1.1 Agreement: means these general terms and conditions.
1.2 ClickLab: has the meaning ascribed to in Exhibit 1.
1.3 Client: refers to the registered user of the Software (as defined below).
1.4 Company: means Despegar.com.ar S.A., a company incorporated under the laws of Argentina.
1.5 Device Graph: has the meaning ascribed to in Exhibit 1.
1.6 Device Graph Data: means any relations or information attributed to a specific end-user by the Device Graph or deriving from the Device Graph.
1.7 License: has the meaning ascribed to in Section 2.1.
1.8 Party or Parties: means jointly or indistinctly the Client and/or the Company.
1.9 Personal Data: means information that by itself can be used to determine the identity of a person, including without limitation: name, address, social security number or other identification number or code, telephone number or email address.
1.10 Software: means the Company’s proprietary software identified and described in Exhibit 1.
1.11 Software’s Intellectual Property Rights: means all the intellectual property rights to the Software and rights to use the commercial names and trademarks distinguishing the Software, and any other rights that may further derive or be adjacent to them.
1.12 Tracking Data: means any data that the Company collects through tags on the Client’s websites via the Software, which includes any information that can be attributed to an end-user via technologies that record events related to such user’s activities on Clients’ properties. For the avoidance of doubt, Tracking Data shall not include any Personal Data.
2. Purpose. License. Scope.
2.1 Purpose: This Agreement establishes the terms and conditions under which the Company grants Client a limited license to use the Software, subject to the terms, conditions and restrictions set forth in this Agreement (hereinafter, the “License”).
2.2 License. Scope. The License: has the meaning ascribed to in Exhibit 1.
2.2.1 is non-exclusive and non-transferable.
2.2.2 is limited, since it is only granted to Client to use the Software pursuant to the terms set forth herein.
2.2.3 is valid for the Term, subject to the termination provisions set forth in this Agreement.
2.2.4 includes the Software maintenance and support services during working hours.
3.1 The Company is the sole and exclusive owner of the Software Intellectual Property Rights, and as such, it has the right to grant the License. In addition, the Company shall be the sole and exclusive owner of the Device Graph Data.
3.2 As between the Client and the Company, the Client retains all right, title and interest (including all intellectual property rights) in and to the Tracking Data. The Client authorizes the Company: (i) to collect, use, analyze and process the Tracking Data and to combine the Tracking Data with the Company’s data to produce Device Graph Data and to provide the Software and related services to the Client; (ii) to use Tracking Data to improve the Software and/or other services rendered by the Company; and (iii) to disclose Tracking Data to the extent required by law or court order, provided that the Company gives advance notice (if permitted by law) of such disclosure to Client and cooperates with Client to obtain confidential treatment for such data.
3.3 Any modifications, amendments and/or developments to the Software shall not be deemed as new intellectual work, whether original or otherwise, that may correspond to the authorship or ownership of any person other than the Company. The Company does not grant any rights to use any third-party’s software necessary for the use of the Software.
4. Conditions to use the Software
4.1 Client’s License to use the Software is subject to the terms and conditions set forth in this Agreement.
4.2 Under no circumstances, Client may:
a. obtain and/or make copies of the Software or authorize third-parties to obtain and/or make copies thereof, unless the Company expressly grants written authorization. In the event the Company authorizes Client to make copies of the Software, Client shall identify where the copies are installed and shall keep a registry of all the copies, such registry being available for access to the Company at any time.
b. conduct reverse engineering, decompilation or disassembly of the Software.
c. assign or transfer, in whole or in part, the License or grant sublicenses of the Software.
4.3 Client shall be exclusively bound to take the necessary actions and obtain, at its own expense, the necessary licenses and equipment to use the Software.
5. Terms and Conditions
5.1 The Agreement shall be valid as from the acceptance of the Client’s request to use the Software by Company.
5.2 A Party may terminate this Agreement for convenience immediately, with or without prior written notice to the other Party.
5.3 The termination of this Agreement for whichever reason shall entail the automatic termination of the License and the relationship arising therefrom.
5.4 Under any event of termination of this Agreement, within a period of 5 business days, Client shall: (i) delete the Software from the memory and supports of its authorized devices; (ii) destroy any authorized copy providing sufficient evidence thereon to the Company; (iii) return to the Company any documentary or material support of the Software; (iv) comply with the provisions stated in Section 7.5.
5.5 Section 1, 3, 7, 5.5 and 11 shall survive any termination of this Agreement.
6.1 The Software is free to use by Client in its freeware version. The Company shall determine and inform Client from time to time the freeware version’s limitations (i.e. limit to monthly conversions and features, among others).
7.1 All the information to which the Parties have access pursuant to this Agreement about each other shall be deemed as Confidential Information of the disclosing Party. The “Confidential Information” includes, without limitation, private information on the Software, products of the Company, its features, commercialization plans, marketing, promotion and terms negotiated in agreements to which the Parties are party.
7.2 The Confidential Information does not include information that: (i) the Parties knew before receiving it hereunder; (ii) is of public domain or subsequently becomes of public domain, or it is received by other source without, under both cases, entailing a violation of any confidentiality obligation under this Agreement.
7.3 The receiving Party undertakes to keep under absolute reserve all the Confidential Information of the disclosing Party. The receiving Party shall adopt all the precautions that are reasonably necessary to protect the Confidential Information. Under no circumstances such precautions may be less strict than the ones adopted by the receiving Party to protect its own confidential information.
7.4 The receiving Party shall communicate the Confidential Information to its employees, advisors or subcontractors only if they need to know it to conduct their obligations and such communication shall be subject to the confidential obligations established herein.
7.5 Where the Confidential Information is no longer necessary for the compliance of the License, Receiving Party shall return or destroy it, upon request by the disclosing Party.
7.6 The receiving Party shall serve immediate notice to the disclosing Party in the event of unauthorized use or disclosure of the Confidential Information and shall cooperate with the disclosing Party to recover such Confidential Information and avoid the subsequent unauthorized use or disclosure thereof.
7.7 The provisions set forth in this Section 7 shall remain valid until 2 (two) years after the termination of the Term, for whichever reason.
8. Data privacy
8.1 For purposes of using the Software, Client acknowledges and accepts that it shall include code, tags and/or other tracking technologies on its properties (including, subject to Cient’s approval, on its email newsletters and websites) for purposes of collecting Tracking Data.
8.2 Client shall be solely responsible (i) for assessing whether such code, tags and/or other tracking technologies can be used in compliance with applicable legal requirements, and (ii) for providing notice and/or obtaining consent, as may be required by law, for such use of code, tags and/or other tracking technologies and the authorization for its use by the Company.
8.3 The Company disclaims any liability to Client or any third-party arising from Client’s use of any code, tags and/or tracking technologies and Client shall defend, indemnify and hold harmless the Company, its directors and affiliates from any claim from third-parties arising thereto.
9. Indemnification of claims for infringement of intellectual property rights
9.1 Subject to the provisions of this Section 9, the Company shall defend and hold harmless Client for any claim arising from the Software’s violation of any third party’s copyright or trade secret, as long as Client informs the Company and sends all relevant information within a 3 business-day term as from the third-party’s claim.
9.2 The Company shall not be bound to indemnify Client if the claim referred to in this Section is caused by: (i) the misuse or modification of the Software by Client or its staff, (ii) Client’s failure to make the corrections, improvements or updates to the Software set forth by the Company and/or third parties appointed by the Company, (iii) the use of the Software in combination with any product or information not owned or developed by the Company, (iv) the distribution, trade or use of the Software by Client for the benefit of third-parties, or (v) the use of the Software after the receipt of notice served by the Company requesting to discontinue its usage.
9.3 Upon receipt of a claim referred to herein, or if the Company considers that there could be an infringement of the intellectual property rights of third parties in the usage of the Software, the Company may, at its own discretion, without implying an obligation, and without prejudice to the indemnity obligations herein: (i) obtain the right in favor of Client to continue using the Software, (ii) replace the Software with an equivalent software that is not-infringing, (iii) modify the Software so that it does not in breach the intellectual property rights of third-parties, or (iv) terminate the License.
9.4 The provisions set forth in this Section constitute a sole and exclusive remedy of Client and the total liability of the Company regarding the potential infringement referred to in this Section.
10. Limitation of liability
10.1 The Company only guarantees that the Software shall substantially work pursuant to the technical specifications described in Exhibit 1 of this Agreement. The sole guarantee of the Company regarding the Software shall be extended to the performance of repairs, corrections or replacements that are deemed necessary for the Software use according to the technical specifications stated in Exhibit 1.
10.2This Agreement (and its Exhibits thereto) states the Company’s sole and entire liability to Client, and Client’s sole remedy, for any failure or non‐performance of the Software. Under no circumstances shall the Company be liable for the indirect damages or loss of profits, losses or expenses (including without limitation the business interruption, business loss, loss of earnings o loss of savings) even when their possible existence would have been informed.
IN RELATION TO THE SOFTWARE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY HEREBY REJECTS AND EXCLUDES ANY GUARANTEE, REPRESENTATION AND CONDITION, WHETHER EXPRESS, IMPLIED OR BY LAW, NOT EXPRESSLY SET FORTH IN THIS AGREEMENT (INCLUDING ANY SERVICES PROPOSAL OR AGREEMENT IN RELATION THERETO), INCLUDING WITHOUT LIMITATION, THE OWNERSHIP CONDITIONS OR GUARANTEES, COMPLIANCE WITH INTELLECTUAL PROPERTY RIGHTS, SATISFACTORY QUALITY, MARKETABILITY, PROFITABILITY AND SUITABILITY FOR AN SPECIFIC PURPOSE. THE COMPANY DOES NOT ASSURE THAT THE SOFTWARE’S OPERATION SHALL BE UNINTERRUPTED OR FREE OF DELAYS, OR THAT FAILURES IN PERFORMANCE, COMPUTER VIRUSES, INACCURACIES, ERRORS OR FLAWS WILL NOT OCCUR. THE COMPANY DOES NOT ASSUME ANY RESPONSIBILITY AND WILL NOT BE HELD LIABLE FOR ANY DAMAGE TO, OR ANY VIRUS THAT MAY INFECT THE COMPUTERS OR OTHER PROPERTYY OF THE CUSTOMER, NOR CORRUPTION OR DATA LOSS, DUE TO THE ACESS OR USAGE OF THE SOFTWARE. THE COMPANY SHALL NOT BE LIABLE FOR ANY SERVICE OR PRODUCT PROVIDED BY THIRD-PARTIES, WHETHER SUCH THIRD-PARTIES ARE PROVIDERS, DEVELOPERS OR ADVISORS, EVEN IF THE COMPANY HAD IDENTIFIED THEM OR MADE REFERENCE TO THEM.
11.1 Relationship between the Parties. The Parties are independent contractors. This Agreement shall not constitute any kind of association. Client is not granted rights different from those explicitly stated in this Agreement and does not have the representation of the Company under no circumstances.
11.2 Client’s employees. Client represents being the sole liable Party as to its staff authorized to use the Software and shall hold the Company harmless against any claim that may be filed by employees, contractors and/or subcontractors of Client against the Company in relation hereto.
11.3 Updates. The Company may directly offer to Client updates of the Software as well as new products for the benefit of Client.
11.4 Assignment. The Client may not assign this Agreement or the rights granted hereunder unless the Company provides written and express authorization to such effect. The Company may assign this Agreement in whole or in part, with prior written notice to the Client.
11.5 Severability. Should any of the provisions set forth in this Agreement become invalid, the rest of the Agreement established herein shall not be affected and shall remain valid, enforceable and with full force and effect.
11.6 Waiver or tolerance. Any waiver to the rights or tolerance regarding the lack of fulfillment of the terms and conditions established herein shall have binding effects only if it is informed in writing. Such waiver or tolerance shall only be applied in the specified events, without affecting the enforceability of the terms and conditions set forth in this Agreement.
11.7 Force Majeure. The Parties shall not be liable for the non-compliance or delay in the fulfillment of its obligations undertaken if such non-compliance or delay arises from any total or partial force majeure event, provided the affected Party resumes the compliance of the undertaken obligations as soon as possible after the termination of the force majeure event.
11.8 Use of the name and trademark. The Client hereby authorizes and grants a limited license to the Company to use the Client’s name, trademark, logotype or any other distinctive symbol of solely for the purpose of identifying the Client as a customer of the Company.
11.9 Amendments. This Agreement includes all the terms and conditions agreed between the Parties and shall replace all the transactions, representations, statements, commitments, offers and agreements, whether oral or written, executed or exchanged between the Parties prior to the date hereof. Any waiver or any amendment or modification to these terms and conditions shall only be valid if it is made in writing and signed by the parties.
11.10 Notices. For the purpose of this Agreement and for any dispute that may arise, the Client sets forth its domicile at the email address and physical address established in the registration form, where all the notices or court or out-of-court demands shall be deemed valid. The Company’s domicile shall be:
- Despegar.com.ar S.A.
- Av. Jujuy 2013
- Ciudad Autónoma de Buenos Aires
11.11 Law and Jurisdiction. This Agreement shall be governed by the laws of Argentina, without reference to conflict of laws principles. Any action or proceeding to enforce this Agreement shall be brought in the commercial courts of the City of Buenos Aires, Argentina having subject matter jurisdiction and the Parties hereby submit to the personal jurisdiction of such courts and waive any venue objection. To the fullest extent permitted by law, the Parties hereby agree to waive trial by jury in any action, proceeding or counterclaim brought by or on behalf of either Party with respect to any matter whatsoever relating to this Agreement.
11.12 Compliance with anti-corruption laws. Client, or any of its employees, directors, officers, advisors, agents or representatives in connection with (or as payment for) the execution, registration or filing of this Agreement and/or its compliance or execution, (i) (a) shall not offer, promise or assign to third-parties (including any government officer or political party, or its officers, representatives or candidates), or shall not (b) try to obtain, accept or promise, in its own name or on account of third-parties, any gift, payment, compensation, retribution or benefit that constitutes, or may be deemed, a bribery, unlawful or corrupt practice, and (ii) shall comply with applicable laws regarding bribery and corruption practices (including the United States Foreign Corrupt Practices Act and the United Kingdom and North Ireland Anti-Bribery Act).
11.13 Acceptance of the Agreement. By using the Software Client accepts to be bound by the terms of the Agreement. The person accepting the Agreement represents and warrants to the Company that it has full power and authority to represent Client and comply with its obligations hereunder.
Consists of a series of services that can be used by the Client to obtain information about events that drive traffic to Client’s website and events that are considered as a conversion, for optimization purposes. Its purpose is to register such events and identify which of them have been made by the same user, in order to construe the marketing paths followed by the users (or, in other words, sort chronologically the conversions that form the user’s marketing path).
The services are hosted under the domain www.clicklab.com.
Consists of a graph that allows to identify and relate the different devices used by a same user. For this purpose, the Software will assign an ID to each user and relate all of such user’s devices to that ID.
Consists of a process that runs based on the marketing paths identified by ClickLab and the Device Graph, assigning a percentage of the conversion to each event of the user’s marketing path, in accordance with the attribution model selected by the Client.
The Company shall develop a standard attribution model for the Client during such period. Changes to the standard attribution models or development of custom attribution models for the Client are not included under this Agreement, but shall be budgeted by the Company upon Client’s request.
Consists of a series of queries that run on Client’s data stored on the system and upload query results to Client’s FTP server.
Support for the Software is provided in English and Spanish.