber shall pay the full Fee for the contracted Service, failing which it shall be deemed delinquent and simultaneously in default, pursuant to Clause 6 below.

c. The Subscriber acknowledges and agrees that, unless it expresses its intention not to renew its subscription by submitting a specific notification through its Subscriber Area at least ten (10) business days before the expiration of the current Term, ICLASS may renew the subscription for a further Term based on the current number of users and in accordance with the commercial policy in force at the time of renewal. From that point onward, the billing documents issued shall be paid by the Subscriber, failing which it shall be deemed delinquent and simultaneously in default, pursuant to Clause 6 below.

6. NONPAYMENT AND SUSPENSION

All billing documents shall be payable in accordance with Clause 5, and the Subscriber shall be deemed delinquent if payments relating to those documents are not received by their respective due dates. ICLASS reserves the right to suspend or terminate this Agreement and any Subscriber access to the Service if the Subscriber’s account becomes delinquent.

Billing documents not paid by their due dates shall be subject to interest of 1.0% per month plus a penalty of 2% per month, or the maximum permitted by law, calculated on the amount of the debt adjusted by the IGPM/FVG index, in addition to all collection expenses, including attorneys’ fees of 20% where collection is handled by an attorney. The Subscriber shall continue to be billed for full use of the Service during any period of suspension.

If the Subscriber or ICLASS requests termination of this Agreement, the Subscriber shall be required to settle any outstanding debts, calculated in accordance with this clause and Clause 5 above, within a maximum of ten (10) business days of the termination request. The Subscriber acknowledges and agrees that ICLASS has no obligation to retain any Subscriber data, whether registration data or data generated or used during use of the Service, and that such data may be permanently deleted if the Subscriber’s account becomes delinquent.

7. REDUCTION OF THE TERM OR NUMBER OF USERS, AND TERMINATION

a. This Agreement shall commence on the effective date of consent and acceptance. Either party may terminate this Agreement or reduce the number of users by providing written notice to the other party at least ten (10) business days before the billing date for the following period. Any changes to the contracted Services shall take effect only upon the next renewal, after expiration of the current Term. Upon termination of this Agreement, provided that the Subscriber has not breached any of its clauses or conditions, ICLASS shall make a file containing the Subscriber’s data available to the Subscriber within thirty (30) days after the effective termination, if the Subscriber requests it at the time of termination. The Subscriber agrees and acknowledges that ICLASS shall have no obligation to retain the Subscriber’s data and may delete such data thirty (30) days after termination.

b. Compliance with Laws

b.1. During the performance of this Agreement and any transactions arising from it, the Subscriber undertakes to observe and comply with the provisions of Anti-Corruption Laws and to ensure compliance with Anti-Corruption Laws by its Related Parties.

c. Compliance with Anti-Corruption Laws

c.1. The Subscriber represents and warrants that, during the performance of this Agreement or any transactions arising from it: (a) it is aware of Anti-Corruption Laws, including those outside the jurisdiction in which this Agreement will be performed, and undertakes to comply with and fully observe them; (b) neither it nor its representatives, customers, agents, and/or similar persons shall offer or authorize any payment, gift, promise, or other benefit, whether directly or through any other person or entity, for the use or benefit of any public official or any person, where such payment, gift, promise, or other benefit would (i) constitute a facilitation payment; and/or (ii) violate Anti-Corruption Laws.

d. Any infringement, breach, or failure to fulfill the Subscriber’s obligations, delay in payment, or unauthorized use of ICLASS technology or the Service shall be deemed a material breach of this Agreement. ICLASS may, at its sole discretion, block the Subscriber’s password, account, or all use of the Service, and terminate this Agreement, with the Subscriber also bearing any losses and damages it causes. The Subscriber agrees and acknowledges that ICLASS has no obligation to retain the Subscriber’s data and may delete such data if it is determined that the Subscriber has breached this Agreement, under the terms described herein.

e. Clauses 2, 3, 4, 5, 6, 7, 8, 11.b, 12, 13, and 14 shall survive termination of this Agreement.

8. SUCCESSORS AND ASSIGNS

The Subscriber may not transfer or assign this Agreement or any rights or obligations arising from it without ICLASS’s prior written consent. Any attempted assignment or transfer in violation of the foregoing shall be void and shall constitute a breach of the terms hereof, with the consequences described in Clauses 5, 6, and 7.

9. USE OF TRADEMARKS

The Subscriber grants ICLASS the right to identify the Subscriber as a customer in ICLASS’s promotional materials.

10. REPRESENTATIONS AND WARRANTIES

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. ICLASS represents and warrants that it will use commercially reasonable efforts to provide the Service in a manner consistent with generally accepted industry standards reasonably applicable to its provision and substantially in accordance with ICLASS’s online help documentation under normal use and circumstances. The Subscriber represents and warrants that it has not provided any false information to gain access to the Service and that its billing information is correct.

11. INDEMNIFICATION

ICLASS shall: (i) defend or, at its discretion, settle any third-party claim against the Subscriber alleging that the Service infringes a patent, trademark, copyright, or trade secret; and (ii) pay any final, non-appealable judgment against the Subscriber relating to such claim or any settlement entered into by ICLASS on the Subscriber’s behalf, provided that the Subscriber: (i) promptly notifies ICLASS of each such claim; (ii) allows ICLASS to exercise exclusive control over the defense and/or settlement of such claim; (iii) fully cooperates with ICLASS in the defense or settlement of the claim; and (iv) takes no action that may prejudice ICLASS’s ability to defend against the claim.

If, in ICLASS’s opinion, the Service, in whole or in part, is likely to become subject to an infringement claim, ICLASS may, at its sole discretion: (i) seek to obtain the Subscriber’s right to use the Service or the affected portion thereof; (ii) replace the Service or the affected portion with other suitable software; (iii) modify the Service or the affected portion to make it non-infringing; or (iv) if none of the foregoing remedies is commercially feasible, as determined by ICLASS at its sole discretion, refund, upon return of the infringing Service, a pro rata portion, calculated on a straight-line basis over a twelve-month period, of the payments made by the Subscriber to ICLASS for use of the Service or the affected portion thereof.

ICLASS shall have no indemnification or other obligations to the extent that the claim is based on: (i) failure to use an update provided by ICLASS, if the infringement could have been avoided by using the updated version; (ii) the combination, operation, or use of the Service with other products not provided by ICLASS, if the infringement could have been avoided in the absence of such combination, operation, or use; or (iii) the Subscriber’s use of the Service in a manner inconsistent with the applicable terms and conditions.

12. DISCLAIMER OF WARRANTIES

ICLASS and its agents, representatives, and/or appointed personnel make no warranties regarding the reliability, availability, timeliness, accuracy, completeness, or suitability of the Service or any information generated through its use. In addition, ICLASS does not warrant that: (a) use of the Service will be secure, timely, uninterrupted, or error-free, or that it will operate in combination with any other hardware, software, or system; (b) the Service will meet the Subscriber’s requirements or expectations that are not defined in the Service provider’s manuals, courses, or official documentation; (c) errors or defects will be corrected, although ICLASS remains fully committed to using its best efforts toward that end; or (d) the Service or the environment in which it is hosted will be free of viruses or other harmful elements.

Except for the warranties set forth in Clause 10, the Service and all content are provided to the Subscriber strictly “as is,” and ICLASS disclaims all other conditions, representations, and warranties, whether express, implied, statutory, or otherwise, including, without limitation, any warranty of merchantability, fitness for a particular purpose, or non-infringement of third-party rights, to the extent permitted by law.

13. EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY

Without prejudice to the preceding clause, in no event shall ICLASS’s total liability for claims under this Agreement exceed the total amounts paid by the Subscriber to ICLASS during the twelve (12) months preceding the event giving rise to such claims. ICLASS shall not be liable for lost profits or any special, incidental, or consequential losses or damages, regardless of the form of action, even if ICLASS has been advised of the possibility of such losses or damages. This limitation is cumulative for any and all related claims and for all agreements entered into between ICLASS and the Subscriber.

The Service is controlled and operated from ICLASS’s facilities in Brazil. ICLASS makes no warranty that the Service is appropriate or available for use in other countries. The Subscriber acknowledges and agrees that, when accessing or using the Service from other countries, it does so at its own risk and is solely responsible for complying with all Brazilian laws and local laws and regulations, including, without limitation, import/export restrictions and any other regulations.

14. GENERAL PROVISIONS

This Agreement shall be construed, and the legal relationships between the contracting parties shall be determined, in accordance with Brazilian law. The parties designate the courts of the Judicial District of Rio de Janeiro, State of Rio de Janeiro, to resolve any disputes arising from this Agreement.

This Agreement constitutes the entire agreement between the parties concerning its subject matter and supersedes all prior terms, agreements, communications, or representations between the parties, whether oral or written. Neither contracting party has relied on any statement or representation by an employee or representative of the other party in entering into this Agreement. Any differing terms contained in the Subscriber’s documents, including preprinted terms in Commercial Proposals, shall not be accepted as valid by ICLASS.

Except as permitted herein, this Agreement may not be modified and/or amended except by a written document signed by the contracting parties. Neither party shall be deemed in default under this Agreement due to a delay or failure to perform its obligations arising from a cause beyond its reasonable control (a “Force Majeure” event), provided that it promptly gives the other party adequate notice of the Force Majeure condition and uses reasonable efforts to mitigate the delay or failure.

Tolerance of any breach of a provision of this Agreement shall not constitute acceptance of any prior, concurrent, or subsequent breach of that or any other provision hereof. Clause headings have been inserted solely for convenience and shall not affect the interpretation of any provision hereof. If any provision of this Agreement is found to be illegal, void, or unenforceable, such provision shall be limited to the extent necessary or otherwise invalidated, without affecting the validity and enforceability of the remaining provisions.