SOFTWARE SERVICES PROVISION AGREEMENT (SAAS) - EMEA

1- PURPOSE OF THE AGREEMENT

1. 1.1

   By entering into one or more Purchase Orders, Client agrees to be bound by the terms of this Agreement as if it were an original party to this Agreement. The Purchase Order means the order document specifying the specific Services to be provided under this Agreement, including its annexes and supplements, and entered into between Client and Analyticalways.

2. 1.2

   Analyticalways grants to Client and Client agrees on a limited, temporary, non-transferable, and non-exclusive basis, the right to use the Services, in accordance with the terms and conditions of this Agreement and with the features contained in the subscription to the Services reflected in the applicable Purchase Order(s) (hereinafter, the “Subscription“).

   1. 1.2.1 The Subscription to Software Services does not imply the transfer of ownership of the Software, but only a license to use it for the agreed period. This Subscription is revocable and conditioned upon Client’s payment of the price and Client’s compliance with the terms and conditions set forth in this Agreement.
3. 1.3

   This right of use is only granted for the Client’s internal business, and shall not be interpreted in any case as an authorisation to transform, exploit, reproduce, distribute, carry out acts of public communication of the Software, or assign, sublicense or commercialize, partially or totally, in any way, being expressly prohibited from transferring, transferring, leasing or selling,  the right to use the license over the Software, to a third party, either in whole or in part, as well as to carry out any other act of temporary or permanent disposition of the Software, whether free of charge or for consideration, subject to royalties. Client may not use the Services for the benefit of any third party without Analyticalways’ prior knowledge and consent.

2- MINIMUM SYSTEM AND SERVICES REQUIREMENTS

1. 2.1

   The provision of the Software Services to Client requires Client’s computer systems to meet certain hardware and data requirements as described in the “Data Requirements” document defined by Analyticalways.

2. 2.2

   If the Client is prepared to make any changes to its systems, it must notify the Licensor in advance, as it may require a new integration of the systems.

3. 2.3

   In the event that the Client requires additional Services, these will be governed by the provisions and conditions established in the following Additional Services Annex (https://analyticalways.com/en/additional-services/).

4. 2.4

   The Client undertakes to:

   • (1) provide truthful, accurate, adequate and appropriate information that is necessary for the provision of the Services by Analyticalways;
   • (2) establish adequate and suitable security measures to prevent unlawful access by third parties to the Services;
   • (3) communicate to Analyticalways any type of contingency that may occur during the term of the Agreement either in the provision of the Services or in the use of the Software, such as in relation to improvement opportunities, operational difficulties or others;
   • (4) not to engage in activities that exploit, damage or threaten to damage the integrity of the Software, and in particular undertakes to:
     • (i) not to maliciously circumvent the restrictions on access to the Software;
     • (ii) not to access or attempt to access the Software by any means other than through the interface made available by Analyticalways;
     • (iii) not to upload or share any content that is illegal, harmful, contrary to morality or public order, harmful to third parties, or invades the privacy, rights or confidentiality of a third party;
     • (iv) not upload, transmit, store or make available any Software content or code that contains any virus, malicious code, malware or any component designed to damage or limit the functionality of the services offered by the Software; and
     • (v) not carry out any type of reverse engineering for the sole purpose of obtaining the source code of the Software, whether to duplicate or carry out any alterations to the Software that are not previously authorized by Analyticalways.

3- COMPENSATION FOR THE SERVICES

1. 3.1

   The Client shall pay Analyticalways the price of the contracted Services as set forth in the terms and conditions and in the corresponding Purchase Order(s), without the possibility of refund or cancellation. Client expressly accepts the commitment to pay the minimum fees set forth in the Purchase Order(s). Any increase in the amounts will be reflected in the invoiced fee using the unit prices agreed upon for the contracted subscriptions, including any discounts, if applicable.

2. 3.2

   The Client will bear the costs of travel, accommodation and subsistence allowance when requesting that the Services, such as training or consultancy, be carried out at its premises.

3. 3.3

   Invoices for the contracted Services will be issued at the beginning of the month for the provision of the Service in the determined period and payments must be made within the established period with the methodology, frequency and term indicated in the Purchase Order(s).

4. 3.4

   Any modification in the payment methodology must be previously communicated to Analyticalways, at least thirty (30) days in advance and will require the express approval of Analyticalways. The Client assumes the obligation to notify and inform Analyticalways at the following email address: [email protected] of the invoice sending emails and any relative modifications thereto.

4- SUSPENSION OF SERVICES DUE TO NON-PAYMENT

1. 4.1

   If any payments due by Client are not paid by the due date indicated in the Purchase Order, Analyticalways may, without prejudice to any other rights or actions, suspend the Service including access to the Software until such payments are made in full, provided that Analyticalways has given the Client at least seven (7) days’ notice prior to suspending the Service. The Client acknowledges and agrees that, notwithstanding any access restrictions, Analyticalways shall maintain its right to invoice for the agreed Services until all outstanding payments are settled in full. This includes any fees or charges associated with past due amounts. The Client further understands that resolution of outstanding payments is a requirement to reinstate full access to the Services.

2. 4.2

   In case of non-payment of the agreed fees for additional services originated at the Client’s request, Analyticalways may immediately suspend the additional service specified in the Purchase Order, and shall withhold any progress, work or deliverable generated until the suspension. The resumption of such service will only take place once the Client regularizes the pending payments. The Client will not be able to request cancellation or reimbursement of the additional services contracted.

3. 4.3

   Suspension of the Services for non-payment does not release the Client from its payment obligations, nor does it release Analyticalways from its legal rights to recover the owed amounts.

5- LATE PAYMENTS

6- INTELLECTUAL PROPERTY AND SERVICE MODIFICATION

1. 6.1

   Analyticalways at all times reserves exclusive ownership of all materials that it may deliver to the Client or develop during the performance of the Services and shall own all intellectual property rights, title and interest in any ideas, concepts, know-how, documentation and techniques associated with such materials, which belong automatically and exclusively to Analyticalways, without the Client acquiring any right whatsoever over them, and may use them only to the extent necessary for the performance of the Services under the Contract.

2. 6.2

   Analyticalways retains all right, title and interest in and to the Software, its codes and sequences, as well as any modifications, developments, evolutions and customizations thereof, and all intellectual property rights related to or owned by Analyticalways, such as patents, copyrights, trademarks, trade secrets and any other form of intellectual property, whether registered or unregistered.

3. 6.3

   Analyticalways offers the Services in the development conditions in which it is at the time of contracting, development status that the Client declares to be aware of and expressly accepts for each Service contracted. Analyticalways reserves the exclusive right to introduce changes or modifications in the Software or in the Services in order to offer improvements, new functionalities, features or modules for the Services.

7- SERVICE LEVEL AGREEMENT (“SLA”)

1. 7.1

   Service Level (SLA): Analyticalways guarantees that the software service will be available for a minimum of 95% of the hours of each calendar month.

   1. 7.1.1 Service Availability: To the effects foreseen in the previous paragraph, Availability will be understood as the time during which the software service is working on the service provider’s side until it reaches the Internet channel. The availability or not of the Services due to causes attributable to the Client or to its suppliers will not affect the computation of Availability of the Services.
   2. 7.1.2 Analyticalways will use commercially reasonable steps to provide the Services on an ongoing basis, except for the following cases that will not count toward the SLA calculation:
      • (i) scheduled downtimes when Analyticalways is required to perform maintenance, bug fixes, or updates to the Software;
      • (ii) downtime caused by problems in the Client’s network and/or problems with the Client’s systems, servers;
      • (iii) downtime during which the Services cannot be accessed due to utility outages (including power outages, utility provider maintenance) and/or cyberattacks, disruption of the Internet or telecommunications services;
      • (iv) downtime caused by suspension of services for non-payment in accordance with Clause 4 of this Agreement;
      • (v) and downtime caused by security breaches in accordance with Clause 8 of this Agreement;
      • (vi) any force majeure event;The foregoing is without prejudice to the fact that Analyticalways may not be liable for incidents caused by Client’s improper use or use of the Software contrary to instructions, in which case Client shall be liable for the costs of technical support and repair.
2. 7.2

   Incident response time: In the event of any incident in the use of the Services, the maximum first response time will be 8 working hours from Monday to Friday from 7 am to 9 pm (GMT).

1. 7.1

   In the event of a breach of the SLA, a credit will be granted to the Client (“Service Credits“), calculated by applying a percentage of the monthly amount invoiced to be paid in the month following the month in which the breach of the SLA occurs in accordance with the following table:

1. 1. 7.1.1 Service Credits will only be granted for future payments due by Client under this Agreement and may not be transferred or credited to another Agreement. Receipt of Service Credits are the sole and exclusive remedy to unavailability and are a reasonable prior estimate of software unavailability losses.
   2. 7.1.2 To request Service Credits, the Client must submit a request through Analyticalways’ support system. Such request must be made within thirty (30) days after the day on which the unavailability occurred. If Verified Monthly SLA is below the SLA stipulated in the Clause 7.1, Analyticalways will apply the Service Credit to the monthly amount of the month following the request. After a period of thirty (30) days without request by the Client, the right to such compensation will expire, it being understood that the Client expressly waives any right to compensation derived from such unavailability.

8- SECURITY BREACHES

1. 8.1

   The Client must immediately notify Analyticalways via email [email protected] in the event of a cyberattack that may compromise its data, systems or affect Analyticalways in any way. This obligation remains even if the Client is uncertain about the impact on Analyticalways. For its part, Analyticalways will notify the Client in the event of a cyberattack that could compromise its data, systems or affect it in any way.

2. 8.2

   Analyticalways will immediately and temporarily disable the Client’s access to Analyticalways’ software pending an evaluation, and as appropriate, after the implementation of corrective actions and/or verification of the absence of risks, access will be restored. The Client understands that such action has no impact on the availability of the service (‘SLA’).

9- LIMITATION OF LIABILITY AND EXCLUSION OF WARRANTY

1. 9.1

   To the maximum extent permitted by applicable law, the liability of Analyticalways, its affiliates, employees, and subcontractors under this Agreement, for any claim, loss, or damage arising out of or related to the provision of Services subject to this Agreement, shall be limited exclusively to 10% of the total paid by Client in the last twelve (12) months prior to the time of the breach. The above limitation of liability shall not apply in cases of intent or gross negligence on the part of Analyticalways.

2. 9.2

   Analyticalways, its directors, employees, affiliates, or representatives shall not be liable for any indirect, incidental, special, consequential, or punitive damages, including, but not limited to, loss of profits, revenue, data, or business, arising out of or related to the use of or inability to use the Services.

3. 9.3

   The Client agrees to indemnify and hold Analyticalways harmless from and against any claim, damage, loss or expense (including reasonable attorneys’ fees) arising out of the Client’s negligence or breach of this Agreement.

4. 9.4

   The Client acknowledges that the Services are decision support tools for retail managers and all recommendations and results obtained through the Services are results that depend on the parameters entered and provided by the Client. The Client shall use the Services only for their intended use and shall not use them for any other purpose.

5. 9.5

   As a consequence of the foregoing, and to the extent permitted by applicable law, Analyticalways makes no warranties of any kind (express, implied, statutory, commercial, etc. ) regarding, among others

   • (i) the fitness for a particular purpose of the Services and especially the Software;
   • (ii) that the use of the Software will be secure, timely, uninterrupted or error free;
   • (iii) that the Software will work in combination with any other hardware, software, system or data;
   • (iv) that the Software will meet the Client’s requirements or expectations; and
   • (v) that the use of the Software will result in business benefit or economic return to Client.

10- CONFIDENTIALITY

1. 10.1

   Both Parties agree to maintain strict confidentiality with respect to all information that is disclosed by either party to the other (the “Confidential Information“).

2. 10.2

   Neither Party may:

   (a) Directly or indirectly disclose the Confidential Information or any portion thereof to any person, except as specifically provided in this Agreement for the provision of the Services;

   (b) Use the Confidential Information or any portion thereof for any purpose, except as expressly provided in this Agreement for the provision of the Services, without the prior written consent of the other Party, and on such terms and conditions as the other Party deems satisfactory in its sole discretion.

3. 10.3

   The confidentiality and non-use obligations set forth in the previous point shall not apply to the Confidential Information that:

   • (a) Is in the public domain, without its disclosure being directly or indirectly due to a breach of confidentiality obligations by the other Party or its directors, agents, employees or subcontractors;
   • (b) Was known to the other Party prior to disclosure, which the latter must reasonably demonstrate;
   • (c) Is disclosed to the public by the other Party; or
   • (d) Is disclosed or disseminated to the public as a result of the ordinary course of business conducted as provided in this Agreement or for the provision of Services as the case may be.
4. 10.4

   The Client acknowledges that the Services provided by Analyticalways under this Agreement contain Confidential Information owned by Analyticalways. The Client may not sublicense, distribute, transmit, reverse engineer, violate password-protected scripts, decompile, disassemble or otherwise disclose, directly or indirectly, by any means or in any form the Services or any computer program or any portion thereof, without the prior written consent of Analyticalways. Therefore, the Client must make all necessary efforts to ensure the confidential nature of Analyticalways’ Confidential Information, avoiding its knowledge by a third party outside the Parties. Otherwise, if the Client fails to comply with the provisions of this Clause, it shall entitle Analyticalways to terminate the Contract by prior notice to the Client.

5. 10.5

   Upon termination of the Contract, the Client shall return to Analyticalways all material received from Analyticalways in connection with the Confidential Information.

11- DURATION OF THE AGREEMENT

1. 11.1

   The term of this Agreement shall be as deemed in the Purchase Order and shall be renewed at the end of such period automatically for successive annual periods, unless one Party notifies the other of the decision not to renew it in writing with sixty (60) days’ notice of the expiration of the initial term or any of the extensions.

2. 11.2

   In the event of termination by the Client before the stipulated term period, the Client shall pay the amount corresponding to the remaining monthly payments for the termination of the Subscription.

3. 11.3

   However, if the early termination of the Agreement by the Client is due to a breach of the contractual obligations by Analyticalways, in accordance with clause 11.4, the Client shall be released from the obligation to pay the remaining monthly payments in accordance with clause 11.2.

4. 11.4

   In the event of a breach by either Party, the non-complying Party may request the non-complying Party in writing to remedy such breach within ten (10) days of receipt of the communication. If the non-compliance is not remedied within this period or, by its nature, cannot be remedied, the non-complying Party shall be entitled to terminate this Agreement.

12- RENEWALS

1. 12.1

   Price Updates: Analyticalways may modify the prices of the Services at its sole discretion, providing the Client with a minimum of 90 days’ prior notice by email. The new prices will take effect on the following Renewal Date.

2. 12.2

   Annual CPI Adjustment: After the initial commitment period, prices will be automatically updated each year in the month of the Renewal Date by applying the Consumer Price Index (CPI) increase of the country where the Client is tax-domiciled, as published by the corresponding official body.

3. 12.3

   Exchange Rate Adjustment: For Purchase Orders issued in a currency other than euro (EUR), after the initial period, prices may be adjusted annually in the month of the Renewal Date if the EUR/USD exchange rate variation exceeds ±5% with respect to the reference exchange rate at the Contract start date, in order to offset such difference.

4. 12.4

   Volume or Duration: Reduction Any renewal in which the volume or duration of the subscription is lower than the previous period will result in a new pricing, without taking into account prior unit rates.

5. 12.5

   Tacit Acceptance: Continued use of the Service after the entry into force of any price modification on the Renewal Date constitutes the Client’s express acceptance of the new rates. In the event of non-payment within the agreed deadlines, Analyticalways may suspend access to the Service in accordance with the provisions of Clause Four.

13- FORCE MAJEURE

1. 13.1

   The Parties shall not be liable to each other for failure or delay in the fulfillment of their obligations under this Agreement whenever such failure or delay is the result of Force Majeure circumstances, including but not limited to: natural disasters, pandemics, acts of war, acts of terrorism, massive technical failures, governmental regulations or any other unforeseeable and unavoidable cause beyond the reasonable control of the affected party that prevents the performance of its obligations.

2. 13.2

   The affected Party shall notify the other Party in writing, as soon as possible, of the occurrence of the event, its impact on compliance with the Agreement and the measures taken to mitigate its effects.

3. 13.3

   The obligations of the affected Party shall be suspended for the duration of the Force Majeure event, without this implying a non-compliance or giving rise to a right to compensation for the other Party.

14- DISPUTE RESOLUTION AND GOVERNING LAW

1. 14.1

   The Parties expect that disputes arising between them at any given time will be resolved through direct negotiation in an open, honest and frank dialogue between their representatives.

2. 14.2

   However, in the event that it is not possible to reach a mutually agreed solution:

   • (i) If Customer is domiciled in Spain or any other country in the European Economic Area, the Parties expressly submit to the jurisdiction of the Courts of Madrid, Spain for the resolution of any dispute arising out of, or relating to, this Agreement and its Schedules, including any question relating to its existence,  validity, interpretation, compliance or termination, expressly waiving any other jurisdiction that may correspond to them.
   • (ii) If Customer is domiciled outside the European Economic Area, any dispute arising out of this Agreement, including its existence, validity, interpretation, performance or termination, shall be finally settled by arbitration administered by the International Chamber of Commerce (ICC) in accordance with its Arbitration Rules. The arbitration shall be held in Madrid, Spain, in the English language, before a single arbitrator. The Parties may agree to the application of the ICC Expedited Rules, regardless of the amount of the dispute. The arbitration award shall be final and binding, and the Parties expressly waive any other jurisdiction or judicial action that may correspond to them. No award or procedural order shall be published.
3. 14.3

   This Agreement shall be governed by and interpreted in accordance with Spanish law.

15- ACCESS, USE, PROCESSING AND PROTECTION OF DATA

16- TRADEMARKS AND PROPERTY NOTICES

1. 16.1

   By signing the Purchase Orders, Analyticalways will be authorized to identify the Client as one of its customers and to use the logos, trade names, and company names of the Client in its communication channels.

2. 16.2

   For the purposes foreseen, the parties will carry out a Case Study highlighting the Client’s experience in the use of the Services so that Analyticalways can use it to promote its services.

3. 16.3

   Upon termination of the Agreement, Analyticalways will cease all use of the Client’s trademarks, logos or trade names, but will not be obliged to remove any postings already made.

17- DIVISIBILITY

1. 17.1

   If any provision of this Agreement is found to be illegal, invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of the Agreement, and the remainder of this Agreement shall remain in full force and effect, being binding on the Parties as if such provision had never been included.

2. 17.2

   If any provision or part of this Agreement is deemed to be deleted under this Clause, the Parties shall negotiate in good faith to agree to a replacement provision that, to the greatest extent possible, achieves the intended result of the original provision.

18- CESSION

1. 18.1

   The Parties may not assign all or part of the rights and obligations arising from this Agreement to third parties without the prior notice and consent of the other Party.

2. 18.2

   Notwithstanding the foregoing, the Parties may assign this Agreement to any of their affiliates or subsidiaries by notifying the other Party provided that:

   • (i) the transferee assumes the Party’s obligations under this agreement in full; and
   • (ii) the Party gives written notice to the other Party at least thirty (30) days in advance.

19- NOTIFICATIONS

1. 19.1

   Notifications to be given under the Agreement shall be in writing, by post, in person, by paid courier at origin, or by any other electronic means, addressed to the Party concerned, as follows:

   1. 19.1.1 If it is to the Client, addressed to the address and email(s) contained in the Purchase Order(s). The Client assumes the obligation to notify of any change in the referral contacts in said Order, and in the internal contacts of the same for the provision of the Services.
   2. 19.1.2 If it is to Analyticalways, addressed to the address Avenida de Bruselas, 26, 2ª planta, 28108, Alcobendas (Madrid), Spain and/or to the e-mail [email protected].

20- ELECTRONIC SIGNATURE