Azura General Terms and Conditions

BY USING THE SERVICE, CUSTOMER AGREES THAT CUSTOMER HAS READ AND UNDERSTOOD, AND AS A CONDITION TO CUSTOMER’S USE OF THE SERVICE, CUSTOMER AGREES TO BE BOUND BY THESE GENERAL TERMS AND CONDITIONS (“GENERAL TERMS”). THE PERSON WHO ENTERS INTO THE ORDER ON CUSTOMER’S BEHALF REPRESENTS THAT SUCH PERSON HAS THE AUTHORITY TO AND DOES BIND CUSTOMER TO THESE GENERAL TERMS. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Azura and Customer agree as follows:

  1. 1. General

    1. These general terms and conditions (the “General Terms”) shall apply to the delivery of the Service to the Customer. Details of the delivery are provided in the applicable purchase order (“Order”).
      1. Due to the digital nature of our product and immediate delivery via email, download link, or account download access.
    2. The following order of precedence shall be applied in the event of conflict or inconsistency between the Order and these General Terms: (i) the Order; (ii) schedules included with or referenced to in the Order or General Terms; (iii) these General Terms.

  2. 2. Definitions

    1. 2.1 Capitalized terms used in these General Terms shall have the following meaning:
      1. “Advertising Spend” means Customer’s monthly cost for the online advertising for which the Service will be used.
      2. “Agreement” means these General Terms and any Order referencing these General Terms, and any other schedules, supplements, statements of work, exhibits or appendices thereto, whether attached or incorporated by reference.
      3. “Confidential Information” means, with respect to Customer, the Customer Data, marketing and business plans and/or Customer financial information, and with respect to Azura: (a) the Service and service offering terms, including, without limitation, all (i) computer software (both object and source code) and related Documentation or specifications; (ii) techniques, concepts, methods, processes and designs embodied in or relating to the Service; and (iii) all application program interfaces, system security and system architecture design relating to the Service; and (b) Azura research and development, service offerings, pricing and availability. In addition to the foregoing, Confidential Information of either Azura or Customer (the Party disclosing such information being the “Disclosing Party” and the Party receiving such information being the “Receiving Party”) may also include information which the Disclosing Party protects against unrestricted disclosure to others that (i) the Disclosing Party or its representatives designates as confidential at the time of disclosure; or (ii) should reasonably be understood by the Receiving Party to be confidential given the nature of the information and the circumstances surrounding its disclosure.
      4. “Connector” means a group of Data Sources originating from the same provider and brand of such provider; e.g. the Facebook Data Sources used by Customer jointly one Connector, while the Instagram Data Sources used by Customer jointly another Connector.
      5. “Customer” means the entity that has entered into the Agreement: (i) by execution of an Order that references these General Terms; (ii) by having started using the Service after signing up for it at Azura’s website; or (iii) by any other legally binding method of acceptance of the Agreement.
      6. “Customer Data” means any data that Customer imports to the Service from a Data Source or that is generated from such data as a result of Customer’s use of the Service.
      7. “Effective Date” means the earlier of (i) the start date for the Service set out in the Order; or (ii) date of signing of the Order.
      8. “Data Destination” means a destination to which Customer Data is exported from the Service.
      9. “Data Source” means a digital source from which Customer Data is imported to be used in the Service.
      10. “Digital Advertising Data Source” means a Data Source whose data derives from digital advertising on the Internet.
      11. “Documentation” means Azura’s technical and functional documentation for the Service, prevailing at the time, which is made available to Customer.
      12. “FlexPoints” is a unit measurement to visualize available and used capacity, respectively, with regard to features in the Service, Data Sources, Connectors and Data Destinations. FlexPoints are applied for the Essentials, Plus, Enterprise, Agency Small, Agency Medium, and Agency Large Plans and the details of Customer’s capacity use is indicated by available FlexPoints as shown in the user interface of the Service. FlexPoints indicate capacity, have no cash value and are not redeemable for cash, any other equivalent currency or discounts. Unused capacity, as indicated by available FlexPoints, cannot be rolled over to any renewal subscription period.
      13. “Media Agency” a company that is directly or indirectly using the Service to provide media services or products to its clients.
      14. “Order” means the written order form or order confirmation provided by Azura (including, if Customer is ordering the Service online, a registration website) entered into by the Azura entity noted on the order and Customer containing the pricing, subscription period, and other specific terms and conditions applicable to the use of the Service.
      15. “Other Data Sources” means another Data Source than a Digital Advertising Data Source.
      16. “Party” or “Parties” shall mean each of Azura or Customer or Azura and Customer together.
      17. “Plan” means the applicable plan for Customer’s use of the Service, as specified in the Order and/or the user interface of the Service, with the applicable Plan details accessible via the user interface of the Service.
      18. “Service” means the Azura software as a service, described in the Order and Documentation or as provided by Azura when the Customer has signed up for using it at Azura’s website (subject to payment or for use during a free trial), including upgrades and updates thereto made available to the Customer pursuant to the Agreement.

  3. 3. Use of the Service

    1.  Provision of the Service. Azura shall make the Service available to Customer in accordance with the Order and during the term and hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable right to permit users to remotely access and use the Service solely for Customer’s own internal business purposes as permitted by and subject to the terms of the Agreement and the Documentation. If Customer is a Media Agency, Customer may use the Service to provide services to its designated clients, subject to the restrictions in Section 3.3. Any charges from a Data Source or a Data Destination provider, shall be the responsibility of the Customer (as part of the relationship between Customer and such third party).
    2.  Usage and capacity. Upon Customer’s request, and subject to Azura’s confirmation, additional Data Sources and Data Destinations may be added, and the use of Service features may be extended, during the term subject to:
      1.  the fees specified in the Order or as otherwise quoted by Azura upon receipt of such request; or
      2.  an increase in capacity, as indicated by the number of FlexPoints required for such extended usage, as specified for the applicable Plan.
        In the event Customer’s use of the Service requires processing of data volumes exceeding the Service’s data volume processing limits described in the Documentation, Azura reserves the right to charge the Customer for such increased data volume capacity as notified in advance by Azura.
    3. Restrictions. Customer may not: (i) sublicense, license, sell, lease rent or otherwise make the Service available to a third party; (ii) circumvent or disclose the user authentication or security of the Service or any host, network, or account related thereto; (iii) share non-public Service features or content with any third party; (iv) copy any ideas, features, functions or graphics of the Service or translate, disassemble, decompile, reverse-engineer or otherwise modify any parts of the Service; (v) infringe the intellectual property rights of any entity or person; (vi) interfere with or disrupt the Azura software or Azura systems used to provide or host the Service, or other equipment or networks connected to the Service; (vii) access the Service in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Service, or to copy any ideas, features, functions or graphics of the Service; or (iix) use the Service in a way that does not comply with applicable law.
    4. Change or modification of the Service. Azura may change or modify the Service at any time. During the term, Azura shall not materially diminish, reduce or eliminate any of the core functionalities of the Service. Customer shall be automatically entitled (as a part of and limited to its existing Agreement) to any functionality that is (as determined by Azura, acting reasonably) a direct replacement or succession of any functionality removed from or replaced in the Service without any payment of additional fees. For the avoidance of any doubt, Customer shall not be entitled to any functionality that is beyond the scope of an Order. Where Azura has materially diminished, reduced or eliminated any core functionality in the Service and no equivalent functionality is otherwise made available to the Customer, then Customer may terminate the Agreement in accordance with Section 11.
    5. Setup services and support. Azura shall provide setup services and support according to the applicable Plan.
    6. Information Security. Azura undertakes to use good industry practices for information security (such as password protection, encryption, and firewall protection, logging and monitoring) when providing the Service.

  4. 4. Customer’s responsibilities and obligations

    1. Customer Data. Customer is solely responsible for the accuracy, quality and integrity of the Customer Data that Customer enters into the Service or provides for input into the Service. Customer represents and warrants that it has collected and shall maintain and process all Customer Data in compliance with all applicable privacy and data protection laws and regulations. Customer is solely responsible for determining the suitability of the Service for Customer’s business and complying with any laws and regulations and terms and conditions applicable to the Customer Data and Customer’s use of the Service.
    2. Use of Data. In providing the Service, Azura analyses data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom) and uses such information and data to provide support services to Customer, including carrying out diagnostic and corrective measures, to improve and enhance the Service, i.e. proactive support services, for the benefit of Customer. Further, Azura shall be entitled to after anonymization and/or aggregation (during and after the term hereof) to (i) subject to Section 8, use such information and data to generally improve and enhance the Service and for development, diagnostic and corrective purposes in connection with the Service and other offerings, and (ii) disclose such data solely in aggregated or other de-identified form in connection with its business.
    3. Customer Account. Customer shall designate one of its employees to be the point of contact with Azura for the management and support of the Service, and who will be responsible for establishing and managing Customer’s use of the Service, including the creation of usernames and passwords to access Customer’s account. Customer is solely responsible for maintaining the status of its user base. Customer will safeguard all user authentication credentials in its possession or under its control. Customer is responsible for all activities that occur under its account, including without limitation unauthorised access. Customer will notify Azura immediately if Customer believes an unauthorised third party may be using Customer’s account or if Customer’s account information is lost or stolen.
    4. User Data. When fulfilling its obligations under the Agreement, Azura will collect and process such information, which is necessary to administrate Customer’s access and use of the Service and may constitute personal data, e.g. email addresses, authentication credentials and other data related to the use of the Service. Azura will be the controller and responsible for the processing activities mentioned in this Section 4.4 and Customer shall ensure that its users, which may be subject to such processing, are duly informed about it and consents to the processing.
    5. Suspension. Azura may, in addition to such other remedies as Azura may have, suspend Customer’s right to access or use any portion of the Service immediately without advance notice to Customer if Azura determines that Customer’s or its users’ use of the Service (i) do not comply with the prohibitions described in Section 3.3; (ii) poses a security risk to the Service or any third party; (iii) may adversely impact the Service, or the networks or data of any other Azura service provider, customer or business partner; (iv) does not comply with applicable law; or (v) may subject Azura or any third party to liability; or (vi) is a violation of the infrastructure provider’s acceptable use or similar policy. Azura will notify Customer of the reason for such suspension and may terminate the Agreement if Customer fails to rectify such use within thirty (30) days from notification by Azura.

  5. 5. Personal Data

    1. Customer may choose to import data from Data Sources which could include personal data in the Service. Accordingly, Azura may process personal data when providing the Service. The Customer is, or shall be regarded as a controller of the processing of such personal data and Azura is, or shall be regarded as, a processor of such personal data. Azura will process such personal data in accordance with the terms set forth in Schedule A Data Processing Agreement and Schedule B CCPA Addendum.

  6. 6. Ownership of Intellectual Property Rights

    1. Azura IP. Azura, or its licensors, own all right, title and interest in and to any and all copyrights, trademark rights, patent rights, database rights and other intellectual property or other rights in and to the Service, including without limitation all software, integrations, integrations with Data Sources and Data Destinations, technology and other rights used to provide the Service, and all graphics, user interfaces and any documentation, any improvements, design contributions or derivative works thereto, and any knowledge or processes related thereto and/or provided hereunder. Except for the limited rights expressly granted herein, the Agreement does not transfer from Azura any proprietary right or interest in the Service. All rights not expressly granted to Customer in the Agreement are reserved to Azura and its licensors.
    2. Customer IP. Customer shall own all right, title and interest in and to any copyrights, trademark rights, patent rights, database rights and other intellectual property or other rights in and to the Customer Data. Except for the limited rights expressly granted herein, the Agreement does not transfer from Customer any proprietary right or interest in the Customer Data. All rights regarding Customer Data not expressly granted to Azura in the Agreement are reserved to Customer.

  7. 7. Fees and Payment, Refunds

    1. Azura stands behind all of our products and we will resolve any faults or imperfections found in any of our products. If you have any questions about configuring the product please contact us.You can get a refund within 14 days after the purchase date if:Item is “not as described”
      Item doesn’t work the way it should
      Item support is promised but not provided

      Under no circumstances will a refund be issued 14 days after your purchase date.

    2. Payment. Customer shall pay to Azura the fees for the Service provided hereunder, in the amount set forth in the Order, by recurring credit card charges made on the first day of each subscription period or by invoice within thirty (30) days from the invoice date. Payment shall always be made by the start date when paying by credit card and prior to the start date of the Service when paying by invoice. Without limiting any other rights or remedies Azura may have, any amount not paid when due will be subject to interest equal to the lesser of: (i) 1.5% per month of the overdue amount; or (ii) the highest lawful rate allowed by applicable law. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. In addition to any interest due under this Section 7.2 Customer shall reimburse any costs or expenses (including, but not limited to, any penalties, charges and legal and other reasonable professional costs and expenses) incurred by Azura to collect any amount that is not paid when due.
    3. Taxes. All fees are exclusive of taxes, levies, and duties, and Customer shall be responsible for payment of all such taxes, levies, and duties, including value-added tax (VAT), withholding, or similar taxes. Azura may calculate taxes based on the billing information Customer provides.
    4. Fee Increase. Azura may increase the fees for the Service, which will be effective at the beginning of the next subscription period. Azura will notify Customer of any increase prior to it becoming effective; notice may be in the form of an invoice. Customer acknowledges that expiration of any discount or incentive programs to which Customer was previously entitled does not constitute a fee increase.
    5. Effects on non-payment. Azura may suspend Customer’s access to the Service without advance notice if Customer fails to pay in full when due. Azura will notify the Customer of the reason for the suspension.

  8. 8. Confidentiality

    1. Restrictions on Use and Disclosure. Confidential Information shall not be used or reproduced in any form except as required to accomplish the intent of the Agreement. Any reproduction of any Confidential Information of the other Party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends, which appear on the original. With respect to the Confidential Information of the other, each Party (i) shall take all Reasonable Steps (defined below) to keep all Confidential Information strictly confidential; and (ii) shall not disclose any Confidential Information of the other to any person other than individuals whose access is necessary to enable it to exercise its rights and/or perform its obligations hereunder and who are under obligations of confidentiality substantially similar to those set forth herein. As used herein “Reasonable Steps” means those steps the Receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. Confidential Information of either Party disclosed prior to execution of the Agreement shall be subject to the protections afforded hereunder.
    2. Exclusions. Confidential Information does not include information that the Receiving Party can establish: (i) has entered the public domain without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (ii) has been rightfully received by the Receiving Party from a third party without confidentiality restrictions; (iii) is known to the Receiving Party without any restriction as to use or disclosure prior to first receipt by the Receiving Party from the Disclosing Party; or (iv) has been independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
    3. Disclosure Required By Law. If the Receiving Party is compelled by law or legal process to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prompt prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s expense, if the Disclosing Party wishes to contest the disclosure.

  9. 9. Warranties

    1. Mutual. Each Party represents and warrants to the other Party: (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; (iii) the representative who entered into this Agreement on behalf of a Party has been duly authorized by all necessary corporate or organizational action of such Party; and (iv) this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
    2. Service. Azura warrants that the Service will substantially conform to the specifications stated in the Agreement and the Documentation. The foregoing warranty shall not apply to the extent: (i) the Service is not being used in accordance with the Agreement and/or any Documentation; (ii) any non-conformity is caused by third party products, content or service being accessed through the Service that are identified as third party products, content or service not part of the Service (e.g. a Data Source or Data Destination); or (iii) the Service being used was provided for free (no fee) or is a trial use of the Service. Subject to Section 9.5, Customer’s sole and exclusive remedy, and Azura’s entire liability for breach of the limited warranty in this Section 9.2, shall be correction of the warranted non-conformity or, if Azura fails to correct the warranted non-conformity after using reasonable commercial efforts, Azura may terminate access to the non-conforming Service and refund the fees paid by Customer for the Service for the remainder of the term (starting on the date Customer reported the non-conformity).
    3. Insurance. Azura is insured with financially sound and reputable insurance companies, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses, providing similar services and in localities where Azura operates.
    4. Viruses. Azura warrants that it shall exercise commercially reasonable efforts to keep the Service free of all computer viruses, Trojan horses, and comparable malicious code intended to harm the Customer’s systems (collectively, “Virus”) provided that Azura shall not be responsible for any such Virus that is placed on the Service by Customer or its users or any third party.
    5. Remedies. In case of any non-conformity described in this Section 9, Customer shall provide Azura with prompt written notice for any non-conformity of the Service, within thirty (30) days from Customer’s discovery, or when it reasonably should have discovered, such non-conformity.
    6. Warranty disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, Azura DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, TERMS, CONDITIONS OR STATEMENTS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE REGARDING ANY MATTER, INCLUDING THE MERCHANTABILITY, SUITABILITY, ORIGINALITY, OR FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT OR RESULTS TO BE DERIVED FROM THE USE OF OR INTEGRATION WITH THE SERVICE OR OTHER MATERIALS PROVIDED UNDER THE AGREEMENT, OR THAT THE OPERATION OF THE SERVICE WILL BE SECURE, UNINTERRUPTED OR ERROR FREE.

  10. 10. Third Party Indemnification

    1. Claims Brought Against Customer. Azura shall defend (at its sole expense) Customer against claims brought against Customer by any third party alleging that Customer’s use of the Service, in accordance with the terms and conditions of the Agreement, constitutes an infringement or misappropriation of a patent claim(s), copyright, or trade secret rights or any other third party intellectual property rights. Azura will pay damages finally awarded against Customer with respect to such claims, and will pay reasonable attorney’s fees in connection with such defense. This obligation of Azura shall not apply if the alleged infringement or misappropriation results from use of the Service in conjunction with any other software or service not provided by Azura or in the event of free (no fee) or trial use of the Service.
    2. Intellectual Property Claims. In the event a claim under Section 10.1 is made or in Azura’s reasonable opinion is likely to be made, Azura may, at its sole option and expense: (i) procure for Customer the right to continue using the Service under the terms of the Agreement; or (ii) replace or modify the Service to be non-infringing without material decrease in functionality. If Azura provides written notice to Customer that the foregoing options are not reasonably available, Azura or Customer may terminate the Agreement and Azura shall refund to Customer all prepaid fees for the remainder of its term after the date of termination.
    3. Claims Brought Against Azura. Customer shall defend (at its sole expense) Azura and licensors against claims brought against Azura by any third party arising from or related to an allegation that the Customer Data used in connection with the Service violates, infringes or misappropriates the intellectual property rights of a third party. Customer will pay damages finally awarded against Azura with respect to such claims, and will pay reasonable attorney’s fees in connection with such defense. The foregoing shall apply regardless of whether such damage is caused by the conduct of Customer or by the conduct of a third party using Customer’s access credentials.
    4. Conditions. The obligations under this Section 10 are conditioned on (i) the Party against whom a third party claim is brought timely notifying the other Party in writing of any such claim, provided however that a Party’s failure to provide or delay in providing such notice shall not relieve a Party of its obligations under this Section 10 except to the extent such failure or delay prejudices the defense; (ii) the Party who is obligated hereunder to defend a claim having the right to fully control the defense of such claim; and (iii) the Party against whom a third party claim is brought reasonably cooperating in the defense of such claim. Any settlement of any claim shall not include a financial or specific performance obligation on or admission of liability by the Party against whom the claim is brought, provided however that Azura may settle any claim on a basis requiring Azura to substitute for the Service any alternative substantially equivalent non-infringing service. The Party against whom a third party claim is brought may appear, at its own expense, through counsel reasonably acceptable to the Party obligated to defend claims hereunder. Neither Party shall undertake any action in response to any infringement or misappropriation, or alleged infringement or misappropriation that is prejudicial to the other Party’s rights.
    5. Third Party Indemnification Disclaimer. THE PROVISIONS OF THIS SECTION 10 STATE THE SOLE, EXCLUSIVE AND ENTIRE LIABILITY OF A PARTY TO THE OTHER PARTY, AND IS THE OTHER PARTY’S SOLE REMEDY, WITH RESPECT TO THIRD PARTY CLAIMS COVERED HEREUNDER AND TO THE INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.

  11. 11. Term and termination

    1. Term. The term of the Agreement shall begin on the Effective Date and shall continue for the subscription period designated in the Order, including any renewals, or if no subscription period is designated in the Order, until terminated by one of the Parties. If a subscription period is designated in the Order, the term will renew automatically on the last day of each subscription period for an additional time period corresponding to the prior subscription period.
    2. Termination for Cause. Azura may terminate the Agreement (including without limitation Customer’s access to the Service) without advance notice if Customer fails to pay applicable fees when due. Either Party may terminate the Agreement for any other material breach by the other Party via written notice, effective in thirty (30) days unless the other Party within such time period cures such breach.
    3. Termination without Cause. Either Party may terminate the Agreement without cause by providing notice of termination at least thirty (30) days prior to the end of the then-current subscription period.
    4. Effects of Termination. Upon termination of the Agreement, Customer shall cease all use of the Service and delete, destroy, or return all copies of the Documentation in its possession or control.
    5. Surviving Sections. The following provisions shall survive termination or expiration of the Agreement: (i) Section 3.3 Restrictions; (ii) Section 6 Ownership of Intellectual Property Rights; (iii) Section 7 Fees and Payment; (iv) Section 8 Confidentiality; (v) Section 9 Warranties; (vi) Section 10 Third Party Indemnification; (vii) Section 11.5 Surviving Sections; (viii) Section 12 Limitation of Liability; (ix) Section 14 Dispute Resolution; and (x) any other provision of the Agreement that must survive to fulfill its essential purpose.

  12. 12. Limitation of liability

    1. Death or Personal Injury. Nothing in the Agreement shall limit or exclude either Party’s liability for death or personal injury caused by its negligence; or for fraud or fraudulent misrepresentation; or any other liability that may not be excluded or limited by law.
    2. Exclusion of Liability. SUBJECT TO SECTION 12.1, AND EXCLUDING GROSS NEGLIGENCE, IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY, OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING DAMAGES FOR LOSS OF DATA, GOODWILL, DIRECT OR INDIRECT PROFITS, INVESTMENTS; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF (I) THE PERFORMANCE OR NON-PERFORMANCE OF THE AGREEMENT OR THE SERVICE PROVIDED HEREUNDER, OR (II) ANY CLAIM, CAUSE OF ACTION, BREACH OF CONTRACT OR ANY EXPRESS OR IMPLIED WARRANTY, UNDER THE AGREEMENT OR OTHERWISE, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT. If the Order includes a free trial or other period during which the Service is provided free of charge (“Trial Period”), then the following terms apply for the Trial Period: NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DURING THE FREE TRIAL PERIOD THE SERVICE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND Azura SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICE FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE Azura’S LIABILITY WITH RESPECT TO THE SERVICE PROVIDED DURING THE FREE TRIAL PERIOD SHALL NOT EXCEED $100.
    3. General Limitation of Liability. Subject to Section 12.1, 12.2, and excluding Section 7 Fees and Payment or any other liability which cannot be excluded or limited by applicable law, the aggregate liability of each Party to the other Party, or any third party in connection with the Agreement, shall not exceed the annual fees payable for the Service under the Agreement.
    4. Allocation of Risks. The provisions of the Agreement allocate the risks between Azura and Customer. The Service fees reflect this allocation of risk and limitations of liability herein. The aforementioned liability limitations shall include any claims against employees of, subcontractors of, or any other persons authorised by either Party.

  13. 13. Miscellaneous

    1. No Partnership. The Parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties is created hereby. Notwithstanding any other provision in the Agreement, nothing in the Agreement shall create or confer (whether expressly or by implication) any rights or other benefits in favour of any person not a party hereto.
    2. Collaboration Partners and Publicity. Customer agrees to Azura sharing Customer being a customer of Azura’s with Azura’s collaboration partners, subject to appropriate confidentiality provisions. Further, and provided that a Party complies with any trademark usage requirements notified to it by the other Party, each Party may refer to the other Party as a customer (for Azura) and a vendor (for Customer) and use the other Party’s logo as part of such reference. Upon execution of the Agreement, Azura may either (i) issue a press release announcing the relationship between Azura and Customer; or (ii) submit a joint press release to Customer for Customer’s approval, such approval not to be unreasonably withheld or delayed. Customer agrees to be a reference account for Azura, provided however that Azura will provide Customer with reasonable notice and obtain Customer’s consent before scheduling any reference calls.
    3. Non-solicitation of personnel. During the term of the Agreement, and for a period of twelve (12) months thereafter, neither Party will, without the prior written consent of the other, directly or indirectly solicit, hire or employ any employee or individual independent contractor of the other Party who has been involved in the provision of the Service during the preceding year to become an employee or individual independent contractor of the other. Nothing in this Section 13.3 will make a Party liable for general solicitations in the media or on the Internet.
    4. Force majeure. Any delay or non-performance of any provision of the Agreement caused by conditions beyond the reasonable control of the performing Party (force majeure) shall not constitute a breach of the Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.
    5. Severability, invalidity. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any Section of the Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of the Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfil its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of the Agreement will continue in full force and effect.
    6. Waiver. Neither Party will be deemed to have waived any of its rights under the Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of the Agreement will constitute a waiver of any other breach of the Agreement.
    7. Construction. The Parties agree that the terms of the Agreement result from negotiations between them. The Agreement will not be construed in favor of or against either Party by reason of authorship.
    8. Execution of the Order. The Order shall be signed in two counterparts, each of which shall be deemed an original and which shall together constitute one Order. An Order may also be executed electronically. Signatures sent by electronic means (facsimile or scanned and sent via email, or signed by electronic signature service where legally permitted) shall be deemed original signatures.
    9. Assignment. Neither Party may assign any of its rights or obligations under the Agreement without the prior written consent of the other, which will not be unreasonably withheld, conditioned or delayed, however Azura may assign or delegate some or all of its rights and obligations under the Agreement to any of its affiliates, or to an entity as part of a corporate reorganization, or upon a change of control, consolidation, merger, sale of all or substantially all of its business or assets related to the Agreement, or a similar transaction or series of transactions. Subject to the foregoing restriction on assignment by Customer, the Agreement will be binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
    10. Subcontractors. Azura shall be entitled to engage subcontractors for the provision of the Service without Customer’s prior consent, and shall be liable for all acts and omissions of subcontractors, as for its own acts and omissions. In respect of processing of personal data, Section 5 applies.
    11. Entire agreement. The Agreement constitutes the complete and exclusive statement of the agreement between Azura and Customer in connection with the Parties’ business relationship related to the subject matter hereof, and all previous representations, discussions, and writings (including any confidentiality agreements) are merged in, and superseded by the Agreement and the Parties disclaim any reliance on any such representations, discussions and writings. The Agreement shall prevail over any additional, conflicting, or inconsistent terms and conditions, which may appear on any purchase order furnished by Customer, and any additional terms and conditions in any such purchase order shall have no force and effect, notwithstanding Azura’s acceptance or execution of such purchase order.
    12. Amendment. Azura may amend the General Terms from time to time by posting the amended version of the General Terms at its website. Such amended General Terms shall be deemed accepted and become effective:
      1. upon posting thereof where the amendments to the General Terms are made to comply with mandatory law; and
      2. as of the beginning of the next subscription period after the posting thereof for other amendments to the General Terms than such described in Section 13.12.1,
    13. Notices. Any notice required to be given by either Party in writing under the Agreement shall be deemed to have been duly received (i) on the day of delivery, if delivered personally; (ii) on the date of confirmation of receipt from the notified Party, if sent by email (iii) on the second working day after sending, if sent by reputable overnight courier (with delivery receipt obtained); or (iv) on the fifth working day after sending, if sent by registered or certified mail, to the address or email address of the recipient set forth in the Order (or to such other address or email address of the recipient notified to the sender by the recipient for the purpose of the Agreement).

  14. 14. Dispute Resolution

    1. Governing law and jurisdiction. Subject to Section 14.2, the Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall:
      1. if Azura (Azura Gmbh) is the party to the Agreement, be interpreted, construed and enforced in all respects in accordance with Swedish law, without regard to its conflict of law principles; or
    2. Settlement by good-faith discussions. All disputes arising out of or in connection with the Agreement shall be attempted to be settled by good-faith negotiations between senior management of both Parties. Such negotiations shall commence within two weeks from the date of written request from a Party to the other. In the event that negotiations do not result in a resolution of the dispute within one (1) month from said written request, a Party may proceed to dispute resolution as set forth below. Both Parties agree and acknowledge that that the commencement of such dispute resolution process shall not relieve either Party from its continued duties and obligations under the Agreement, including but not limited to any payments due.
    3. Disputes. Any dispute, controversy or claim arising out of or in connection with the Agreement, or the breach, termination or invalidity thereof, which has not been resolved amicably as set forth in Section 14.2, shall:
      1. if Azura (Azura Gmbh) is the party to the Agreement, be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The arbitral tribunal shall be composed of three arbitrators. The seat of arbitration shall be Stockholm, Sweden. The language to be used in the proceedings shall be English. The arbitration award shall be final and binding upon the Parties; or
    4. Confidentiality. The confidentiality undertaking in Section 8 shall apply to any arbitration process or court proceedings hereunder, including any award or judgement.

SCHEDULE A

DATA PROCESSING AGREEMENT

  1. 1. Background

    1. This Data Processing Agreement (“DPA”) is an appendix to the Azura General Terms.
    2. The purpose of this DPA is to fulfil the requirements of a written agreement pursuant to Article 28 of the GDPR.

  2. 2. Definitions

    1. In this DPA the following terms shall have the following meanings:
      1. “Data Protection Laws” refers to Regulation (EU) 2016/679 of the European parliament and of the council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (“GDPR”) including supplementing legislation acts and decisions.
      2. ”DPA” refers to this Data Processing Agreement and all annexes hereto.
      3. “Personal Data” refers to the personal data that Azura processes on behalf of Customer pursuant to the Agreement.
      4. “personal data breach”, “controller”, “data subject”, “personal data”, “processor” and “processing” all have the meaning given under the GDPR.

  3. 3. Processing instructions

    1. In consideration of Customer making available the Personal Data to Azura, Azura agrees to process the Personal Data in accordance with the terms and conditions of this DPA.
    2. Subject to clause 3.3 in this DPA, the Parties acknowledge and agree that:
      1. i. for the purposes of this DPA and as between them, Customer is, or shall be regarded as, a controller of the Personal Data and Azura is, or shall be regarded as, a processor of the Personal Data; and
      2. ii. Customer will comply with its obligations as a controller under the Data Protection Laws and Azura will comply with its obligations as a processor under this DPA, the Data Protection Laws and Customer’s written instructions.
    3. Customer instructs Azura, and Azura agrees to, process the Personal Data in accordance with the instructions put forward in Annex 1.

  4. 4. Confidentiality of processing

    1. Azura shall ensure that all persons it authorizes to process the Personal Data are subject to a duty of confidentiality (whether a contractual duty or a statutory duty) and only process the Personal Data as set out in this DPA.
    2. Azura shall ensure that only persons who needs to process the Personal Data, in order for Azura to supply the Service, have access to such Personal Data.

  5. 5. Data subject rights

    1. Azura shall provide reasonable assistance, taking into account the nature of processing and the information available to Azura, to Customer to enable Customer to respond to:
      1. i. any request relating to the Personal Data from a data subject to exercise any of its rights under Data Protection Laws;
      2. ii. any other correspondence, enquiry or complaint received from a data subject or regulator in connection with the processing of the Personal Data by Azura.
    2. If any such request, correspondence, enquiry or complaint is made directly to Azura, Azura shall without undue delay inform Customer of such request, correspondence, enquiry or complaint.
    3. Azura shall not disclose any Personal Data in response to a request for access or disclosure from any third party without Customer’s prior written consent, unless where Azura is compelled to do so in accordance with applicable law or as otherwise allowed under this DPA or the Agreement.

  6. 6. Data protection impact assessments

    1. If requested by Customer, Azura shall provide Customer with reasonable assistance in order for Customer to conduct a data protection impact assessment; and if necessary, consult with its relevant supervisory authority.

  7. 7. Security

    1. Azura shall implement and maintain appropriate technical and organisational measures to protect the Personal Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or access.
    2. Azura shall notify Customer of any personal data breach involving the Personal Data that it becomes aware of without undue delay, and in any case, never later than 48 hours after Azura becomes aware of the personal data breach. All such notifications shall be made at Azura’s discretion by a phone call or email to Customer representative that Azura regularly liaises with, or such privacy contact person notified to Azura by Customer.
    3. If the personal data breach may be attributed to Azura’s processing of the Personal Data, Azura shall cooperate with Customer and provide Customer with reasonable assistance and information in the investigation of a personal data breach.
    4. Each Party shall bear its respective costs associated with managing a personal data breach and fulfilling its respective obligations under this DPA or the Data Protection Laws.

  8. 8. Sub-Processors

    1. Customer gives Azura a general written authorisation to subcontract any processing of the Personal Data to a third-party subcontractor.
    2. Azura shall, upon request from Customer, provide a list to Customer of the third-party subcontractors Azura engages with in its processing of the Personal Data.
    3. Azura shall impose data protection terms to an equivalent standard as provided for under this DPA for all its subcontractors.
    4. Azura shall remain fully liable for the processing of the Personal Data that its subcontractors process under this DPA.

  9. 9. Audit

    1. Azura shall permit Customer, or its appointed third-party independent auditors bound by customary confidentiality undertakings, to audit Azura’s compliance with this DPA, and shall make available to Customer information necessary for demonstrating compliance with the obligations under this DPA with regard to Azura’s processing of its Personal Data. Azura acknowledges that Customer’s third-party independent auditors may enter its premises for the purposes of conducting this audit, provided that Azura is given reasonable prior notice of Customer’s intention to audit, the audit is conducted during normal business hours, and takes all reasonable measures to prevent unnecessary disruption to Azura’s operations. Customer will not exercise its audit rights more than once in any twenty-four (24) calendar month period, except if, and when, required by instruction of a competent supervisory authority.

  10. 10. International data transfers

    1. Customer gives Azura permission to transfer and process the Personal Data outside the European Economic Area, as long as Azura transfers such Personal Data in accordance with one of the allowed mechanisms prescribed by the Data Protection Laws.

  11. 11. Terms and termination

    1. This DPA shall be in effect for as long as Azura processes Personal Data for Customer. Upon termination of the Agreement, Azura shall destroy or return the Personal Data to Customer, depending on what Customer chooses. If Customer has not informed Azura of its choice within one (1) month from the termination of the Agreement, Azura shall destroy all Personal Data in accordance with Azura’s retention plan (generally within another one month period).
    2. At the request of Customer, Azura shall confirm the actions taken regarding the Personal Data after the completion of the process mentioned in clause 11.1 in this DPA.
    3. If Customer chooses that Azura should destroy the Personal Data, in accordance with clause 11.1 in this DPA, it shall not apply to the extent that Azura is required by any European Union, or Member State, law or other applicable law to retain such data.
    4. 11.4 All clauses of this DPA which by their nature should survive termination will survive termination.