Binhex General Service Agreement

1.  Recitals

1.  Recitals

3. Methodology4. Classification of services4. Condiciones de los servicios6.Implementation plan7.Implementation time frameDisplacements, accommodation and diets9.Communication channels10. Legal

1.  Recitals

WHEREAS, BINHEX is in the business of hosting Odoo Software (the “Software”), on its Cloud Hosting platforms (on its server cluster infrastructure) or on its own facilities (Self-Hosting); and WHEREAS, BINHEX desires to provide its services to the CLIENT under the terms and conditions set forth in this Agreement; and WHEREAS, the CLIENT desires to receive the services from BINHEX under the terms and conditions set forth in this Agreement. NOW THEREFORE, in consideration of the foregoing, exchange of mutual agreement, benefit, and obligations, recognized in this Agreement.

1.  Recitals

Provision of services of analysis, consultancy, training and development for the implementation of the open source software Odoo ERP and CRM Enterprise and Community editions through two modalities: Hours Pack and Deliverables by Binhex in the terms and conditions indicated below.

3. Methodology

Sobre información más detallada sobre la metodología de trabajo, haciendo cliente en el siguiente enlace.

There are two ways to do the implementation process:

1.Hours Pack

This work modality for the implementation services can be carried out through a range of time determined by the following types:

Pack of 25hs: Projects that include all applications except Inventory, Accounting and Manufacturing.

Pack of 50hs: Projects that include all applications including Inventory, Accounting and Manufacturing.

Pack of 100hs: Projects that include all applications including Inventory, Accounting and Manufacturing and customizations.

​Pack of 200hs: Projects that include all the applications including Inventory, Accounting and Manufacturing, customizations and development of new functionalities.

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2. Deliverables

A consultant specialized in Odoo will analyze the project before starting it, to determine the feasibility of the work and its costs. This service is called "Process Audit" and must be quoted before starting.  The consultant will analyze all the areas of the company, getting to know all the people responsible for them and will generate a document where an action plan will be proposed to define the execution processes for each of the detected needs. Delivery times and budget will be agreed for each deliverable..

3.- Acuerdo Kit-Digital

El desarrollo se realizará siguiendo los lineamientos de los acuerdos de Kit-Digital y los clientes deben de cumplir los siguientes compromisos. 

4. Classification of services

They are defined according to the following categories:

1. Analysis

Functional and organic analysis inherent to development projects and other jobs with a qualified profile.

2. Consulting

Execution of certain jobs of highly specialized and/or qualified profiles, training, advanced analysis, project management and direction, etc.

3. Development

Custom development, creation of new functionalities, installation of new modules or applications. Training on the functionalities installed to the corresponding personnel.

A guarantee period of 90 calendar days is established, from the date of the start of production of the new functionalities developed in the client's instance. If the Client does not notify Binhex of the existence of a malfunction of the new application or development during the referred period, it will be considered that he is satisfied in all aspects with the operation of the Addon, module or application developed, renouncing, from then on, to any claim based on the exposed guarantee.


This guarantee will be valid as long as the Client makes use of the Addon, module or application developed in accordance with the technical specifications made by the Binhex work team.

4. Condiciones de los servicios

  1. No Soliciting or Hiring

    Except where the other party gives its consent in writing, each party, its affiliates and representatives agree not to solicit or offer employment to any employee of the other party who is involved in performing or using the Services under this Agreement, for the duration of the Agreement and for a period of 12 months from the date of termination or expiration of this Agreement. In case of any breach of the conditions of this section that leads to the termination of said employee toward that end, the breaching party agrees to pay to the other party an amount of EUR (€) 30 000.00 (three hundred thousand euros)..

  2. Publicity

    Except where notified otherwise in writing, each party grants the other a non-transferable, non-exclusive, royalty free, worldwide license to reproduce and display the other party’s name, logos and trademarks, solely for the purpose of referring to the other party as a customer or supplier, on websites, press releases and other marketing materials.

  3. 4. Confidencialidad

    Definición de "Información Confidencial":Toda información revelada por una parte (la "Parte Reveladora") a la otra parte (la "Parte Receptora"), ya sea oralmente o por escrito, que se designe como confidencial o que razonablemente deba entenderse como confidencial dada la naturaleza de la información y las circunstancias de la revelación. En particular, cualquier información relacionada con el negocio, asuntos, productos, desarrollos, secretos comerciales, know-how, personal, clientes y proveedores de cualquiera de las partes deberá considerarse confidencial.Para toda la Información Confidencial recibida durante la Vigencia de este Acuerdo, la Parte Receptora empleará el mismo grado de cuidado que utiliza para proteger la confidencialidad de su propia Información Confidencial similar, pero no menos que un cuidado razonable.La Parte Receptora podrá divulgar la Información Confidencial de la Parte Divulgadora en la medida en que la ley le obligue a ello, siempre que la Parte Receptora notifique previamente a la Parte Divulgadora la divulgación obligatoria, en la medida en que la ley lo permita.

  4. 5. Protección de datos

    Definiciones"Datos Personales", "Responsable del Tratamiento", "Tratamiento" adoptan los mismos significados que en el Reglamento (UE) 2016/679 y la Directiva 2002/58/CE, y cualquier normativa o legislación que los modifique o sustituya (en adelante, "Legislación de Protección de Datos").Tratamiento de datos de carácter personalLas partes reconocen que la base de datos del Cliente puede contener Datos Personales, de los que el Cliente es el Responsable del Tratamiento. Estos datos serán tratados por Binhex Systems Solutions S.L. cuando el Cliente así se lo indique, al utilizar cualquiera de los Servicios que requieren una base de datos (por ejemplo, los Servicios de Cloud Hosting o el Servicio de Actualización de Bases de Datos), o si el Cliente transfiere su base de datos o parte de la misma a Binhex Systems Solutions S.L. por cualquier motivo relacionado con el presente Contrato.Este tratamiento se realizará de conformidad con la Legislación sobre Protección de Datos. En particular, Binhex Systems Solutions S.L. se compromete a:(a) tratar los Datos Personales únicamente cuando y según las instrucciones del Cliente, y con la finalidad de llevar a cabo alguno de los Servicios objeto del presente Contrato, salvo que la ley obligue a ello, en cuyo caso Binhex Systems Solutions S.L. lo notificará previamente al Cliente, salvo que la ley lo prohíba ;(b) garantizar que todas las personas de Binhex Systems Solutions S.L. autorizadas a tratar los Datos Personales se han comprometido a mantener la confidencialidad ;(d) remitir sin demora al Cliente cualquier solicitud de Protección de Datos que haya sido presentada a Binhex Systems Solutions S.L. en relación con la base de datos del Cliente ;(e) notificar sin demora al Cliente cualquier tratamiento, revelación o acceso accidental, no autorizado o ilícito a los Datos Personales;(f) notificar al Cliente si las instrucciones de tratamiento infringen la Legislación de Protección de Datos aplicable, a juicio de Binhex Systems Solutions S.L.;(g) poner a disposición del Cliente toda la información necesaria para demostrar el cumplimiento de la Legislación sobre Protección de Datos, permitir y contribuir razonablemente a las auditorías, incluidas las inspecciones, realizadas o encargadas por el Cliente;(h) eliminar permanentemente todas las copias de la base de datos del Cliente en posesión de Binhex Systems Solutions S.L., o devolver dichos datos, a elección del Cliente, a la terminación del presente Contrato, con sujeción a los plazos especificados en la Política de Privacidad de Binhex Systems Solutions S.L. ;En relación con los puntos (d) a (f), el Cliente se compromete a facilitar a Binhex Systems Solutions S.L. información de contacto exacta en todo momento, según sea necesario para notificar al responsable de Protección de Datos del Cliente.


6.Implementation plan

The implementation plan for new functionalities and training is defined based on the Hours Packs or Deliverables that the CLIENT contracts with Binhex Systems Solutions S.L..

Hour Packs are contracted in advance in order to be available when needed. These hours have a unit price that varies according to the volume of hours contracted, the minimum being 25 hours. BSS will provide you with access to the portal where you will be able to check the dedicated time of your hour pack.

​The Deliverables will be sent according to the action plan prepared by the dedicated consultant and accepted by the CLIENT.

These contracts are not considered effective until THE CLIENT has fully settled his account with Binhex Systems Solutions S.L.  

7.Implementation time frame

Compliance with the implementation time frame is subject to:

The support that BINHEX receives from CLIENT’s staff in responding to information requests, coordinating for training activities, access to necessary data, etc.

The CLIENT’s or user’s disposition to adapt to the interfaces in each areas and the changes in the execution of the steps to complement the processes in the software. In the case of tailor-made development, if it is necessary to carry out an implementation process, the same will be proposed to meet the client's information and management needs. Custom developments will be compatible with the platform and the ecosystem of applications. ​

​

Software stability installed On-Premise (client's local server) will be the client's responsibility. BINHEX will not be responsible for cyberattacks, web intrusions, or activity that could partially or totally limit access to the applications or in general paralyze the implementation process, customization, and related activities of the process.

Further, BINHEX will not be responsible if CLIENT does not comply with the minimum technical specifications recommended for the installation and operation of the applications and the time that may elapse until these are adequate.


Displacements, accommodation and diets

Any displacement that is required to the client's offices to advance with the implementation process, will be billed, regardless of the means of transportation. If diets are required, they will be billed according to tickets. If accommodation is required, it will be billed according to the hotel rate.

9.Communication channels

To request communication with the professionals assigned to the projects, you can use the following methods: Email: 

Customer Portal: Log in to your customer portal at binhex.cloud with your user account , if you don't have one, you can sign up.

Through email to your dedicated consultan

By phone: España: +34 822 17 92 67 - From Monday to Friday from 8am to 5pm (WET)

By phone: Estados Unidos: +1 305-686-8151 - From Monday to Friday from 8am to 5pm (EST)

10. Legal

  1. Limitation of Liability

    En la medida máxima permitida por la ley, la responsabilidad agregada de cada parte junto con las filiales que surja de o esté relacionada con este Contrato no excederá el 50% de la cantidad total pagada por el CLIENTE en virtud de este Contrato durante los 12 meses inmediatamente anteriores a la fecha del evento que dio lugar a dicha reclamación. Las reclamaciones múltiples no ampliarán esta limitación.En ningún caso ninguna de las partes o sus filiales serán responsables de daños indirectos, especiales, ejemplares, incidentales o consecuentes de ningún tipo, incluyendo, pero no limitado a, pérdida de ingresos, beneficios, ahorros, pérdida de negocio u otras pérdidas financieras, costes de inactividad o retraso, pérdida o daño de datos, que se deriven de este Contrato o estén relacionados con él, independientemente de la forma de la acción, ya sea en virtud de un Contrato, un acto ilícito (incluida la negligencia estricta) o cualquier otra teoría legal o equitativa, incluso si una de las partes o sus filiales han sido advertidas de la posibilidad de tales daños, o si una de las partes o sus filiales no cumplen su propósito esencial.

  2. Force majeure

    Neither party shall be liable to the other for any delay in performance or failure to perform any performance under this Agreement when such failure or delay is caused by government regulations, fire, strike, war, flood, accident, epidemic, embargo, appropriation of property, or product in whole or in part by any government or public authority, or any other cause or causes, whether similar or different in nature, beyond the reasonable control of such party provided that such cause or causes exist. .

  3. Costs

    Except as otherwise provided in this Agreement, each Party here to shall pay its own expenses in connection with the preparation of this Agreement, the performance of the provisions hereof, and the consummation of the transactions contemplated herein.

  4. Applicable Law, Jurisdiction, Attorney's Fees

    This Agreement shall be governed by, construed, and enforced pursuant to the laws of the State of Florida, USA, without giving effect to its conflict of law provisions. Any judicial proceeding brought by either Party to enforce or interpret this Agreement or the Exhibits and Exhibits attached hereto, if any, shall be brought in the appropriate court in Miami-Dade County, Florida or in the District Court of the United States. for the Southern District of Florida. By executing and delivering the Agreement, each Party to this Agreement consents to the exclusive jurisdiction of the aforementioned courts and waives any objections to jurisdiction therein. The prevailing Party in any such proceeding shall be entitled to an award of its legal fees and costs incurred and at each and every level of a litigation and in any proceeding, including bankruptcy court.

  5. Assignment of the Agreement

    Por BINHEXBINHEX podrá ceder el presente Acuerdo o los pagos adeudados, con o sin el consentimiento del CLIENTE. Por el CLIENTEEl CLIENTE no podrá ceder el presente Acuerdo sin el consentimiento por escrito de BINHEX.

  6. Contents of the Agreement

    This Agreement sets forth the entire understanding of the Parties hereto with respect to its subject matter. It shall not be amended or modified, except in writing and executed by both Parties, and no provision hereof shall be waived, except by a written instrument duly executed by each of the Parties hereto. Any and all prior written agreements and understandings between the Parties with respect to the subject matter hereof, whether written or oral, are superseded by this Agreement.

  7. Unenforceable/severability clause

    If any provision of this Agreement is found by a court of competent jurisdiction to be void or unenforceable, the remaining provisions of this Agreement will nonetheless be binding on the Parties with the same force and effect as if the unenforceable portion had been severed and deleted.

  8. Acknowledgment of Trades

    The Parties acknowledge that: (a) this Agreement has been prepared after substantial negotiations between them; (b) each had sufficient time and opportunity to consult with counsel of their own choosing regarding the terms of this Agreement and the legal implications thereof; (c) this Agreement has been prepared, reviewed and studied without duress, fraud, duress or undue influence and without circumstances beyond the free will of the signatories; and (d) this Agreement is made expressly with each Party acting as an equal to the other Parties in negotiating the terms hereof and, accordingly, any rules of interpretation to the effect that any ambiguity shall be resolved against the drafting party shall not be used in the interpretation of this Agreement.

  9. Notices

    Toda notificación, solicitud, demanda, oferta, pago o comunicación realizada en virtud del presente Contrato se considerará efectuada y entregada a todos los efectos si se realiza por escrito y si: (a) se entrega personalmente o por servicio de mensajería o entrega, en el momento de dicha entrega; (b) si se envía por correo certificado o certificado de los Estados Unidos, con franqueo y gastos pagados por adelantado, dirigido al destinatario previsto, a la dirección indicada a continuación en este Acuerdo, en el momento en que el destinatario previsto o su y/o si el agente firma o ejecuta el recibo; y (c) si se entrega por correo electrónico a las siguientes direcciones de correo electrónico como se indica a continuación:Para BINHEX a: Binhex Systems Solutions S.L.Calle Subida al Mayorazgo 13 Oficina 15-2 legal@binhex.cloudThe Parties may change the address to which notices are sent or delivered by giving three (3) business days prior written notice to the other Party. Thereafter, such new designated address shall be such Party's address for all notices required or permitted under this Agreement.

  10. Acceptance by the CLIENT

    Los términos y especificaciones de este Acuerdo son satisfactorios y se aceptan por la presente.La persona que firma por cada una de las partes tiene autoridad para vincular a cada una de las partes a este Acuerdo.


1. Recitals2. Procedure3. Classification4. Definition5. Communication Channels6. Legal

1. Recitals

WHEREAS, BINHEX is in the business of providing technical support for Odoo Community and Enterprise Edition Software (the “Software”), and WHEREAS, BINHEX desires to provide its services to the CLIENT under the terms and conditions set forth in this Agreement; and WHEREAS, the CLIENT desires to receive the services from BINHEX under the terms and conditions set forth in this Agreement; and WHEREAS, This agreement is for BINHEX to provide technical support services through the opening of queries or incident reports by the CLIENT, and NOW THEREFORE, in consideration of the foregoing, exchange of mutual agreement, benefit, and obligations, recognized in this Agreement, the receipt and sufficiency of which are hereby acknowledged.  


2. Procedure

​Procedure for resolution of queries or incident reports:

1. Opening a query or incident report 

Opening a query or incident report by the CLIENT via telephone, email or message. 

2. Allocation  

Reference allocation and documentation Thereof by BINHEX. 

3. Forecast 

Forecast of the time necessary for its resolution and assessment if it is greater than two (2) hours. 

4. Resolution 

Resolution without confirmation if resolved within two (2) hours. 

5. Assistance 

Adequate assistance for its resolution via telephone, email, or other remote control tools, or through on-site assistance when necessary. 

6. Closing and Documentation 

The support team will close the ticket and place information related to the incident with the time and date in which it was reported, channel and person who made it along with the description of the problem.

3. Classification

The definition of the work according to their nature is made according to the following classification: Special, General, Analysis, Consulting and Development.


1. Special

It occurs when there's a complete service outage, this category will receive priority attention. If you have a Premium support plan, you'll have a special client code to access service with a dedicated technician, who will be on call 24/7 to address critical requests.


2. General

Regular inquiries about the operation or bugs of installed applications.


3. Analysis

Functional and organic analysis inherent to development projects and other jobs with a qualified profile.


4. Consulting

Execution of certain jobs of highly specialized and/or qualified profiles, training, advanced analysis, project management and direction, etc.


5. Development 

Custom development, creation of new functionalities, installation of new modules or applications. Training on the installed functionalities to the corresponding personnel.  


4. Definition


General category incidences will be resolved according to the plan offered in the sale order and according to its complexity The special category incidences will be attended immediately. Analysis, Consulting and Development incidences will be attended according to the number of hours or success package hours that the company has acquired for this purpose.


The resolution time of a General incidence or query may be carried out remotely and it usually lasts an average of thirty (30) minutes to one hour. It may require the exchange of information via email, and the performance of some tests. Resolutions that require considerably much more time, must be taken care of by purchasing an Implementation pack or a pack of hours..


​For the implementation plan of new functionalities and training as well as to cover other assistance requests, such as questions related to developments, customizations, Auto-Hosting installation or services that require access to the CLIENT'S database, a plan must be defined through the purchase of a Package of Implementation Hours or a pack of hours that the company acquires for this purpose. In the event that it is not clear whether a request is covered by this Agreement or a package of hours, the decision is at the discretion of BINHEX's availability.



In the event that the client at the time of contracting the service selects the MONTHLY payment frequency, to know the maximum number of HelpDesk tickets that can be generated and attended monthly from BSS, the marketed plan will be divided (considered in number of tickets annually) between 12 months. 

In the case of ANNUAL or MULTI ANNUAL contracting, the client may use the total number of Tickets in the period considered necessary before the end of the year or period inclusive, in which case, to continue receiving the BSS service, they must extend their plan to a greater number of annual tickets or purchase a pack of implementation hours as a complement.


User


Any active user account with access to the Software in create and/or edit mode. Deactivated user accounts and accounts used by external persons (or systems) that have only limited access to the Software through the user portal are not considered Users.


Application


Specialized group of functions available for installation in the Software.


Error / Bug


A bug is any failure of the Software that results in a complete stop, bug tracking, or security breach, and is not directly caused by a faulty installation or configuration. Non-compliance with some specifications or requirements will be considered as an error at the discretion of BINHEX (For example, when the Software does not behaves as intended or produces a result different that it was designed to produce, or when a country-specific feature no longer meets its accounting legal requirements).


5. Communication Channels


You may request assistance by the following methods:

Portal: Ticket with request for assistance - Hours 24/7

Spain: 

​Email:  support@binhex.cloud / - Hours 24/7 soporte@binhex.cloud ​

Phone: +34 822 179 267 - From Monday to Friday from 8am to 5pm

United States:

​Email:  support@binhex.cloud / - Hours 24/7 support@binhex.cloud ​

Phone: +1 305-686-8151- From Monday to Friday from 8am to 5pm


6. Legal


1. Not to solicit or hire


Except where the other party consents in writing, each party, its affiliates and its representatives agree not to solicit or offer employment to any employee of the other party who is involved in the provision or use of the Services under this Agreement, during the term of the Agreement and for a period of 12 months from the date of termination or expiration of this Agreement. In the event of any breach of the terms of this section leading to the termination of such employee, the breaching party agrees to pay the other party an amount of EUR (€) 300,000 (three hundred thousand Euros).


2. Limitation of Liability


To the maximum extent permitted by law, the aggregate liability of each party together with affiliates arising out of or related to this Agreement shall not exceed 50% of the total amount paid by CLIENT under this Agreement during the 12 months immediately prior to the date of the event giving rise to such claim. Multiple claims will not extend this limitation. 

​n no event shall a Party or its affiliates be liable for indirect, special, exemplary, incidental, or consequential damages of any kind, including, but not limited to, lost revenues, profits, savings, lost business, or other financial losses, costs of downtime or delay, lost or damaged data, arising out of or in connection with this Agreement regardless of the form of action, whether in Agreement, tort (including strict negligence), or any other legal or equitable theory, even if a party or its affiliates have been advised of the possibility of such damages, or if a party or its affiliates fails of its essential purpose.


 3. Force majeure

Neither party shall be liable to the other for any delay in performance or failure to perform any performance under this Agreement when such failure or delay is caused by government regulations, fire, strike, war, flood, accident, epidemic, embargo, appropriation of property, or product in whole or in part by any government or public authority, or any other cause or causes, whether similar or different in nature, beyond the reasonable control of such party provided that such cause or causes exist. 


4. Applicable Law, Jurisdiction, Attorneys' Fees

This Agreement shall be governed by, construed, and enforced pursuant to the laws of the State of Florida, USA, without giving effect to its conflict of law provisions. Any judicial proceeding brought by either Party to enforce or interpret this Agreement or the Exhibits and Exhibits attached hereto, if any, shall be brought in the appropriate court in Miami-Dade County, Florida or in the District Court of the United States. for the Southern District of Florida. By executing and delivering the Agreement, each Party to this Agreement consents to the exclusive jurisdiction of the aforementioned courts and waives any objections to jurisdiction therein. The prevailing Party in any such proceeding shall be entitled to an award of its legal fees and costs incurred and at each and every level of a litigation and in any proceeding, including bankruptcy court.



5. Assignment of the Agreement


By BINHEX


BINHEX may assign this Agreement or payments due, with or without the consent of the CLIENT.


By CLIENT


CLIENT may not assign this Agreement without the written consent of BINHEX.


6. Contents of the Agreement

​This Agreement sets forth the entire understanding of the Parties hereto with respect to its subject matter. It shall not be amended or modified, except in writing and executed by both Parties, and no provision hereof shall be waived, except by a written instrument duly executed by each of the Parties hereto. Any and all prior written agreements and understandings between the Parties with respect to the subject matter hereof, whether written or oral, are superseded by this Agreement.


7. Unenforceable/severability clause

If any provision of this Agreement is found by a court of competent jurisdiction to be void or unenforceable, the remaining provisions of this Agreement will nonetheless be binding on the Parties with the same force and effect as if the unenforceable portion had been severed and deleted.


8.Acknowledgment of Counsel and Negotiations

The Parties acknowledge that: (a) this Agreement has been prepared after substantial negotiations between them; (b) each had sufficient time and opportunity to consult with counsel of their own choosing regarding the terms of this Agreement and the legal implications thereof; (c) this Agreement has been prepared, reviewed and studied without duress, fraud, duress or undue influence and without circumstances beyond the free will of the signatories; and (d) this Agreement is made expressly with each Party acting as an equal to the other Parties in negotiating the terms hereof and, accordingly, any rules of interpretation to the effect that any ambiguity shall be resolved against the drafting party shall not be used in the interpretation of this Agreement.


9. Notices

Any notice, request, demand, offer, payment or communication made pursuant to this Agreement will be deemed given and delivered for all purposes if in writing and if: (a) delivered personally or by courier or delivery service, at the time of such delivery; (b) if sent by registered or certified United States mail, postage and charges prepaid, addressed to the intended recipient, to the address provided below in this Agreement, at the time the intended recipient or his and /or if the agent signs or executes the receipt; and (c) if delivered by email to the following email addresses as indicated below:


BINHEX:  Binhex Systems Solutions S.L.


13 Subida al Mayorazgo Street Office 15-2

Santa Cruz de Tenerife, Canary Islands, Spain 38110

y legal@binhex.cloud


The Parties may change the address to which notices are sent or delivered by giving three (3) business days prior written notice to the other Party. Thereafter, such new designated address shall be such Party's address for all notices required or permitted under this Agreement.


10. Acceptance by the CLIENT

The terms and specifications in this Agreement are satisfactory and are hereby accepted.


The person signing for each party has the authority to bind each party to this Agreement.



1.  Recitals

2. Terms of duration of the agreement
 3. Definitions4. Access to the Software5. Services6. Charges and fees7. Terms of Service8. Warranties and waivers9. Legal
 

1. Recitals

WHEREAS, BINHEX is engaged in the business of hosting Odoo Community and Enterprise Edition software (the "Software"), on its Cloud Hosting platforms (on its server cluster infrastructure) or on its own facilities (AutoHosting); and WHEREAS, BINHEX wishes to provide its services to CUSTOMER under the terms and conditions set forth in this Agreement; and WHEREAS, THE CUSTOMER wishes to receive services from BINHEX under the terms and conditions established in this Agreement; and NOW THEREFORE, in consideration of the foregoing, we list the mutually agreed upon benefits and obligations recognized in this Agreement, the receipt and sufficiency of which are hereby acknowledged..


2. Terms of duration of the agreement
 


The term of this Agreement is specified in writing in the agreement between the parties. BSS accepts monthly or annual contracts. Contracts for services, namely Application and User usage, automatically renew for a term equal to the initial contract term unless either party provides written notice of termination at least 30 days prior to the end date of the agreement..



3. Definitions


User


Any active user account with access to the Software in create and/or edit mode. Deactivated user accounts and accounts used by external persons (or systems) that have only limited access to the Software through the user portal are not considered Users.


Application


​Specialized group of functions available for installation in the Software


Error / Bug


A bug is any failure of the Software that results in a complete stop, bug tracking, or security breach, and is not directly caused by a faulty installation or configuration. Non-compliance with some specifications or requirements will be considered as an error at the discretion of BINHEX (For example, when the Software does not behaves as intended or produces a result different that it was designed to produce, or when a country-specific feature no longer meets its accounting legal requirements).


4. Access to the Software


The cloud platform is hosted and fully managed by BINHEX and it is accessed remotely by the CLIENT.


​The CLIENT agrees to take all necessary measures to guarantee the verification of the contracted implementation that is installed or downloaded on its technological platform. BINHEX must at all times be informed of the addition of new applications or changes in the number of active/installed Users.


BINHEX agrees not to disclose any information obtained from the CLIENT during the term of this Agreement to third parties without the CLIENT's consent, and to treat all data collected in accordance with its official Privacy Policy, published at www.binhex.us.



5. Services


1. Error Correction Service


BINHEX agrees to make all reasonable efforts to correct any Software error(s) that the CLIENT reports through the appropriate channel (email address, BINHEX helpdesk or the form on the BINHEX website) and to work against the resolution of said reported error(s) within two (2) business days and to notify the CLIENT as soon as the error(s) is/are solved.


The CLIENT understands that errors caused by a modification or extension requested that is not part of the official Software will not be covered by the support service and the CLIENT will need an active Pack of Service Hours. As soon as the error is fixed, it will be communicated to the CLIENT.


For a cloud-hosted CLIENT, if the bug can be fixed by downloading a more recent version of the Software, the CLIENT agrees to update its system to correct the error. The CLIENT will not be prompted to upgrade to the latest version as a workaround.


BINHEX will fix the bug/error in all Versions of the Software if the bug/error is fixed in any version by the developer.



2. Security Update Service


Self-Hosting


BINHEX agrees to send a "Security Notice" to the CLIENT for any security bug discovered in the version of the Software being used by CLINET, at least 2 weeks before making the Security Notice public, unless the bug has already been disclosed to the public by a third party. The security notices include a complete description of the error, its cause, its possible impacts on the CLIENT's systems, and the corresponding solution for each Coverage.


​In t he cloud/Cloud Hosting


BINHEX agrees to apply the security solutions for any security bug discovered in a version of the Software hosted on the cloud, on all systems under its control, as soon as the solution is available, without requiring any manual action from the CLIENT.


3. Update Services


The CLIENT may submit a request for a Software update through the appropriate channel (BINHEX update service website), to convert a database of the Software to a more recent version.


This service is provided through an automated platform to allow CLIENTS to perform unattended upgrades once a previous version of CLIENT's database has been successfully upgraded to a newer version. CLIENT may submit successive update requests for a database, and CLIENT agrees to submit at least one (1) update request for testing purposes prior to submitting the final update request.


The Update Service is limited to the technical conversion and adaptation of the database to be compatible with the target, newer version and the correction of any errors directly caused by the update operation and that do not normally occur in the target version.


It is the CLIENT's sole responsibility to verify and validate the updated database to detect errors, analyze the impact of changes and new features implemented in the target version, and to convert and adapt to the target version any third-party extensions that are installed in the database prior to the update (except where applicable as provided in the Update Service for Third-Party Extensions section). CLIENT may submit multiple update requests for a database, until an acceptable result is achieved.


Update Service for Third Party Extensions


In addition to the usual Update Services, CLIENT may request update services for third party plug-ins. This service is optional and is subject to additional fees (as described in this Agreement) and includes the technical adaptation of third-party modules installed in the CLIENT's database and their corresponding data to be compatible with the final version. The CLIENT will receive an updated version of all installed third-party modules together with the updated database.


4. Hosting services in the cloud / Cloud Hosting


​For the CLIENT who chooses to use the Cloud Platform (Cloud Hosting), BINHEX agrees to provide the following services:


Hosted in Tier III data centers or equivalent, with 99.9% optimal network uptime Grade A SSL communication encryption (HTTPS) Verified backups, fully automated, replicated across multiple regions..


Disaster recovery plan, regularly tested.


Details of cloud hosting services are described on the Service Level Agreement - Cloud SLA page.


5. Support Services


The CLIENT can open an unlimited number of support tickets at BINHEX, exclusively for questions related to errors (See Error Correction Service above)


Other support requests, such as questions related to developments, customizations, installation of Auto-Hosting or services requiring access to the Customer's database may be covered through the purchase of a Bag of Hours or Implementation Hour Package. In the event that it is unclear whether a request is covered by this Agreement or an Hourly Package, the decision is at the discretion of BSS availability.


Hour Packs are contracted in advance in order to be available when needed. These hours have a unit price that varies according to the volume of hours contracted, the minimum being 25 hours. BSS will provide you with access to the portal where you will be able to check the dedicated time of your hour pack.



6. Charges and fees


1. Standard fees


The standard charges for the Binhex Hosting Services subscription used by the CLIENT.


2. Renewal Fees


At renewal, as described in the Agreement Terms section, if charges applied during the prior terms are lower than the most current applicable list price, these charges may increase. BSS will inform the client of the application of said adjustments based on the Hosting resources.


3. Fees for Third Party Module Update Services


The additional charge for the Update Service for Third Party Modules is $1,000.00 (one thousand dollars) per 1,000 lines of code in Third Party Modules, rounded up to the next thousand lines. Lines of code include all lines of text in the source code of those modules, regardless of programming language (Python, Javascript, etc.) or data format (XML, CSV, etc.), excluding blank lines and comment lines.


BINHEX reserves the right, at its own discretion, to reject an update request for third party modules under the foregoing if the quality of the source code for those modules is too low (at its own discretion) or if these modules interface with third party software or systems. Upgrading of such modules may be subject to a separate Agreement.


4. Taxes


All fees and charges are exclusive of all applicable federal, state, local or other governmental taxes, fees or charges (collectively, “Taxes”). The CLIENT is responsible for paying all Taxes associated with purchases made under this Agreement, except when BINHEX is legally obligated to pay or collect taxes for which the CLIENT is responsible.




7. Terms of Service


1. Obligations of the Clien


The Client undertakes to:


​Pay BINHEX any applicable charges or fees for the Services pursuant to this Agreement, according to the payment terms specified in the corresponding invoice(s); Immediately notify BINHEX when your actual number of users or installed applications exceeds the number specified in this Agreement and pay the applicable additional fee(s) as described in this Agreement.


Appoint a contact person throughout the duration of the Agreement when CLIEN CLIENT Chooses to use the Cloud Platform; 


CLIENT further agrees to:


​Take all reasonable steps to keep usernames and passwords secure.


Make reasonable use of hosting services, excluding any illegal or abusive activities, and strictly observe the rules described in the Usage Policy.


2. Do not solicit/hire


Except when the other party consents in writing, each party, its affiliates, and their representatives agree not to solicit or offer employment to any employee of the other party who is involved in the provision or use of the Services under this Agreement, during the term of the Agreement and for a period of 12 months from the date of termination or expiration of the Agreement. In the event of any breach of the terms of this section leading to the termination of such employee, the offending party agrees to pay the other party an amount equal to Three Hundred Thousand Dollars ($300,000.00) as liquidated damages.


3. Advertising


Except as otherwise provided in writing, each party grants the other a non-transferable, non-exclusive, royalty-free, worldwide license to reproduce and display the other party's name, logos and trademarks, solely for the purpose of referring to the other party as customer, client, or supplier on websites, press releases and other marketing materials.


4. Confidenciality


Definition of "Confidential Information": All information disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party"), whether orally or in writing, that is, designated as confidential or that reasonably should be understood as confidential given the nature of the information and the circumstances of disclosure.


In particular, any information relating to the business, affairs, products, developments, trade secrets, know-how, personnel, customers and suppliers of either party should be considered confidential.


For all Confidential Information received during the Term of this Agreement, the receiving party will use the same degree of care that it uses to protect the confidentiality of its own similar services.


The receiving party may disclose confidential information of the disclosing party to the extent required by law, provided that the Receiving Party gives prior notice to the Disclosing Party of the compelled disclosure, to the extent permitted by law.


5. Data Protection


The parties acknowledge that the CLIENT's database may contain personal data, for which the CLIENT is the controller. These data will be processed by BINHEX when the CLIENT so indicates, through the use of any of the Services that require a database (for example, the Cloud Hosting Services or the Database Update Service), or if the CLIENT transfers its database or a part of its database to BINHEX for any reason related to this Agreement.


This processing will be carried out pursuant to data protection legislation. In particular, BINHEX agrees to:


(a) Only process personal data when and as directed by the CLIENT, and for the purpose of performing one of the Services under this Agreement, unless required by law, in which case BINHEX will provide prior notice to the CLIENT, unless prohibited by law.


(b) Ensure that all persons within BINHEX authorized to process Personal Data are bound by confidentiality.


(c) Implement and maintain appropriate technical and organizational measures to protect personal data against unauthorized or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure.


(d) Promptly send to CLIENT any data protection request that has been submitted to BINHEX with respect to CLIENT's database.


(e) Notify the CLIENT immediately upon learning of and confirming any accident, unauthorized or illegal processing, disclosure or access to personal data.


(f) Notify the CLIENT if the processing instructions violate the Data Protection applicable to the legislation, in the opinion of BINHEX.


(g) Make available to the CLIENT all the information necessary to demonstrate compliance with data protection legislation, allow and reasonably contribute to audits, including inspections, carried out or required by the CLIENT.


(h) Permanently delete all copies of CLIENT's database in BINHEX's possession, or return such data, at CLIENT's election, upon termination of this Agreement, subject to the delays specified in BINHEX's Privacy Policy ( Privacy).


With respect to points (d) to (f), the CLIENT agrees to provide BINHEX with an accurate contact for information at all times, as necessary to notify the CLIENT's Data Protection Officer.


Sub-processors


The CLIENT acknowledges and agrees that in order to provide the Services, BINHEX may use third-party service providers (sub-processors) to process personal data. BINHEX undertakes to only use sub-processors in accordance with data protection legislation. This use will be covered by an Agreement between BINHEX and the Sub-Processor that provides guarantees to that effect.


The BINHEX Privacy Policy, published on Binhex Privacy provides updated information on the names and purposes of the Sub-processors currently in use by BINHEX for the execution of the Services.


6. Termination


​In the event that either Party breaches any of its obligations hereunder, and if such breach has not been remedied within 30 calendar days of written notice of such breach, this Agreement may be terminated immediately by the non-breaching Party.


BINHEX may terminate the Agreement immediately in the event that the CLIENT fails to pay the fees applicable to the Services within the due date specified in the invoice.



8. Warranties and waivers


1. Warranties


BINHEX agrees to use commercially reasonable efforts to perform the Services in accordance with generally accepted industry standards as long as:


(a) CLIENT's computer systems are in good working order and, in the case of Self-Hosting, the software is installed in a suitable operating environment.


(b) the CLIENT provides adequate information for the resolution of problems and, for Self-hosting, any access that BINHEX may need to identify, reproduce and resolve problems.


(c) All amounts owed to BINHEX have been paid in full.


BINHEX doesn't guarantee that the Software complies with local or international laws or regulations.


CLIENT's sole and exclusive remedy and BINHEX's sole obligation for any breach of this Agreement is for BINHEX to resume performance of the Services at no additional charge.


2. Waivers


Except as expressly provided herein, neither party makes any warranties of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties of merchantability.





9. Legal
 


1. Limitation of Liability


​To the maximum extent permitted by law, the aggregate liability of each party together with affiliates arising out of or related to this Agreement shall not exceed 50% of the total amount paid by CLIENT under this Agreement during the 12 months immediately prior to the date of the event giving rise to such claim. Multiple claims will not extend this limitation.


In no event shall either party or its affiliates be liable for indirect, special, exemplary, incidental, or consequential damages of any kind, including, but not limited to, lost revenues, profits, savings, lost business, or other financial losses, costs of downtime or delay, lost or damaged data, arising out of or in connection with this Agreement regardless of the form of action, whether in Agreement, tort (including strict negligence), or any other legal or equitable theory, even if a party or its affiliates have been advised of the possibility of such damages, or if a party or its affiliates fails of its essential purpose.


2. Force majeure


Neither party shall be liable to the other for any delay in performance or failure to perform any performance under this Agreement when such failure or delay is caused by government regulations, fire, strike, war, flood, accident, epidemic, embargo, appropriation of property, or product in whole or in part by any government or public authority, or any other cause or causes, whether similar or different in nature, beyond the reasonable control of such party provided that such cause or causes exist.


3. Costs


Except as otherwise provided in this Agreement, each Party hereto shall pay its own expenses in connection with the preparation of this Agreement, the performance of the provisions hereof, and the consummation of the transactions contemplated herein.


4. Applicable Law, Jurisdiction, Attorney's Fees


This Agreement shall be governed by, construed, and enforced pursuant to the laws of the State of Florida, USA, without giving effect to its conflict of law provisions. Any judicial proceeding brought by either Party to enforce or interpret this Agreement or the Exhibits and Exhibits attached hereto, if any, shall be brought in the appropriate court in Miami-Dade County, Florida or in the District Court of the United States. for the Southern District of Florida. By executing and delivering the Agreement, each Party to this Agreement consents to the exclusive jurisdiction of the aforementioned courts and waives any objections to jurisdiction therein. The prevailing Party in any such proceeding shall be entitled to an award of its legal fees and costs incurred and at each and every level of a litigation and in any proceeding, including bankruptcy court.


5. Assignment of the Agreement



By BINHEX


BINHEX may assign this Agreement or payments due, with or without the consent of the CLIENT.


By Client


CLIENT may not assign this Agreement without the written consent of BINHEX.


6. Contents of the Agreement


This Agreement sets forth the entire understanding of the Parties hereto with respect to its subject matter. It shall not be amended or modified, except in writing and executed by both Parties, and no provision hereof shall be waived, except by a written instrument duly executed by each of the Parties hereto. Any and all prior written agreements and understandings between the Parties with respect to the subject matter hereof, whether written or oral, are superseded by this Agreement.


7. Unenforceable/severability clause


If any provision of this Agreement is found by a court of competent jurisdiction to be void or unenforceable, the remaining provisions of this Agreement will nonetheless be binding on the Parties with the same force and effect as if the unenforceable portion had been severed and deleted.


8. Acknowledgment of Trades


The Parties acknowledge that: (a) this Agreement has been prepared after substantial negotiations between them; (b) each had sufficient time and opportunity to consult with counsel of their own choosing regarding the terms of this Agreement and the legal implications thereof; (c) this Agreement has been prepared, reviewed and studied without duress, fraud, duress or undue influence and without circumstances beyond the free will of the signatories; and (d) this Agreement is made expressly with each Party acting as an equal to the other Parties in negotiating the terms hereof and, accordingly, any rules of interpretation to the effect that any ambiguity shall be resolved against the drafting party shall not be used in the interpretation of this Agreement.


9. Notices


Any notice, request, demand, offer, payment or communication made pursuant to this Agreement will be deemed given and delivered for all purposes if in writing and if: (a) delivered personally or by courier or delivery service, at the time of such delivery; (b) if sent by registered or certified United States mail, postage and charges prepaid, addressed to the intended recipient, to the address provided below in this Agreement, at the time the intended recipient or his and /or if the agent signs or executes the receipt; and (c) if delivered by email to the following email addresses as indicated below:



For BINHEX to: 

Binhex Systems Solutions S.L.

13 Subida al Mayorazgo Street Office 15-2

Santa Cruz de Tenerife, Canary Islands, Spain 38110

and legal@binhex.cloud  .


The Parties may change the address to which notices are sent or delivered by giving three (3) business days prior written notice to the other Party. Thereafter, such new designated address shall be such Party's address for all notices required or permitted under this Agreement.


10. Acceptance by the CLIENT


The terms and specifications in this Agreement are satisfactory and are hereby accepted. The person signing for each party has the authority to bind each party to this Agreement.