The Parties agree that the following general terms and conditions, will be applicable to all Order Forms entered by Yalo and the Client.
FIRST. Regarding the right to use the Licenses acquired by the Client related to an Order Form.
1. A License is a cloud computer services’ subscription (the “Software”), provided by Yalo and for usage of the Client through a network. The personnel of Yalo will provide Installations, equipment, programs, and other needed resources so the Client could use the Software. The Client will provide equipment, programs and needed connectivity to gain access and use the Software, including any URL address, additional or associated certifications or others.
2. The License Parameter may consist in the user’s number, number of stores, or any other applicable use limitation and/or specified measure in the Order Forms. Unless it is expressly stated in the Order Form, the Client Shall not have any right to use the License surpassing the License Parameter.
3. The right to use the Licenses shall be in accordance with what is established in the Product technical specifications and Service Level Agreements Annex. Alongside, the Client bounds not to i) decompile, disassemble, perform reverse engineering, copy, translate or perform Derived Works; ii) transmit any illicit content or data or that may derive to an infraction in accordance with the laws of where the Client resides.
4. Yalo may provide the Software to the Client, the following business day after the date of signature of the Order Form, whether it is through electronic media or physical delivery of the materials include in the Software. If the delivery is made electronically, this will be considered delivered, from the moment since Yalo has granted access to the Client.
5. The Client acknowledges and agrees that the Order Forms will not have to be duly signed by a legal representative, the Parties agree that they could be entered by the person in charge of the project, which will have to be assigned by written, and shall have the same legal binding as if it were signed by a legal representative.
6. Unless it is expressly determined in the Order Form, the acquisition of Licenses, in other words the Software provided to the Client, will not cover the following services: (i) installation, configuration and/or Software settings; (ii) required services to deploy a new version (e.g. installation and configuration); (iii) exceptional events’ assistance to the Client, provide support outside of Yalo’s business hours (M-F 8 to 18 hours): (iv) user, manager, IT personnel or any other kind of training related to the License; (v) services provided by Yalo that are required to rectify any faults (whether they do or do not block the use of the License) in the way that those faults are attributable to the actions, errors, negligence or breaching of the Client; and (vi) any other similar services that are commonly provided in a separate consulting services agreement.
7. The amount detailed in the corresponding Order Form do not cover the overflow user limit stated in the hired bundle, therefore, in the event of an overflow of such limit, such excess will be invoiced at the end of every month and shall be paid within 15 business days after the issue of the corresponding invoice.
8. Yalo shall reserve the right to incorporate as its’ any improvement made to the Software by the Client or third parties if it means to, in accordance with what is established in the current Mexican “Ley Federal del Derecho de Autor”.
9. The services hired in accordance with the Order Form are provided for the exclusive benefit of the Client or its’ Final Users and/or solely for the inside business operations of the Client and its’ Affiliates, and in no event and under no circumstances the Client is allowed to resell, distribute, integrate to another platforms, lease or license the Services to a third party.
10. In the event a beta version or previous launch or concept tests (pilot tests) is provided it must be defined in the Order Form and such versions will be provided in accordance with its’ availability, excluding previous guarantees stated in the Order Form and its’ Annexes, and Yalo may suspend and/or withdraw at any time, without any kind of responsibility.
11. Yalo shall implement and maintain appropriate technical and organizational measures to protect personal data processed by Yalo as part of the Software License as it is described in the corresponding Data Processing Annex related to the Order Form in accordance with the applicable data protection law. Likewise, Yalo shall have the right to immediately and without the need to previously issue a notification to suspend or limit the right the use, partially or totally, the License and its’ functionalities, and (when applicable) to disconnect, turn off, block the access and/or eliminate the YALO system, including its’ data, in emergency events, which may be without limitation the following:
11.1 If the Client and/or any third party, tries to gain unauthorized access to any services, other accounts, informative systems or connected networks to a Yalo Server, or any of the Services, through piracy, password extractions or any other medium,
11.2 Whether it is solicited by a governmental or legal authority, to fulfill with a change in the legal requirements or dispositions, or Yalo is forced to do it in accordance with a Delivery Platform request;
11.3 If the quality or the availability of the services provided by Yalo to another clients is or could be threatened by the behavior of the Client, its’ personnel, and/or any other third party that at the judgement of Yalo threatens the security, integrity or availability of the Services;
12. The Client acknowledges and agrees that Yalo shall have leeway to modify, from time-to-time and at its’ free will, the Software and/or the License terms and conditions. The purpose of all kind of modifications could be: i) improve or clarify existing obligations between the Parties, ii) maintain the alignment with adopted standards and applicable laws, or iii) stipulate additional characteristics and functions. The modifications will not represent a security shortfall.
13. Both Parties agree that this agreement will not grant any exclusivity right to the Client, therefore Yalo, at any time may provide equal or similar services to any other third party.
SECOND.- Regarding the Specialized Services.
1. The Parties recognize and agree that the Specialized Services may consist in diverse consulting, installation, customization, configuration, maintenance, or other services, which shall be provided by Yalo in benefit of the Client in accordance with the terms and conditions of this clause and de depositions of the Specialized Services Annex entered by the Parties.
2. The Client shall be holder of the patrimonial rights of the works that Yalo develops for the Client in accordance with the Specialized Services Annex (“Project Materials”). The works delivered to the Client that are not created in the scope of the Specialized Services Annex, must not be considered Project Materials and shall be considered as moral and patrimonial rights of Yalo (“Existing Materials”). The Licenses and/or the Software shall be considered as (“Existing Materials under License”). Yalo shall grant the Client an irrevocable (subject to the fulfillment of the payment terms stated in the Order Form), non-exclusive and international license to use, execute, reproduce, perform, visualize and prepare derived works of the Existing Materials that are not a part of the Existing Materials under License. Yalo has an irrevocable, non-exclusive. International and duly paid license to use, execute, reproduce, perform, visualize and prepare derived works of the Project Materials.
THIRD.- Responsibilities of the Parties
1. Yalo’s.
1.1 Yalo will restrain itself, unless it has a previous written authorization from the Client and/or the Delivery Platforms, to always use under any circumstance, partially or totally, none of the brands, commercial advertisements property of the Client and/or the Delivery Platforms, except for the fulfillment of its’ obligations in accordance with the Order Form and its’ Annexes.
1.2 Nevertheless, even when this agreement is terminated or as long it is valid, the Client expressly authorize Yalo to totally or partially replicate the works and/or its’ functionalities, that are performed by Yalo regarding the Services, which are publicly available, whether in its’ website or by any other media, as well as diverse printed or audiovisual materials that Yalo produces with the purpose to display the work of Yalo, under the understanding that such authorization is granted by the Client in benefit of Yalo without any kind of reimbursement and indefinitely.
1.3 Yalo acknowledges that, regarding the Services, it will generate diverse information and data (“Data”), consisting in all the information that the Client or its’ Authorized Users provide or authorize the access to, regarding the Services. Providing Data to Yalo, under the assumption that the Specialized Services or in use of the acquired Licenses, will not affect the property rights of the Material Projects, the Existing Materials, or the Existing Materials under License. Yalo, its’ affiliates and/or third parties shall have access to the Data solely to provide the Services subject to the corresponding Order Form.
1.4 The Data will not be utilized by Yalo for different purposes regarding the Services in benefit of the Client, under the understanding that Yalo does not assume nor will assume any obligation nor responsibility regarding the Data or the Client’s use of such Data, whom as owner of such Data is and will always be responsible for the use and content of it, securing the Client that at all times the Data will not be used, for illegal purposes or against what is established in the applicable law, Delivery Platforms’ policies, or that in any way breaches the rights of any third party.
1.5 Yalo guarantees the availability and functioning of the Services in accordance with the SLA included in the corresponding Product technical specifications and Service Level Agreements Annex during the validity of the applicable Order Form.
1.6 What it is stated in the SLA in no event shall cover issues caused by accident, abuse, improper use, or unaware use of the Services, or because of events beyond the reasonable control of Yalo in accordance with the Order Form and its’ Annexes. The SLA guarantee will not be executable for problems caused by the non-compliance of the minimum specifications of the Client’s system, program, or software, or whether the YALO system will be implemented, nor even in the event that the Client has not meet the requirements that are reasonable required by the Delivery Platforms, whether directly or through Yalo.
1.7 The Services may not be temporally able whether it is because of a programmed or non-programmed emergency maintenance issued by Yalo, external suppliers or for any other causes outside of the reasonable control of Yalo. Nevertheless, and besides the guarantees established in the SLA, Yalo will not offer guarantees, whether expressly, implicitly, legal, or any other kind, including commerciality or adequation ones for a purpose in particular or specified objectives of the Client, because Yalo will not guarantee the availability and uninterrupted continuity of the functioning of the Services, nor will perform error-free, beyond the terms and conditions agreed on the SLA. The Client acknowledges and agrees that Yalo will not guarantee the duly functioning of the YALO Console system and agrees that Yalo will perform the needed arrangements to correctly operate the YALO Console system and/or the Services, in accordance with the SLA.
2. Client’s.
2.1 Client agrees to execute any documents and submit any information and documentation reasonably required by the Messaging Platforms, whether directly or through Yalo, provided that, if Client fails to do so, Yalo may, without prejudice to its power to terminate the contracr, immediately suspend without liability the provision of the Services, as said provision is subject to Client’s acceptance of the terms and conditions of use applicable to the Messaging Platforms under the contract, suspend without liability and immediately discontinue providing the Services, as said provision is subject to Client’s acceptance of the terms and conditions of use applicable to the Messaging Platforms, as they may be amended or updated from time to time, during the term hereof.
2.2 The Client has obtained the corresponding authorization for the Client and/or Yalo as a mandatary that uses, performs, administrates and/or in general integrates with available web services, through third parties and/or Delivery Platforms, which are accessible through the YALO Console system and are subject to the terms and conditions of such third parties.
2.3 The Parties agree that, regarding the nature of the Services, is possible that the Client may perform at its’ own expense some adjustments to its’ systems or current technological infrastructures, so Yalo is able to correctly implement and/or operate the YALO Console system, within the time established by the Parties, in which Yalo will never have any kind of responsibility.
2.4 The Client and accepts that, if needed, the Client from now on authorizes Yalo to elaborate the terms and conditions of the services required by the Delivery Platform, to implement and provide the Services.
2.5 The Client commits to always comply with the security of Yalo’s information policies, as well as with all kinds of regulations, policies, legislations, or applicable procedures for such effects which are required for the protection of its’ data. If the Client requires additional measures of the ones established by Yalo, such measures shall be agreed in a separate agreement and signed by the legal representatives of the Parties.
2.6 The Client will not perform any action that may result or constitute a direct or indirect breaching of the applicable laws, therefore it agrees to indemnify, compensate and maintain Yalo, its’ affiliates at peace and safe, against any damage associated with or related to or derived from any breaching or possible breaching of any Law, regulations, rules and normative from any governmental entity which are applicable to Client’s business, regarding the use of the Services and if Yalo receives a claim or a legal action against it in which Yalo is required to pay any economic compensation by an authority, the Client bounds to immediately reimburse any payment made derived from such claim or legal action.
2.7 The Client shall: (i) cooperate with Yalo in all matters to ease the provision of the Services; and (ii) Provide all information that Yalo may require to timely provide the Services, guaranteeing that it is accurate in all its’ material specifications. The Client bounds to provide all relevant and needed information, under the judgment of Yalo, so the SLA stated in the corresponding Annex, the team could reject or put on hold the Ticket until the solicited information is provided.
2.8 The Client will be the sole responsible of: (i) making security copies of their data, unless in such services it is expressly agreed on the Order Form; (ii) secure the normal functioning of their own programs; (iii) provide needed elements for the Services; and (iv) secure that its informatic system complies with all current technical specifications needed to receive the Services.
FORTH. Confidentiality Obligations.
1. It will be considered as confidential information all information whether is provided by written, orally, graphically, or inside electromagnetic mediums property of each party, which has been marked as confidential, that the Parties have access to, regarding this Agreement.
2. It will not be considered as Confidential Information such information that has been independently obtained by Yalo from third parties, excluding data, as long as such revealed information is provided through a legal source and that such third party does not have any confidential obligation regarding such; all information that is publicly known or is legally known for the public; the information that the Client has granted its’ consent for its’ divulgation; and those that may need to be divulge for a judicial or competent authority requirement.
3. The obligation to guard confidentiality will be valid during the validity of each Order Form and for a plus 2 (two) years’ times after its’ date of termination for any cause.
4. If any of the Parties breaches the confidentiality obligation herein stated, it is bound to pay the affected party the sum of all direct damages caused by it, such amount shall be determined via verdict made by a competent authority, independently of the possible sanctions that may deriver from such violations to a penal national legislation, the one in charge of protecting Intellectual Property rights or any other applicable legislation.
5. AYALO, S.A.P.I. DE C.V. WITH ADDRESS AT PASEO DE LA REFORMA 265, COLONIA CUAUHTÉMOC, ALCALDÍA CUAUHTÉMOC EN LA CIUDAD DE MÉXICO AND YALOCHAT, INC, WITH ADDRESS AT 2035 SUNSET LAKE, ROAD SUITE B-2, NEWARK, DELAWARE 19702, USA (BOTH AS RESPONSIBLE OF THE TREATMENT OF THE CLIENT’S PERSONAL DATA AND IN CHARGE OF THE TREATMENT OF USERS’ PERSONAL DATA), WILL USE THE CLIENT’S PERSONAL DATA TO DELIVER IT INFORMATION AND TO PROVIDE THE PRODUCTS AND SERVICES.
6. FOR MORE INFORMATION REGARDING THE TREATMENT AND THE RIGHTS THAT YOU MAY VALID, YALO RECOMMENDS ACCESSING THE PRIVACY POLICY AT WWW.YALOCHAT.COM/PRIVACY OR REQUIRING IT AT CONTACT@YALOCHAT.COM
7. ANY CLAIM OR ADDITIONAL INFORMATION REGARDING THE TREATMENT OF ITS’ PERSONAL DATA OR DOUBT REGARDING THE MEXICAN “LEY FEDERAL DE PROTECCIÓN DE DATOS PERSONALES EN POSESIÓN DE LOS PARTICULARES” OR WITH ITS’ RULES, MAY DIRECTED IT TO THE “INSTITUTO NACIONAL DE TRANSPARENCIA, ACCESO A LA INFORMACIÓN Y PROTECCIÓN DE DATOS PERSONALES” (INAI).
FIFTH. Intellectual Property.
1. Every one of the Parties states and acknowledges that before entering this Annex and regarding their own activities, has certain intellectual property (Industrial Property and Copyrights) and industrial secrets, whether as a holder or authorized user, which has been in its’ possession, registered or in process of registration before competent authorities. Therefore, the Parties agree that for all applicable effects, such intellectual property and industrial secrets will remain the exclusive and sole property of the Party that owns such intellectual property rights (regarding the intellectual property of every one of the Parties, the “Initial Intellectual Property”).
2. Nevertheless, the Parties acknowledges that, because of the Services herein provided, there shall be certain developments, creations, elaborations, upgrades, designs, prototypes, codes and other documents and/or materials created by Yalo that may be subject to Industrial Property rights (“Created Intellectual Property”), therefore the Parties to protect and been recognized as holder of such Created Intellectual Property, agree on the following:
2.1. Regarding the adaptations, upgrades, improvements, functionalities, modifications and/or any other activities performed by Yalo to the Initial Intellectual Property that becomes a Created Intellectual Property; Yalo shall be considered for all legal effects as the holder of such Created Intellectual Property; and
2.2. Regarding the development made by Yalo regarding the instructions established by the Client and/or the design provided by the Client in which it represents an intellectual creation in benefit, solely and exclusively to the Client (applicable data base, reports, processes and/or flows) in which it will not generate a detriment to Yalo’s activities and, under the understanding that such Created Intellectual Property shall totally differ from the Initial Intellectual Property, Yalo recognizes that regarding such Created Intellectual Property, the Client shall be the sole and exclusive holder of the intellectual property rights that derived from itself.
3. The Client is free to use, without limitation, the information stated in this Clause that it is obtained in its’ benefit regarding entering this agreement, because such information will be exclusive property of the Client, under the understanding that it may not use or reference Yalo’s name and its’ commercial brands or the Delivery Platforms in any publication of public promotional, advertisements or institutionally.
4. The Client states and guarantees that it is the only holder or authorized user of the brands, phrases commercial advertisements, designs, publicity material and all general information that Client grants Yalo, therefore the Client bounds to indemnify and compensate Yalo and/or its’ affiliates of any claim, complaint or lawsuit of any kind that it is aimed against Yalo, derived from the use of Yalo of such materials regarding what it is stated herein, under the understanding that the Client only authorizes Yalo to use, or use its’ Intellectual Property during the validity of this agreement and only under the assumption that it is essentially necessary to fulfill its’ obligations in accordance with the terms and conditions of this document.
5. The Client will restrain itself from using the industrial and intellectual property of the Delivery Platforms.
SIXTH. Work Relationship.
1. The Parties agree that the Order Form and its’ Annexes are considered as a Service Provision; each of the Parties shall comply with its’ obligations in accordance with the aforementioned documents with technical elements and own personnel duly trained, under their own subordination, guidance and dependence, therefore the Parties expressly agree that none of them shall have a work bond or relationship between them and/or with their workers, employees or contractors that every counterpart hires or have hired to fulfill the obligations herein stated.
2. Every one of the Parties shall be considered as their personnel’s patrons regarding the execution of the Annexes and the Order Form and shall be the sole responsible of all their corresponding obligations derived from the work relationship they have under the scope of the corresponding legal regulations, as well as payment of their salaries, compensations, professional risks and other obligations related to Labor and Social Security subject.
SEVENTH. Validity and termination.
1. Both Parties agree that the validity of the Order Form shall be the one stated in such document.
2. The Parties agree that Order Forms may not be terminated, unless otherwhise stated in the Order Form
3. Early Termination.
3.1. The Parties agree that the following events shall be considered as an early termination of the Order Forms without responsibility to the party that proceeds with such early termination, without the need of judicial intervention:
3.1.1. If any of them commits a crime, fault, or any action that directly impedes Yalo to provide the Services.
3.1.2. If they have provided their counterpart fake documents or data that impedes Yalo to provide the Services.
3.1.3. If by Client’s fault the Services do not begin at the agreed date, or if such Services are definitely or temporary unreasonably suspended.
3.1.4. If any of the Parties declares itself in insolvency or suffer a civil, commercial, labor or tax sequestration that may affect the material fulfillment of the Order Form.
3.1.5. In general, for the breaching from any of the Parties of any of its’ obligations stated in the Order Form and its’ Annexes.
3.1.6. If any of the aforementioned events occurs, the affected party shall notify by written and duly signed by its’ legal representative to their counterpart the corresponding breaching, in which the breaching party shall remedy the corresponding breach within a period of 15 natural days following the corresponding notice, if the breaching party does not remedy such breaching, the early termination shall have immediate effects on the following day. For the validity of such notices, it will not be needed a court order.
4. Effect of the termination or early termination.
4.1. In the event of a termination of any Order Form by any cause or in the event of an early termination:
4.2. The Client shall pay Yalo the fees it may have accrued and/or indicated in the corresponding Order Form and that it have not been duly paid.
4.3. The termination or early termination of an Order Form will not affect the rights created nor the obligations stated in other Order Forms entered before or after the date of termination or early termination. If derived from such termination or early termination, obligations with third parties are infringed, the Client shall pay those expenses that Yalo must disburse for such infringements. Yalo will perform its’ best efforts to minimize such expenses.
EIGHT. Parties Responsibilities.
1. Under no circumstances Yalo, its’ shareholders, partners, directors, agents, employees, affiliates or its’ suppliers shall be responsible to the Client for any special, indirect, incidental, consequential, or punishable damage of ani kind, including but not limiting to compensation, remedy, reimburse or damages caused for loss of profit, disimburse, investments or present or future arrangements, whether performed in the establishment, development or maintenance of the reputation or good faith of the business, the loss of data, substitute software costs, capital costs and lawsuits from a third party, or for any other kind of reason. The responsibility of Yalo, its’ shareholders, partners, directors, agents, employees, affiliates or its’ suppliers, and the sole remedy to the Client for damages regarding any lawsuit of any kind subject to the Order Form and its’ Annexes or related to the Licenses and/or Software and Specialized Services provided by Yalo, its’ sum will not exceed the amounts duly paid to Yalo or demandable by Yalo to the Client regarding the Licenses and/or Software or Specialized Services within a period of the last twelve (12) months that immediately precedes the date of the initial claim.
2. Yalo will solely compensate and remain safe the Client and its’ successors (jointly as “Client’s Indemnify Parties), from any damage, responsibility, expense and costs (including but not limited to reasonable legal fees and judicial costs and expenses) controverted in a lawsuit made by a third party as a claim that the Software provided by Yalo and used by the Client in accordance with the corresponding Order Form and its’ Annexes, infringes a registered or patented right since the start of the validity of this agreement within a jurisdiction in which the Client has been allowed the use the Software through the License, or any other third party’s Intellectual Property right; as long as: (i) the Client immediately and duly notices Yalo by written and has provided any information, cooperation and reasonable assistance with the issue; and (ii) Yalo has the sole control and authority regarding the defense, arrangement and commitment of the issue, as long as the reasonable consent from the Client is provided for such arrangement or commitment, unless the arrangement or commitment totally frees the Client’s Indemnify Parties.
NINTH. Data Services. About the types of “DATA” groups.
1. Personal Data.
Any terms not defined in this clause shall have by default the definition set forth in the Federal Law for the Protection of Personal Data Held by Individuals, its Regulations and/or related regulations (the “Personal Data Law”).
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.
3 Client Data Bases:
3.1. As set forth in clause 2.1, Client shall transfer and provide Yalo with all “Operational” information that Yalo may request 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 client, brands, sub-brands, families, category and skus. v) client identification information in its ERP, as well as other general information of said clients 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”.
3.2. 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”.
3.3. For the purposes hereof, the general definition of “Client Data Bases” includes all data and information received from Client comprising “Client Operational Data Bases” as well as “Client Personal Data Bases”,
3.4 In any case in which Client transfers to Yalo personal data in order to provide the contracted services. The Client shall do so on the understanding that the Client agrees and warrants that it has the consent of the applicable Authorized Users to make such transfer in accordance with the Data Protection Law, thereby constituting for all legal purposes a lawful transfer to Yalo of data consented to by the Authorized Users.
4. Yalo Processed Databases.
4.1 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 informations obtained by Yalo on its own account, and by 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, as they are closely linked to its intellectual property through its proprietary analyses, system algorithms, statistical models and processes. In the event that, by reason of arrangement, exhibition and reporting of the service results, Yalo ends up sharing with the Client, any part of the Yalo Processed Data Bases, Yalo hereby grants to the Client a subscription of usage for that purpose during the term of this agreement.
4.2 For purposes of providing the Services to Client as well as the presentation of analyses, Yalo may provide Client with access to the Yalo Processed Data Bases or other databases derived therefrom through the use of the various components of its platform and including proprietary or third party software for visualization and analysis
5. Service Data Bases
5.1. For purposes of providing the Services of Deep Conversational Commerce to Client, Yalo shall create new Personal Data Bases and other data by aggregating, combining and analyzing certain elements of i) the Yalo Personal Data Bases relating to Authorized Users 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 constitute the “Service Data Bases”.
5.2 For the purposes of the Data Protection Law, Yalo is the Controller of the Personal Data comprising the Service Data Bases and the holder of any liabilities, penalties, rights and obligations that may arise therefrom in accordance with the powers and duties assumed by any entity exercising the role of “Controller” according to the laws in force in the jurisdiction where Yalo provides the service to Client and Authorized Users.
5.3 Service Data Bases shall be created, populated and modified at Yalo’s own discretion, specially in regards to the administration of Opt-ins and Opt-Outs in accordance to the legislation. Opt-in, meaning when a Service User authorizes Yalo, through the Messaging Platforms or otherwise, to be contacted and activated in line with the prescriptions described in the relevant Terms and Conditions of usage, and the relevant Privacy terms of usage. 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.
5.4 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.
5.5 The Parties acknowledge and agree that the access to the Service Data Bases that Yalo grants to Client, shall be considered a transfer of Personal Data pursuant to the Data Protection Law, and shall therefore be regulated in accordance with the provisions of the law and as duly regulated herein.
5.6 In the event that Yalo grants the Client access to the disaggregated data, via a Personal Data Transfer, as described in the previous paragraph, the Client commits to use such personal data, for the purposes specifically authorized by the Users of the services, in compliance with the provisions of the Data Protection Legislation.
6. Yalo/Client Database
6.1 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 i) an unabridged copy of the consolidated Client Data Bases together with ii) a copy of the sharable elements of the Service Data Bases , already excluding the contents , of the Yalo Personal Data Bases and of the Yalo Processed Databases. These databases that consolidate the integrity of Client Data Bases, on the one hand; and the sharable, elements of the Service Databases, liable to be transferred, shall be referred to for all practical purposes (the “Yalo/Client Data Bases”).
6.2 For Client’s protection, and so that said databases may be useful and usable; in the event that, for reasons of selection and disposition of their content, the Yalo/Client Data Bases incorporate intellectual creations of Yalo, Yalo shall grant Client an irrevocable and perpetual license of use, for their proper use.
6.3 Once the above is done, Client shall be the Controller of the Personal Data comprising the Yalo/Client Data Bases in its possession for the purposes of the Data Protection Law.
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:
7.1 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 Controller, including the implementation of adequate security measures to protect said Personal Data.
7.2 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. Notwithstanding the foregoing, 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 7.6.
7.3 The Parties agree that any access or transmission, between them of the databases regulated in this clause 7.6 shall be considered as legal Data Transfers under the Data Protection Law, so they shall ensure that they comply with any applicable provisions in the Data Protection Law and this agreement.
7.4 Both parties shall ensure that the Data Subjects of the Personal Data comprising the databases governed by this clause 7.6 are consenting to any Transfers thereof under the terms of this clause, in accordance with the Privacy Notice offered to such data subjects, by each of the parties and commit to notify each other of said notices to ensure full awareness, of the privacy notes accepted by the individual data subjects.
7.5 Neither party may Transfer to the other any Personal Data for which it has not obtained the applicable consent from the Data Subject.
7.6 Each of the parties shall be liable to the applicable Data Subjects and to NACI 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.
7.7 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.
7.8 The Data Transfers will be made electronically, with the necessary security measures to ensure the protection of the Personal Data being Transmitted.
7.9 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-.
TENTH. Miscellaneous
1. Unless it is expressly determined in the Order Form, Yalo nor its’ third parties may issue any statement or guarantee, expressively or implicitly, ruled or from any other kind, regarding any matter, including commerciality, suitability, originality or adequation for a specific use or purpose, non-breaching or result that derives from the use or integration of any product or specified service in the Order Form, or that the functioning of any of this products or services will be secured, uninterrupted and error-free. The Client agrees that at the time of entering with Yalo any document, regarding any service, it will not expect or entrust receiving, future functionalities, public comments or Yalo’s publicity nor on product route sheets.
2. Without any exclusion, the Parties acknowledges and agrees that the services that are provided without any expense or with discount superior to 70% (seventy per cent) of the current price list and at the time of acquisition, will be provided by Yalo on good faith, stating the Parties that they will perform its’ best effort to comply with the agreements stated in the Order Form, without any kind of responsibility.
3. Force Majeure or Fortuitous Event.
3.1. The Parties agree that if by Force Majeure or Fortuitous Event that directly affects any of the Parties in which they are impeded to fulfill the obligations established in the applicable Order Form, the impeded party must notify such circumstances by written and directed to its’ counterpart within a limit period of 5 (five) business days starting from when such cause impedes the impeded party to comply with its’ obligations.
3.2. If the Force Majeure or Fortuitous Event last longer than 15 (fifteen) natural days, the Parties will meet within the following 5 (five) business days of the previous term, to determine if an extension is needed or, if such, the party that is not directly affected by such Force Majeure or Fortuitous Event may terminate this Agreement without any kind of responsibility for none of the Parties, with exemption of the obligation of payment the Client has for the Services effectively provided up until the date of termination.
4. Anti-bribery Policies, Prevention of Operations made with Illegal Obtained Resources.
4.1. The Parties and their respective directors, officials, employees and agents comply and will comply with all the laws, rules and regulations of any kind of applicable jurisdiction regarding bribing and corruption (“Anti-bribery Laws”) The Parties have implemented, will maintain and comply with the policies and designed procedures to comply with Anti-bribery Laws.
4.2. The Parties shall never offer, pay, solicit, or accept briberies in any of its’ forms, including those transactions known as “Facilitation Payments” and shall take all needed measures regarding offers, presents, discounts and correspondence with and to third parties. The Parties are fully aware of the risks and perceptions that may incur derived from such circumstances and shall partake all reasonable measures to minimize such risks.
4.3. The Parties guarantee that the goods and resources exercised to fulfill the corresponding Order Forms and its’ Annexes, will always have a legal origin, likewise, they bound to give a strict compliance and always stick with the applicable regulations regarding money laundering prevention and/or prevention of operations made with illegal obtained resources.
5. Business relationship.
Regarding the Services provided and the nature o the use of the Delivery Platforms, property of third parties, to use it, in which Yalo does not take parto or is responsible of any transaction that the Client or its’ users may agree with such third parties, even if Yalo has knowledge of such transactions. When the Client has access to a third-party Web Site or resource, that it is not Yalo, it understands that they are independent from Yalo and Yalo does not control the content of such site or resource. It is Client’s duty to take precautions to protect itself from viruses and other potential destructive programs, as well as to protect its’ information.
6. Notices.
The Parties agree that the notices regarding this Annex shall be made by written and signed by representatives and/or authorized person for such effects and delivered personally or sent through certified mail with acknowledgement of receipt in the addresses stated in the Order Form. As long as the Parties do not notify by written a change of the addresses with an anticipation of 10 (ten) business days, the notices, notifications and other judicial and extrajudicial proceedings made on the previously indicated addresses will have legal effects.
7. Withdrawal.
If any of the Parties do not exercise or delays in exercising any of its’ rights in accordance with this Annex and/or the corresponding Order Form, such omission or delay will not be considered as a withdrawal to exercise its’ rights in accordance with this Annex, nor any partial exercise of any rights shall impede the exercise of any other right stated herein.
8. Modifications.
Any modification made to the Order Form and/or any of its’ Annexes shall be made by written. For the modification of the General Terms and Conditions it is required that the legal representatives of the Parties shall formalize an amendment agreement.
9. Assignment.
The Parties are not allowed to assign the rights and obligations herein stated without the prior written consent of its’ counterpart.
10. Jurisdiction.
To interpret, comply and execute this agreement, the Parties submit to the jurisdiction and competence of the common tribunals with residence in México City, expressly waiving to any other jurisdiction that by its’ addresses, present or future, it may fit to or by any other cause.
Version 2.0 November 2022
