1. DEFINITIONS
1.1 “Client Data” means all data, content, or information (e.g., Client’s menus/product lists, price lists, receipts for orders submitted or received) submitted, uploaded, or otherwise made available by or on behalf of Client to Yalo (including through the Subscription Services).
1.2 “Documentation” means Yalo-provided user documentation, in all forms, relating to the Subscription Services (e.g., user manuals, on-line help files).
1.3 “Order Form” means an ordering document which references and incorporates this Agreement and describes the Subscription Services being ordered by Client, in the form attached as Exhibit A.
1.4 “Messaging Platforms” means instant messaging platforms such as WhatsApp, FB Messenger, and others with similar functionalities.
1.5 “Subscription Services” means Yalo’s system known as “Yalo Console”, “Yalo Studio”, “Yalo Commerce”, “Yalo Segmentation Suite”, “Yalo Engagement Suite”, “Yalo Profiler”, “Yalo Deep Commerce”, “Yalo Flow Builder”, “Yalo Analytics” and/or others, which consists of the systematic integration of proprietary and/or third party technology tools and platforms (including integrations with Messaging Platforms) for flow structuring, communication, segmentation, analysis, and reporting, and others for various purposes, as set forth in the applicable Order Form (Exhibit A).
2. USE OF THE SUBSCRIPTION SERVICES
2.1 Use of the Subscription Services. Subject to the terms and conditions of this Agreement, Yalo grants to Client a limited, worldwide, non-exclusive, non-transferable, non-sublicensable (except to Client’s subcontractors, approved in writing by Yalo, to use the Subscription Services solely on behalf of Client) right during the term of this Agreement to access and use the Subscription Services (excluding any open source software that may be included in or provided with the Subscription Services and subject to separate open source licenses), solely in connection with Client’s internal business operations. Client shall procure any equipment, software and connectivity necessary to access and use the Subscription Services, including any applications, URLs, Messaging Platform accounts, and additional or associated certifications. The Subscription Services are limited to the number of users, number of stores, or other applicable usage limitation measures as further set forth in the applicable Order Form. Client shall not use the Subscription Services in excess of the limitations set forth in the applicable Order Form. For the avoidance of doubt, unless expressly agreed to in the applicable SOW, the Subscription Services do not include (a) installation, settings, and or parameterization of the Subscription Services, (b) services required to deploy a new version of the Subscription Services (e.g., installation and settings), (c) assistance required by Client in exceptional cases, outside Yalo’s business hours for support (Monday – Friday, 8am – 6pm ET), (d) training of users, administrators, IT staff or any other training related to the Subscription Services, (e) services provided by Yalo that are necessary to rectify faults (whether or not they prevent use of the Subscription Services) to the extent said faults are attributable to Client’s actions, errors, negligence or non-compliance; and (f) any other similar services that are commonly the subject of a separate consulting services agreement.
2.2 Use of the Documentation. Subject to the terms and conditions of this Agreement, Yalo grants to Client a limited, worldwide, non-exclusive, non-transferable license, without right of sublicense, during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Subscription Services in accordance with this Agreement.
2.3 Technical Support Services. For so long as Client is current with its payment of any applicable fees in accordance with Section 3, Yalo will use reasonable efforts to provide Client with the service levels and support services set forth in Exhibit B.
2.4 Use Restrictions. Except as otherwise explicitly provided in this Agreement and subject to Section 2.1 with respect to open source software, or as may be expressly permitted by applicable law, Client will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties to use the Subscription Services or Documentation; (b) copy, modify, de-compile, reverse engineer, or otherwise attempt to derive the source code, algorithms, or architecture underlying the Subscription Services; (c) use the Subscription Services to provide services to third parties (e.g., as a service bureau); (d) use the Subscription Services for any benchmarking activity or in connection with the development of any competitive product; nor (e) circumvent or disable any security or other technological features or measures of the Subscription Services.
2.5 Suspension of Subscription Services. Yalo may immediately and without prior notice to Client suspend or limit the right to use the Subscription Service, including all or part of its functionalities, and (where applicable) Yalo retains the right to disconnect, shut down, block access to and/or remove any component of the Subscription Services, in whole or in part, including its data, in cases of emergency, including but not limited to the following: (a) if Client attempts to gain unauthorized access to the Subscription Service, other accounts, or computer systems or networks connected to any Yalo server by hacking, password mining or other means, (b) if requested by a governmental or regulatory authority to comply with a change in legal or regulatory requirements, (c) if required pursuant to a request from a Messaging Platform, or (d) if the quality or availability of the Subscription Services provided by Yalo to other clients is or becomes threatened by the conduct of Client, its personnel, and/or any other third party authorized by Client that in Yalo’s judgment threatens the security, integrity or availability of the Subscription Services.
2.6 Compliance with Laws. Client will use the Subscription Services and Documentation in compliance with all applicable laws and regulations.
2.7 Protection against Unauthorized Use. Client will use reasonable efforts to prevent any unauthorized use of the Subscription Services and Documentation and immediately notify Yalo in writing of any unauthorized use that comes to Client’s attention. If there is unauthorized use by anyone who obtained access to the Subscription Services directly or indirectly through Client, Client will take all steps reasonably necessary to terminate the unauthorized use. Client will cooperate and assist with any actions taken by Yalo to prevent or terminate unauthorized use of the Subscription Services or Documentation.
3. FEES AND PAYMENT
3.1 Fees and Payment Terms. Client will pay Yalo the fees and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes, as specified in the applicable Order Form. All fees for Subscription Services are subscription based and not based on usage parameters. Unless otherwise specified in an Order Form, all fees for Subscription Services will be billed annually in advance and may be increased in accordance with inflation. Client will pay all amounts due within 30 days of the date of the applicable invoice. Fees for any Specialized Services shall be set forth in the applicable SOW. For the avoidance of doubt, quantities of any Subscription Services or Specialized Services in an Order Form cannot be decreased by Client during the subscription term identified in such Order Form. [Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Client will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Yalo to collect any amount that is not paid when due. If any fees owed by Client under this Agreement are 30 days or more overdue, Yalo may, without limiting its other rights and remedies, accelerate Client’s unpaid fee obligations under this Agreement so that all such obligations become immediately due and payable, and Yalo may suspend the Subscription Services until such amounts are paid in full or terminate this Agreement.] Amounts due from Client under this Agreement may not be withheld or offset by Client against amounts due to Yalo for any reason. All amounts payable under this Agreement are in U.S. dollars and are non-cancelable and non-refundable unless otherwise specifically provided for in this Agreement.
3.2 Taxes. Other than net income taxes imposed on Yalo, Client will bear all taxes, duties, and other governmental charges resulting from this Agreement.
4 SPECIALIZED SERVICES
4.1 Provision of Specialized Services. Yalo offers certain professional services, including consulting, installation, customization, settings, maintenance and other services related to the Subscription Services (“Specialized Services”). Such Specialized Services are purchased and described via one or more statements of works, which shall be on the form attached as Exhibit C (each a “SOW”). Once executed by both parties, each SOW will be a unique agreement that incorporates the terms of this Agreement and stands alone with respect to all other SOWs. If there is a conflict between the terms of this Agreement and the terms of an SOW, the terms of this Agreement will control. Subject to the terms of this Agreement and the applicable SOW, Yalo will use commercially reasonable efforts to provide the applicable Specialized Services to Client. The services can be refined during the analysis and design stage, based on a more detailed understanding of the functional requirements and the Client's business landscape. Based on the above, the precision needed to determine the time and cost of the development and testing phase will occur at the end of the analysis and design stage, which may lead to changes in the final cost set in the SOW, according to the results and the negotiation of the new scope, deadlines and resources required for the services.
4.2 Deliverables. Yalo retains all right, title, and interest, including all intellectual property rights, in and to any work product or other materials created by Yalo in connection with its performance of Specialized Services (“Deliverables”). If Yalo provides any Deliverables to Client pursuant to the Specialized Services, Yalo hereby grants to Client a non-exclusive, royalty-free, fully paid up, worldwide license under Yalo’s rights in the Deliverables to use and exploit such Deliverables solely in connection with the Subscription Services during the term of this Agreement. For the avoidance of doubt, Yalo may perform, reproduce, and/or publicly display, in whole or in part, any publicly available (including via the Messaging Platforms) Deliverables (and/or their functionalities) on Yalo’s website, in printed advertising materials, or in audiovisual materials produced by Yalo for the purpose of serving as a sample of Yalo’s work.
5 PROPRIETARY RIGHTS
5.1 Reservation of Rights. Client will not have any rights to the Subscription Services or Documentation except as expressly granted in this Agreement. Yalo reserves to itself all rights to the Subscription Services and Documentation not expressly granted to Client in accordance with this Agreement.
5.2 Client Data. As between the parties, Client owns all right, title and interest in and to the Client Data provided to Yalo. Client grants to Yalo a worldwide, irrevocable, perpetual, non-exclusive license to use such Client Data in order to provide the Subscription Services to Client.
5.3 Aggregated Data. As between the parties, Yalo solely owns the aggregated and de-identified statistical data derived from the operation of the Subscription Services, including, without limitation, the performance results for the Subscription Services (the “Aggregated Data”). Nothing in this Agreement will be construed as prohibiting Yalo from utilizing the Aggregated Data for purposes of operating Yalo’s business. Yalo will not disclose to any third party any Aggregated Data that reveals the identity, whether directly or indirectly, of any individual or Client.
5.4 Feedback. If Client provides any feedback to Yalo concerning the functionality and performance of the Subscription Services (including identifying potential errors and improvements), Client hereby assigns to Yalo all right, title, and interest in and to the feedback, and Yalo is free to use the feedback without payment or restriction.
6. TERM AND TERMINATION
6.1 Term. This Agreement will commence upon acceptance of this Agreement by Client and will continue for the initial term specified in the applicable Order Form unless terminated earlier in accordance with the terms of this Agreement. This Agreement will auto-renew for additional one-year terms, unless otherwise set for in the applicable Order Form.
6.2 Termination. Either party may terminate this Agreement upon 30 days’ prior written notice to the other party in the event that (a) a party commits any action that directly impedes the provision of the Subscription Services, (b) a party has provided false data or documents, which prevents the correct provision of the Subscription Services, to the other party, (c) a party files for any form of bankruptcy or suffers a civil, commercial, labor or tax lien, which may affect the material performance hereof, or (d) a party commits a material breach of this Agreement and that breach is not cured during the 30-day notice period.
6.3 Post-Termination Obligations. If this Agreement is terminated for any reason, Client will pay to Yalo all fees or other amounts still owing under this Agreement, any Order Form or any SOW, any and all liabilities accrued prior to the effective date of the termination will survive, and Client will provide Yalo with a written certification signed by an authorized Client representative certifying that all use of the Subscription Services and Documentation by Client has been discontinued. The following provisions will survive any expiration or termination of this Agreement: Sections 2.4 (Use Restrictions), 5.1 (Reservations of Rights), 5.4 (Feedback), 6.3 (Post-Termination Obligations), 7.3 (Disclaimer), 9 (Client Indemnification), 10 (Limitation of Liability), 12 (Confidential Information) and 15 (General). Any obligations of confidentiality under Section 12 will remain in full force in effect for three (3) years following the termination of this Agreement.
7. WARRANTIES AND DISCLAIMER; MESSAGING PLATFORM COMPLIANCE
7.1 Mutual Warranties. Each party represents and warrants to the other that: this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
7.2 By Client. Client represents and warrants to Yalo that Client (a) has the necessary licenses, rights, consents, and permissions to: (i) provide the Client Data to Yalo, (ii) authorize Yalo to access and use the Client Data as necessary to provide the Subscription Services, and (iii) use, run, manage and/or generally integrate with web services available through third parties and/or Messaging Platforms, and (b) is in compliance with, and shall remain in compliance with, any terms and conditions of use applicable to the Messaging Platforms.
7.3 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7, YALO MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. YALO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. YALO DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SUBSCRIPTION SERVICES. YALO DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SUBSCRIPTION SERVICES WILL BE SECURE OR UNINTERRUPTED. YALO DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SUBSCRIPTION SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SUBSCRIPTION SERVICES WILL ALWAYS BE AVAILABLE. YALO EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF CLIENT’S USE OF THE SUBSCRIPTION SERVICES. ALL OPEN SOURCE SOFTWARE AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED AS IS AND ANY REPRESENTATION OR WARRANTY CONCERNING THE FOREGOING IS STRICTLY BETWEEN CLIENT AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN SOURCE SOFTWARE AND THIRD-PARTY MATERIALS.
7.4 Messaging Platform Compliance. Client agrees to execute any documents and submit any information and documentation reasonably required by the Messaging Platforms, whether directly or through Yalo. If Client fails to comply with the requirements of the applicable Messaging Platforms, Yalo may, without prejudice to its power to terminate this Agreement, or immediately suspend, without liability, the provision of the Subscription Services, as the Subscription Services are subject to Client’s acceptance of the terms and conditions of use applicable to the Messaging Platforms.
8. INTELLECTUAL PROPERTY INFRINGEMENT
8.1 Defense of Infringement Claims. Yalo will, at its expense, either defend Client from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Client alleging that Client’s use of the Subscription Services infringes or misappropriate any patent, copyright, trade secret, trademark, or other intellectual property right during the term of this Agreement if: Client gives Yalo prompt written notice of the Claim; Client grants Yalo full and complete control over the defense and settlement of the Claim; Client provides assistance in connection with the defense and settlement of the Claim as Yalo may reasonably request; and Client complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing Subscription Services). Client will not defend or settle any Claim without Yalo’s prior written consent. Client will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Yalo will have sole control over the defense and settlement of the Claim.
8.2 Indemnification of Infringement Claims. Yalo will indemnify Client from and pay all damages, costs, and attorneys’ fees finally awarded against Client in any Claim under Section 8.1; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Client in connection with the defense of a Claim under Section 8.1 (other than attorneys’ fees and costs incurred without Yalo’s consent after Yalo has accepted defense of the Claim); and all amounts that Yalo agrees to pay to any third party to settle any Claim under Section 8.1.
8.3 Exclusions from Obligations. Yalo will have no obligation under this Section 8 for any infringement or misappropriation to the extent that it arises out of or is based upon use of the Subscription Services or Deliverables in combination with other products or services; Subscription Services or Deliverables provided to comply with designs, requirements, or specifications required by or provided by Client; use of the Subscription Services or Deliverables by Client for purposes not intended or outside the scope of the license granted to Client; Client’s failure to use the Subscription Services or Deliverables in accordance with instructions provided by Yalo; any modification of the Subscription Services or Deliverables not made or authorized in writing by Yalo; or (f) Client’s violation of any terms and conditions of use applicable to the Messaging Platforms.
8.4 Limited Remedy. This Section 8 states Yalo’s sole and exclusive liability, and Client’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Subscription Services.
9. CLIENT INDEMNIFICATION
9.1 Defense. Client will defend Yalo from any actual or threatened third party Claim arising out of or based upon Client’s use of the Subscription Services or Client Data or Client's breach of any of the provisions of this Agreement if: Yalo gives Client prompt written notice of the Claim; Yalo grants Client full and complete control over the defense and settlement of the Claim; Yalo provides assistance in connection with the defense and settlement of the Claim as Client may reasonably request; and Yalo complies with any settlement or court order made in connection with the Claim. Yalo will not defend or settle any Claim without Client’s prior written consent. Yalo will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Client will have sole control over the defense and settlement of the Claim.
9.2 Indemnification. Client will indemnify Yalo from and pay all damages, costs, and attorneys’ fees finally awarded against Yalo in any Claim under Section 9.1; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Yalo in connection with the defense of a Claim under Section 9.1 (other than attorneys’ fees and costs incurred without Client’s consent after Client has accepted defense of the Claim); and, all amounts that Client agrees to pay to any third party to settle any Claim under Section 9.1.
10. LIMITATIONS OF LIABILITY
10.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, YALO WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CLIENT FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF YALO IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
10.2 Cap on Liability. EXCEPT FOR BREACHES OF CONFIDENTIALITY UNDER SECTION 12 BELOW, UNDER NO CIRCUMSTANCES WILL YALO’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO YALO DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
10.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY YALO TO CLIENT AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
11.DATA PROTECTION AND SECURITY
Client agrees to comply with Yalo Data Privacy and Security Addendum
12.CONFIDENTIAL INFORMATION
12.1 Definition. “Confidential Information” means any information disclosed by either party to the other party, directly or indirectly, in writing, orally, or by inspection of tangible objects (including documents), which is designated as “Confidential,” “Proprietary,” or some similar designation or that a reasonable person would or should know under the circumstances is confidential or proprietary. Information communicated orally will be considered Confidential Information if the information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information may also include information disclosed to the disclosing party by third parties. Confidential Information will not, however, include any information that (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; (d) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
12. 2 Non-use and Nondisclosure. Each party will not use the other party’s Confidential Information for any purpose except in connection with its obligations under this Agreement. Each party will not disclose the other party’s Confidential Information to third parties or to such party’s employees, except to those employees of the receiving party who are required to have the information. A party may disclose the other party’s Confidential Information if required by law so long as the receiving party gives the disclosing party prompt written notice of the requirement prior to the disclosure and assistance in obtaining an order protecting the information from public disclosure.
12.3 Maintenance of Confidentiality. Each party will take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the other party’s Confidential Information. Without limiting the foregoing, each party will take at least those measures that it takes to protect its own most highly confidential information and, prior to any disclosure of the other party’s Confidential Information to its employees, will have the employees sign a non-use and nondisclosure agreement that is substantially similar in content to this Agreement.
13. LABOR RELATIONSHIPS
13. 1 The Parties agree that each one shall comply with its obligations hereunder with technical elements and its own duly trained personnel, under its subordination, direction and dependence, for which reason the Parties expressly agree that it shall not have any labor relationship between them and/or with the workers, employees or contractors that its counterpart has hired or hires as a result of the obligations assumed hereunder.
13.2 From the foregoing, the Parties each of them constitute themselves as the sole employers of the personnel they use for the purpose hereof, and shall be solely responsible for all obligations derived from the labor relationship with them under the relevant legal provisions, as well as for the payment of salaries, indemnities, professional risks and other obligations in labor and social security matters.
14. DATA SERVICES ABOUT THE TYPES OF “DATA” GROUPS.
14.1 Personal Data. Any terms not defined in this clause shall have by default the definition set forth in the Mexican Federal Law for the Protection of Personal Data Held by Private Parties, its Regulations and/or related local Legislation (the “Personal Data Law”).
14.2 Yalo Personal Data Bases. The Parties agree that, as part of its business model, Yalo creates and manages databases of Personal Data under its care, which it obtains and has obtained from different means (the “Yalo Personal Data Bases”). For purposes of the Data Protection Law, Yalo is the Controller of the Personal Data comprising the Yalo Personal Data Bases and the owner of any rights that may derive therefrom.
14.3 Client Data Bases: Client shall transfer and provide Yalo with all “Operational” information that Yalo may need in order to perform the Services in a timely manner. This information, as mentioned above, includes but is not limited to i) information relating to the proper settings of the Bot such as trademarks, names, logos, and other commercial information ii) information from product catalogs, product images, descriptions, presentations, and pricing, for proper setting of the commerce suite iii) information on distribution centers, sales structure and rtm, sales routes and distribution, iv) information derived from the ERP including omnichannel sales, in values, units, boxes, and other sales details, opened by clien , brands, sub-brands, families, category and skus v) stores identification information in its ERP, as well as other general information of said stores when available, or segmentation information by client profile, among other information of different nature. For the purposes hereof, all this information is referred to globally as “Client Operational Data Bases”
Client agrees that it shall eventually transfer to Yalo, Personal Data of its consumers, and/or B2B clients (stores), and/or distributors and other individuals, in order for Yalo to be able to provide the Service. For the purposes hereof, all said information is generally referred to as the “Client Personal Data Bases” and together with the Client Operational Data Bases, the "Client Data Bases".
Any case in which Client transfers to Yalo Personal Data to provide the contracted services, the Client shall do so on the understanding that the Client agrees and warrants that it has obtained the consent of the applicable Data Subjects to make such transfer in accordance with the Data Protection Law and ensuring that Yalo can carry out the activities set forth in this Agreements.
14.4 Yalo Processed Databases. The Parties agree that, as part of the business model, and in order to deploy Deep Conversational Commerce, Yalo creates and manages processed databases, consumption and purchase profiles and other information obtained by Yalo independently through different means, including but not limited to, conversational interactions, statistical inferences, proprietary data analysis, predictive modeling, and/or machine learning, among other possible processes to obtain processed databases. These databases created by Yalo are referred to for the purposes of the Yalo service as “Yalo Processed Data Bases”. Yalo owns any rights that may be derived from said databases. In the event that the Yalo Processed Databases shared with Client constitute an intellectual creation of Yalo by reason of their selection and arrangement, Yalo grants Client a license to use them for purposes of this MSA, during its term and the terms of its attachments.
For purposes of providing the Services to Client, Yalo, at its sole discretion, may provide Client with access to the Yalo Processed Data Bases or other databases.
14.5 Service Data Bases. For purposes of providing the Services of Deep Conversational Commerce to Client, Yalo shall create new Personal Data data bases and other data by aggregating, combining and analyzing certain elements of i) the Yalo Personal Data Bases, as relating to the Data Subjects with whom Yalo has contact through the Messaging Platforms as a result of providing the Services to Client (the “Service Users”); ii) Client Data Bases, and the iii) Yalo Processed Data Bases. These new bases shall be referred as the “Service Data Bases”.
For the purposes of the Data Protection Law, Yalo is the Controller of the Personal Data comprising the Service Data Bases.
The Service Data Bases shall be created, populated and modified at Yalo’s own discretion, especially in regards to the administration of Opt-ins and Opt-Outs in accordance with the applicable legislation. Opt-in, meaning when a Service User authorizes Yalo, through the Messaging Platforms or otherwise, to be contacted per the terms of the relevant Terms and Conditions and Privacy Notice of the “Deep Commerce Program”. Opt-Out, meaning when Service User requests Yalo through the Messaging Platforms or otherwise to (i) exclude or unsubscribe them from any Client or Yalo database; or (ii) not receive messages related to Client’s products or services.
In addition, when properly agreed between the Parties, Yalo may deliver to Client aggregated and disaggregated data reports compiled from the Service Data Bases, subject to the terms hereof and its exhibits signed by the Parties.
The Parties acknowledge and agree that the access to or communication of the Service Data Bases that Yalo grants to Client, to the extent they include Personal Data, shall be considered a Transfer of Personal Data pursuant to the Data Protection Law. In this case, it will be the Client's responsibility to comply with all of its obligations as the Controller and transferee, in accordance with the Data Protection Legislation.
14.6 Yalo/Client Database. The Parties agree that, in the event of termination hereof or any of its Exhibits for any cause,Yalo shall transfer and provide to Client the following (the “Yalo/Client Data Bases”): i) an unabridged copy of the consolidated Client Data Bases, together with ii) a copy of the sharable elements of the Service Data Bases, i.e., the Service Data Bases excluding any data of the Yalo Personal Data Bases and of the Yalo Processed Databases.
For Client’s protection, and so that said databases may be useful and usable; in the event that the Yalo/Client Data Bases constitute an intellectual creation by reason of their selection and arrangement, Yalo grants Client an irrevocable and perpetual license for their proper use. Once the above is done, Client shall be the Controller of the Personal Data comprising the Yalo/Client Data Bases in its possession and it will be responsible to comply with all of its obligations as the Controller and transferee, in accordance with the Data Protection Legislation.
14.7 Compliance with the Data Protection Law with respect to databases.
Each of the Parties shall have the following obligations with respect to the Personal Data comprising the databases governed by this clause, or copies thereof, in its possession:
a. Both parties shall at all times ensure and comply with the Data Protection Law in relation to the Processing and Transfer of Personal Data in their possession, in their capacity as Controllers, including the implementation of adequate security measures to protect said Personal Data.
b. Each Party shall be responsible for ensuring that the Privacy Notice it makes available to the Data Subjects from whom it collects and/or processes Personal Data pursuant to the terms hereof complies with the requirements set forth in the Data Protection Law and clearly sets forth the transfers to be made between the Parties pursuant to the terms of and for the purposes set forth in this clause. Each Party shall not be liable to the other in the event that said notice does not comply with the provisions of the applicable law.
c. The Parties shall notify each the privacy notices format covering the Personal Data Transferred in accordance with the terms of this Agreement and , unless required by law, neither Party may unilaterally modify the aforementioned Privacy Notice with respect to the Transfers of Personal Data regulated in this Clause
d. The Parties agree that any access or transmission, between them of the databases regulated in this clause shall be considered as Transfers under the Data Protection Law.
e. Both parties shall ensure that the Data Subjects of the Personal Data comprising the databases governed by this clause are consenting to any Transfers thereof under the terms of this clause, so each party can use the Personal Data in the applicable Data Bases per the terms hereof.
f. Neither party may Transfer to the other any Personal Data for which it has not obtained the applicable consent from the Data Subject or if a Data Subject has exercised a right that bars the Transfer of such data.
g. Each of the parties shall be liable to the applicable Data Subjects for any damages caused by the breach of the obligations set forth herein and its legal obligations regarding the Processing of Personal Data in its possession.
h. Each of the parties shall receive, resolve and respond to any requests, complaints and doubts from the Data Subjects of the Personal Data bases in its possession, in accordance with the terms of the Data Protection Law.
i. The Data Transfers will be made electronically, with the necessary security measures to ensure the protection of the Personal Data being Transmitted.
j. Yalo guarantees the client that in compliance with the terms required by the personal data protection legislation, it will make available to the Users of the Service, the i) Terms and Conditions of Use, as well as the ii) Privacy Notice applicable to the Users of the Service. For its part, Yalo is obliged to obtain the due consents for the provision of the Service through its platform, and to always keep the Terms of Privacy and Terms of Conditions of Use updated, guaranteeing the User access to the same, and the notification of any changes and/or updates that may arise. Yalo will use the Messaging Platforms on which it operates its own Service Platform to inform the Privacy Terms/Notice and the Terms and Conditions of Use, and to obtain such consents, -opt in- as well as to process any request for cancellation of the Service by the User -opt out-.
15. GENERAL
15.1 Independent Contractor Relationship. It is expressly agreed that the parties shall be independent contractors and that the relationship between the parties shall not constitute a partnership, joint venture, agency, or labor relationship of any kind. Neither party shall have the authority to make any statements, representations or commitments of any kind, or to take any action, which shall be binding on the other party, without the prior consent of such other party..
15.2 Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, provided, however, that Yalo may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all its assets.
15.3 Anti-Corruption and Anti-Money Laundering. The parties and their relevant directors, officers, employees and agents are and shall continue to be in compliance with all applicable laws, rules and regulations of any jurisdiction relating to bribery and corruption (“Anti-Corruption Laws”). The parties have implemented, shall maintain and shall enforce policies and procedures designed to comply with the Anti-Corruption Laws. The Parties shall never offer, pay, solicit or accept bribes in any form, including those transactions known as “Facilitation Payments” and shall take the necessary measures in relation to offers, gifts, discounts and reciprocity to and from third parties. The Parties are aware of the risks and perceptions that could arise from said circumstances and shall take all reasonable steps to minimize said risks. The parties guarantee that the goods and resources used to comply herewith shall always have a lawful origin, and also agree to strictly comply with and adhere at all times to the applicable legal provisions regarding the prevention of money laundering and/or prevention of activities with resources of illicit origin. Any breach of this Section 11.3 shall be considered a material breach of this Agreement.
15.4 Subcontractors. Yalo may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Yalo remains responsible for all of its obligations under this Agreement.
15.5 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 11.6. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
15.6 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
15.7 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of Guatemala City, Guatemala, without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
15.8 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
15.9 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Subscription Services under this Agreement is found to be illegal, unenforceable, or invalid, Client’s right to use the Subscription Services will immediately terminate.
15.10 Amendments. This Agreement may not be modified, altered, amended, or superseded except by an agreement in writing signed by authorized representatives of each party. The terms of any purchase order or other document submitted by Client that conflicts with, or in any way purports to amend or supplement, any of the terms of this Agreement are hereby specifically objected to and will be of no force or effect.
15.11 Additional Terms. Client’s use of the Subscription Services is subject to all additional terms, policies, rules, or guidelines applicable to the Subscription Services or certain features of the Subscription Services that Yalo may post on or link to from the Subscription Services (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, this Agreement.
15.12 Modification of the Service. Yalo reserves the right to modify the Subscription Services at any time (including by limiting or discontinuing certain features of the Subscription Services), temporarily or permanently, without notice, so long as the functionality of the Subscription Services is not materially reduced. Yalo will have no liability for any change to the Subscription Services, including any paid-for functionalities of the Subscription Services, or any suspension or termination of Client’s access to or use of the Subscription Services.
15.13 Entire Agreement. This Agreement, including all SOWs, Order Forms, and exhibits, is the final and complete expression of the agreement between these parties regarding Client’s use of the Subscription Services and Specialized Services (if any). This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the parties relating to professional services relating to the Subscription Services that Yalo may provide. No employee, agent, or other representative of Yalo has any authority to bind Yalo with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement
