Terms of Service and Platform License Agreement

Last revised on November 8, 2018, effective as of November 8, 2018

This Platform License Agreement is entered into by and between the Parties set forth above as of the date of initial signup to the Nusii Service. ("Effective Date").

Recitals

WHEREAS, Nusii Proposals, S.L. ("Nusii") owns and operates an online Software as a Service platform that enables ‘users to compose, send and track business proposals to customers or prospective customers (hereinafter, the "Platform");

WHEREAS, Company desires to license the Platform from Nusii and Nusii desires to license the Platform to Company on the terms and subject to the conditions established herein.

NOW, THEREFORE, in consideration of these premises and the mutual covenants set forth herein, the Parties hereby agree as follows:

Agreement

Section 1. Definitions.

"Proposal" means a document that can be created within the Nusii platform and sent to prospective customers; the "Nusii Service".

"Data Controller" means the entity which determines the purposes and means of the processing of Personal Data. Under this agreement Data Controller specifically refers to Company.

"Data Processor" means the entity which processes Personal Data on behalf of the controller. Under this agreement Data Processor specifically refers to Nusii.

"Data Subject" see "Personal Data" below.

"Documentation" means technical specifications and usage guidelines with respect to the Platform, as may be promulgated by Nusii from time to time.

"Intellectual Property Rights" means all worldwide copyright, trademark, trade secret, and all rights related –if any-, to issued and pending patents, and all copyright, trademark and patent registrations and applications for registrations (including patent reissues, divisions, continuations, continuations-in-part, renewals and extensions), design rights, database rights, proprietary information rights and all other similar proprietary rights as any exist anywhere in the world.

"Monthly Fee" shall have the meaning set in Section 5 "Fees and Payments" below.

"Personal Data" means any information relating to an identified or identifiable natural person (hereinafter, a "Data Subject"); an identifiable natural person is one who can be identified, directly or indirectly, by reference to an identifier such as a name, an identification number, precise location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

"Standard Contractual Clauses" means the standard contractual clauses annexed to the EU Commission Decision 2010/87/EU of 5 February 2010 for the Transfer of Personal Data to Processors established in Third Countries under the Directive 95/46/EC, or any successor standard contractual clauses that may be adopted pursuant to an EU Commission or other competent body/authority decision.

Section 2. Grant of License

(a) Nusii hereby grants to Company a non-exclusive, not subject to sublicense, non-transferable, revocable right and license during the Term and within the Territory to use the Platform and the Nusii Service for its own use (the "License"), subject at all times to the License restrictions set forth in Section 3 hereof.

(b) Nusii’s grant to Company of this License is not a sale and under no circumstances can be construed as a sale to the Company or to any third party of the Platform or any portions thereof. All rights not expressly granted to Company by Nusii hereunder are hereby expressly reserved.

Section 3. License Restrictions and Other Limitations

(a) Company agrees that it will not itself, or through any parent, subsidiary, affiliate, agent or other third party sell, lease, license, sublicense, encumber or otherwise deal with any portion of the Platform, including any and all applicable software and Documentation.

(b) Company agrees that it will not, without Nusii’s prior written consent, provide, disclose, divulge or make available the Platform or any of the Documentation to any persons other than Company’s or Company's Affiliates' employees under obligation of confidentiality to the Company.

(c) Company shall not (i) disassemble, decompile, reverse engineer or otherwise attempt to discover any source code or underlying proprietary information relating to the Platform, or (ii) use any portion of the Platform, Nusii’s Intellectual Property Rights or other intellectual property including know-how of Nusii to create similar or derivative works or for any other use or purpose not expressly permitted by this Agreement. Nusii’s “know-how” means Documentation, designs, technical information, instruction and training manuals and specification concerning the technology for the Platform.

(d) Company and its employees are prohibited from (i) modifying or altering the Platform in any way, (ii) damaging, misusing, improperly operating, or abusing the Platform, and introducing any computer virus or malicious or unauthorized programming code(s) into the Platform.

(e) Company shall not use the Platform to promote Products or Services containing:

Section 4. Additional Services

(a) Immediately after the Effective Date Nusii shall provide Company with a unique login to enable Company access to the Platform and the Nusii Service in accordance with this Agreement. Company shall be responsible for maintaining the confidentiality of all such login information, including its password, and hereby irrevocably accepts responsibility for all activities that occur in relation to Company’s user account. Additionally, Nusii shall also provide Company with such Documentation as Nusii deems appropriate to enable Company to utilize the Platform for the uses set forth in this Agreement.

(b) Nusii shall provide Company with access to support Documentation comprising glossary of terms, FAQs and manuals, as well as to a ticket reporting system. Support is available from 10 a.m. to 6 p.m. CET, Monday through Friday, excluding holidays.

Section 5. Fees and Payments

(a) Company shall pay Nusii a Monthly or Annual (at Company’s choosing) Fee, for the ability to use the Platform in accordance with Nusii’s pricing scheme as published in Nusii’s website and as updated from time to time.

(b) Invoices shall be issued once a month and on same the day that Company originally signed up for the Nusii Service. All Fees shall be prepaid via the Platform. The cancellation of any plan is effective immediately and no remaining unused or unconsumed time will be refunded to Company.

(c) All payments under this Agreement will be made in the currency defined at the time when Company originally signed up for the Nusii service.

(d) If any fees or payments due to Nusii pursuant to this Agreement are not paid by Company by the due date thereof, after three attempts to receive payment Nusii will freeze Company’s account. No usage of the Platform will be available to Company while the Company’s account is frozen. If after 60 days Company fails to honor said payments, Company’s account will be permanently deleted and all associated data and Personal Data will also be permanently removed and deleted from the Platform.

(e) In the event Company disputes the calculation of any fees or payments owed to Nusii pursuant to this Agreement, it must provide written notice of such dispute within fourteen (14) days of the date a disputed amount was otherwise due and owing to Nusii. Upon timely submission of a notice of dispute pursuant to this Section 5(e), the Parties will work in good faith to resolve this dispute for a period of thirty (30) days and if, at the end of such 30 day period, no resolution has been reached, the Parties shall submit to binding arbitration,. Any arbitration to be held pursuant to this clause will follow the provisions set forth in Section 14. g) below.

Section 6. Intellectual Property

(a) Company hereby acknowledges that Nusii owns all rights, titles and interests in and pertaining to the Platform, the Nusii Service, the Documentation and all Intellectual Property Rights associated therewith, including the layout (look and feel), design, texts and organization of the Platform and any reports or data generated by the Platform and Company shall not acquire any right, title or interest in the Platform, Nusii Service, Documentation and all Intellectual Property Rights associated therewith, including without limitation the layout (look and feel), design, texts and organization of the Platform and any reports or data generated by the Platform. All rights not expressly granted in this Agreement are expressly reserved.

(b) Company grants to Nusii a non-exclusive, worldwide, perpetual, royalty-free license to transmit over the Internet, use, display, copy, translate, and create derivative works in respect of any Intellectual Property Rights embodied in any proposal and in any information provided by Company (or its clients) to Nusii pursuant to this Agreement and/or utilized by Nusii on behalf of Company (or its clients) on the Platform pursuant to this Agreement.

(c) Company grants to Nusii a non-transferrable, non-exclusive, not subject to sublicense, royalty-free, right and license to use and display those trade names, trademarks, service marks, and logos of the Company (collectively “Company Marks”) in fulfillment of its obligations under this Agreement and, upon prior written approval (email sufficient), in other promotional materials for Nusii’s business and services for the purposes of promoting the existence of the relationship between the Parties. Upon Company’s prior written approval (email sufficient), Nusii may issue a press release relating to this Agreement and the relationship of the Parties.

Section 7. Confidentiality

Each Party will hold all Confidential Information (as defined below) of the other Party in strict confidence and will not disclose any Confidential Information to any third party. The Parties will disclose the Confidential Information of the other Party only to its respective employees, contractors, and agents who need to know such information for the purposes of performing their respective obligations under this Agreement and who are bound in writing by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Company may disclose Confidential Information in connection with this Agreement to agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers, financing sources and financial advisors) of Company or its Affiliates (on a need to know basis and to the limited extent of enabling such advisors to provide services to Company). Any third party receiving access to Confidential Information must be bound by obligations of confidentiality with respect to such Confidential Information at least as protective as those contained herein (and Company remains liable for all actions by the third parties it shared Confidential Information with as for its own). Neither Party will use any Confidential Information of the other Party for the benefit of itself or any third party or for any purpose other than performing its obligations or exercising its rights under this Agreement. Each Party will use the same degree of care that it uses to protect its own confidential and proprietary information of similar nature and importance (but in no event less than reasonable care), to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Confidential Information of the other Party. “Confidential Information” means any information, including, without limitation, technical information, specifications, source code and supporting documentation, business plans, marketing plans, financial projections and other confidential information disclosed by one Party to the other Party, directly or indirectly, in writing, orally, electronically, or in any other form, that is designated, at or before the time of disclosure, as confidential or proprietary. Confidential Information includes, without limitation, in the case of Nusii all statistical or other data provided by it to Company in connection with the hosting of any proposal on the Platform. Notwithstanding the foregoing, Confidential Information does not include information that: (i) was known to the receiver prior to receipt from the discloser directly or indirectly from a source other than one having an obligation of confidentiality to the discloser; (ii) became known (independently of disclosure by the discloser) to the receiver directly or indirectly from a source other than one having an obligation of confidentiality to the discloser; (iii) became publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiver; (iv) was independently developed by the receiver without use of or reference to the Confidential Information; or (v) relates to the announcement set forth in Section 6, c) above. If the disclosure of Confidential Information of a Party is required by law, such Party shall promptly notify the disclosing Party in advance of such required disclosure (to the extent not prohibited by law) and use its best efforts to minimize the scope of such disclosure. Company shall immediately notify Nusii in the event any employee of Company in possession of login information for the Platform should cease to be in service with the Company so that Nusii may disable such login information.

Section 8. Data Processing

(a) Except as set forth in Subsection 8(d) below, as between the parties, each party will own all data it provides to the other in connection with this Agreement, and the receiving party will use all such data only as reasonably required for the performance of its obligations and exercise of its rights under this Agreement, and will not disclose such information except to third parties to which the disclosing party has a reporting obligation, and then only to the extent required to fulfill the same to a commercially reasonable extent.

(b) Subject to the terms of this Section 8(b), Nusii will have the perpetual and irrevocable right to collect, use and store any and all data obtained as a result of the operation of the Platform (collectively, “Performance Data”); provided, however, that Performance Data expressly excludes data that identifies a specific Data Subject, which information shall be treated under Section 8(d). Nusii shall own all such Performance Data, and shall have the right to use and disclose Performance Data (i) as needed to perform its obligations hereunder, (ii) in order to fulfill its obligations to the relevant third party entities to which it has reporting obligations, as applicable, and/or (iii) only anonymously and in the aggregate with comparable data from other sources for reporting, planning, promotional and development purposes, so long as third parties cannot attribute the data to the other party.

(c) Personal Data: This section 8(d) reflects the parties’ agreement with respect to the terms governing the processing of Personal Data under this Terms of Service and Platform License Agreement. In all cases Nusii (“Processor”), acts as the processor of Personal Data and Company (“Controller”) remains controller of any Personal Data processed under this Agreement.

Nusii shall only Process Personal Data on behalf of and in accordance with Company’s instructions mainly through the usage by Company of the Platform and shall treat Personal Data as Confidential Information in accordance with section 7 above. Any time an individual provides Personal Information or other information about someone other than himself or herself, the individual warrants that they have that person's consent to provide such information for the purpose specified.

Company instructs Nusii to Process Personal Data for the following purposes: (i) Processing in accordance with this Agreement in order to provide Company with the ability to use the Platform; (ii) Processing to comply with other reasonable instructions provided by Company (e.g., via a support ticket or e-mail request) where such instructions are consistent with any applicable Law and the terms of the Agreement; and/or (iii) Disclosing such Personal Data to such third parties, as chosen or selected by Company through its usage and operation of the Platform, who assist and/or interact the Platform.

Personal Data that may be collected through the usage of the Platform and of the Nusii Service:

TRANSFER OF PERSONAL DATA OUTSIDE THE EUROPEAN UNION: Transfers of Personal Data to a third country or an international organization are not permitted on Company’s instructions, unless required to do so by the EU or member state law to which Nusii is subject, in such a case, Nusii shall inform Company of that legal requirement before processing (unless prohibited by law on important grounds of public interest). Company acknowledges that the Platform operates in a distributed computing platform environment involving third party infrastructure outside the European Union and the European Economic Area and thus, using the Platform necessarily involves the transfer of Personal Data to such foreign locations and technical infrastructure. Company hereby authorizes such transfers of Personal Data provided that: i) Nusii has executed Standard Contractual Clauses with such third parties, in the event they are located outside of the European Union and that they do not provide the same level of data protection than the level in force within the European Union; or ii) Where such third parties are located in the United States, such third parties represent and warrant that they comply with the EU-U.S. Privacy Shield Framework as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of personal information transferred from the European Economic Area (EEA) to the United States. When such third parties cease to maintain their participation in the EU-U.S. Privacy Shield Framework, or when at the sole discretion of Nusii, Nusii deems it appropriate, Standard Contractual Clauses shall be signed by Nusii with such third Parties.

DESCRIPTION OF THE TRANSFER; Data subjects: The personal data transferred in the standard operation of the Platform concerns Data Subjects (individuals) that receive business proposals that are generated using the Platform; Purposes of the transfer: The transfer is made in order to enable the Platform to generate, send and track such business proposals; Categories of data:

Recipients: The personal data transferred may be disclosed only to the following recipients:

Nusii shall, within its scope of responsibility, implement and maintain throughout the duration of Data Processing appropriate technical and organizational measures to adequately protect the data against unauthorized and or unlawful processing and accidental destruction or loss in accordance with and satisfying the requirements of Art. 32 EU General Data Protection Regulation, and the current state of technology. Nusii agrees and warrants that it will reasonably cooperate with Company by appropriate technical and organizational measures whenever possible, so that Company will be able to meet its obligations to notify any Supervisory Authorities of any security breaches as required by applicable Data Protection law. Furthermore, Nusii upon Company’s request, agrees to assist Company in the fulfillment of its obligation to respond to a Data Subject’s request to exercise their rights in accordance with applicable Data Protection laws. Nusii shall assist Company in ensuring compliance with the obligations regarding, if applicable, data protection impact assessment and prior consultation with the supervisory authority taking into account the nature of processing and the information available to Nusii.

Company shall, in its use and operation of the Platform, process Personal Data in accordance with any and all requirements of applicable Data Protection laws and will ensure at all times that its instructions to Nusii for the Processing of Personal Data shall comply with any applicable Data Protection laws. Personal Data obtained through the Platform may only be used by the Company in compliance with this Agreement and any applicable Data Protection laws. Nusii is not liable for any improper use of Personal Data vis-à-vis third parties. Company shall bear sole responsibility for the accuracy, quality, and legality of any further processing and/or storing of Personal Data acquired and/or accessed through the Platform.

Company warrants and undertakes that: (a) Any Personal Data uploaded to the Platform has been collected, processed and transferred in accordance with any applicable Data Protection laws. (b) It has used reasonable efforts to determine that the Company is able to satisfy its legal obligations under these clauses. Company will employ at all times adequate technical and organizational measures in order to ensure the secure storage within its systems of any Personal Data acquired through the Platform; Company agrees that such storage will at all times be conducted in a manner that will allow Company to fully comply with its obligations to respond to a Data Subject’s request to exercise their rights in accordance with applicable Data Protection law. Company shall indemnify and hold Nusii 100% harmless on a euro-per-euro basis against any claims, damages, fines, losses and/or any liabilities arising from any event related or in connection with any usage of the platform by Company in breach of any applicable personal data protection law or regulation/s.

Nusii shall not retain Personal Data beyond the time limits as reasonably necessary for the provision of services hereunder and as reasonably required by Company. Company may request Nusii’s written certification signed by an authorized representative confirming the deletion of Personal Data. If requested by Company to comply with the applicable data protection laws and/or with a request of Company ́s data providers, Nusii shall delete or destroy the Personal Data within 7 days.

In the event of termination of this Agreement for any reason or cause whatsoever, Nusii agrees and warrants that it will, at the choice of Company and subject to Nusii requirements under applicable Data Protection law: i.) permanently delete or destroy the Personal Data and the documents and information mediums containing the Personal Data as well as any manual or computerized files storing the Personal Data; or; ii.) return, at Company’s written request, within thirty (30) days, the Personal Data to Company, in a format commonly used and agreed with Company, without Nusii retaining a copy. The Parties agree that all Personal Data will be destroyed after 30 days of any cancellation. After such time it will be impossible to issue a copy of said Data.

Section 9. Representations and Warranties

Company represents and warrants to Nusii as follows:

(a) It has full right and authority to entitle it to enter into and execute this Agreement and perform all of its obligations hereunder, and shall retain that right and authority throughout the Term of this Agreement.

(b) It shall operate in accordance with all applicable laws and regulations in the Territory and the Platform shall not be used or associated with any materials in any Proposal and/or Linked Website that are obscene, defamatory, fraudulent or illegal.

(c) It is the originator and/or owner of all content placed on the Platform during the Term or it is has the authority of the owner of the content to provide each such Proposal for display on or through the Platform.

(d) The reproduction and/or publication of any proposal on the Platform will not breach any contract or infringe or violate any Intellectual Property Right, any applicable laws, rules or regulations, or any personal or proprietary right of any person including any privacy and/or personal data protection rights.

(e) Any information contained within any proposal and any Linked Website is accurate and shall not be misleading.

(f) Each proposal and any Linked Website shall not contain any viruses, bugs, worms, Trojan horses or any other computer programming routines that are intended to damage, interfere or intercept any computer system or extract any data or personal information.

(g) It shall notify the applicable Nusii contact of any errors in any proposal and any complaints or claims made in respect of any proposal as soon as the same come to its attention.

Section 10. Disclaimer; Limitation of Liability

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND EACH PARTY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. COMPANY HEREBY ACKNOWLEDGES AND AGREES THAT THE PLATFORM AND SERVICES PROVIDED BY NUSII PURSUANT TO THIS AGREEMENT ARE BEING PROVIDED TO COMPANY AND, AS APPLICABLE, ITS CLIENTS, “AS IS, WITH ALL FAULTS.” ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, ARE HEREBY EXPRESSLY DISCLAIMED BY NUSII TO THE FULLEST EXTENT PERMITTED BY SPANISH AND INTERNATIONAL LAWS. NUSII DOES NOT GUARANTEE THAT THE PLATFORM OR OTHER SERVICES OFFERED PURSUANT TO THIS AGREEMENT WILL OPERATE CONTINUOUSLY OR UNINTERRUPTED. IF AN INTERRUPTION IN THE PLATFORM OR OTHER SERVICES OFFERED HEREBY OCCURS, NUSII’S SOLE OBLIGATION SHALL BE TO RESTORE THE PLATFORM AND OR SERVICES OFFERED HEREBY FOR WHICH IT IS RESPONSIBLE AS SOON AS IS REASONABLY POSSIBLE. NUSII EXPRESSLY DISCLAIMS THE ACCURACY OR VALIDITY OF ANY USAGE STATISTICS OR LEVELS OF IMPRESSIONS FOR ANY PROPOSALS AND ANY ESTIMATED USAGE STATISTICS PROVIDED BY NUSII TO COMPANY THROUGH THE PLATFORM ARE PROVIDED AS A COURTESY ONLY AND NUSII SHALL NOT BE HELD LIABLE FOR ANY CLAIMS RELATED TO SUCH USAGE STATISTICS, HOWEVER SUPPLIED. NUSII DOES NOT WARRANT THE RESULTS OF USE OF THE NUSII SERVICES OR NUSII PLATFORM.
EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF A PARTY’S INDEMNIFICATION OBLIGATIONS, COMPANY’S BREACH OF THE LICENSES GRANTED TO COMPANY, (A) NEITHER PARTY IS LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR ANTICIPATED PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF COMPANY’S BREACH OF THE LICENSES GRANTED TO COMPANY, OR EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREIN, IN NO EVENT WILL EITHER PARTY’S LIABILITY AND DAMAGES UNDER THIS AGREEMENT EXCEED THE SUM OF THE TOTAL NET REVENUE EARNED BY NUSII UNDER THIS AGREEMENT DURING THE 6 MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM FIRST AROSE. THE PARTIES AGREE THAT THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT INCREASE THE FOREGOING LIMIT, AND THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

NEITHER PARTY WILL BE DEEMED IN DEFAULT OF THIS AGREEMENT TO THE EXTENT THAT PERFORMANCE OF ITS OBLIGATIONS (OTHER THAN PAYMENT OBLIGATIONS) OR ATTEMPTS TO CURE ANY BREACH ARE DELAYED OR PREVENTED BY REASON OF ANY FORCE MAJEURE, FIRE, NATURAL DISASTER, ACCIDENT, RIOTS, ACTS OF GOVERNMENT, ACTS OF WAR OR TERRORISM, SHORTAGE OF MATERIALS OR SUPPLIES, FAILURE OF COMMUNICATIONS OR OF SUPPLIERS OF GOODS OR SERVES, OR ANY OTHER CAUSE BEYOND THE REASONABLE CONTROL OF SUCH PARTY.

Section 11. Indemnification

(a) Nusii agrees to indemnify, defend and hold harmless Company, its officers, directors, employees, subsidiaries, agents, successors and assigns from and against any third-party claims, suits, proceedings, demands or actions and any damages, losses, costs, expenses or settlement fees incurred in connection therewith (including reasonable attorney’s fees and costs) (collectively, hereinafter, “Losses”) arising out of or relating to (i) any breach or alleged breach by Nusii of its representations, warranties, or covenants provided in this Agreement; (ii) Nusii’s breach of its obligation as Data Processor or (ii) Nusii’s bad faith, gross negligence or willful misconduct.

(b) Company agrees to indemnify, defend and hold harmless Nusii, its officers, directors, employees, subsidiaries, agents, successors and assigns from and against any third-party claims, suits, proceedings, demands or actions and any Losses incurred in connection therewith arising out of or relating to (i) any breach or alleged breach by Company of its representations, warranties, or covenants provided in this Agreement; (ii) any aspect related and/or derived from the Proposals and/or Linked Websites; (iii) Company’s use of the Platform or any portion of the services provided in this Agreement in breach of this Agreement; (iv) the Company Marks; or (v) Company’s bad faith, gross negligence or willful misconduct.
Failure from Company to comply with any payment obligation and/or payment schedule to Nusii derived from this Agreement will automatically result in waiver by Company from any right to indemnification from Nusii in favour of Company, regardless of its origin or cause.

(c) An indemnitee under this Section 11 (an “Indemnitee”) must (i) promptly notify the indemnitor (an “Indemnitor”) in writing regarding any facts that may give rise to a claim for indemnification under this Agreement (provided that any delay in notification will not relieve the Indemnitor of its obligations hereunder except to the extent that the delay impairs its ability to defend); (ii) provide Indemnitor with reasonable information, assistance and cooperation in defending the lawsuit or proceeding (at Indemnitor’s expense, to the extent of any out-of-pocket expenses); and (iii) give the Indemnitor full control and sole authority over the defense and settlement of such claim, subject to Indemnitee’s approval of any such settlement, which approval will not be unreasonably withheld or delayed.

Section 12. Term and Termination

(a) This Agreement will commence on the Effective Date and continue in full force and effect for a period of One (1) year, and will automatically renew for additional One (1) year periods thereafter on the date it would otherwise expire unless either Party notifies the other Party in writing of its intent not to renew. This can be done by Company.at any time, in the form of an Account Cancellation

(b) Either Party may terminate this Agreement at any time if the other Party (i) materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the breach from the non-breaching Party, (ii) ceases to carry on its business or threatens to cease carrying on its business, or (iii) initiates or consents to proceedings relating to it, under any bankruptcy, reorganization, insolvency, moratorium, intervention law or law with similar effect, or under any law for the relief of, or relating to, debtors, or makes or enters into a conveyance, assignment, arrangement, or composition with or for the benefit of its creditors or appoints or applies for the appointment of an administrator, receiver, trustee, intervener, or assignee for the benefit of creditors. Upon termination or expiration of this Agreement for any reason, (a) Company will promptly (not to exceed 5 business days) pay any amounts accruing to Nusii prior to such termination or expiration of the Agreement; and (b) both Parties will destroy or return, as requested by the other Party, all Confidential Information of the other Party and copies thereof.

(c) This Section 12 is not intended to limit any remedies that may be available to a Party for a termination of this Agreement by the other Party. Sections 3 and 5-14 will survive any expiration or earlier termination of this Agreement to the fullest extent appropriate to enforce the various rights and duties of the Parties applicable during the Term. Nothing in this Section 12 will limit either Party’s right to seek and obtain any other remedies available to such Party under this Agreement, at law, or in equity, including Nusii’s right to recover in full any fees or payments due and owing it under this Agreement.

Section 13. Notices

All notices or any other kind of formal communication in connection with this Agreement must be in Spanish or English, must be in writing and must be made through any means that provide absolute certainty about the date the communication was made, its contents and whether it was received by the other Party.

Any notice or formal communication made by e-mail will be deemed to have been validly made and validly received, if directly responded by the receiving party.

Section 14. Miscellaneous

(a) The provisions of this Agreement constitute the entire agreement between the Parties with respect to the subject matter hereof, and this Agreement supersedes all prior agreements or representations, oral or written, regarding such subject matter.

(b) A waiver of a Party’s breach of any provision of this Agreement will not operate as or be deemed to be a waiver of that Party’s prior, concurrent or subsequent breach of that or any other provision of this Agreement.

(c) The relationship of Nusii and Company established by this Agreement is that of independent contractors, and nothing contained in this Agreement will create or be construed to create any partnership, joint venture, agency, franchise, sales representative, employment or fiduciary relationship between the parties.

(d) If the application of any provision of this Agreement to any particular facts or circumstances will be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity of other provisions of this Agreement will not in any way be affected thereby, and (b) such provision will be enforced to the maximum extent possible so as to effect the intent of the Parties and reformed without further action by the Parties to the extent necessary to make such provision valid and enforceable.

(e) Either Party hereto shall have the right to assign or otherwise transfer this Agreement or any of its rights or obligations hereunder to any affiliated, or associated company or to a purchaser of all or substantially all of its assets, provided the assigning Party shall remain primarily liable for the performance of its obligations under this Agreement. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.

(f) This Agreement may not be amended, supplemented or modified except by an agreement in writing signed by each of the Parties.

(g) This Agreement shall be governed by, and construed in accordance with, the laws of Spain. With express waiver of any forum to which any of the Parties may be entitled, the Parties agree that all disputes arising out of or in connection with this Agreement shall be finally settled by arbitration in Law (“Arbitraje de Derecho”), under the Rules of Arbitration of Madrid’s Chamber of Commerce Court of Arbitration (“Corte de Arbitraje de la Cámara de Comercio de Madrid”), by one (1) sole arbitrator appointed in accordance with such Rules. The seat of the arbitration will be the city of Madrid, in Spain. The language of arbitration shall be English. Arbitrator must be admitted to practice law in Spain. Any award issued as a result of such arbitration shall be final and binding between the Parties, and shall be enforceable by any court having jurisdiction over the Party against whom enforcement is sought. The fees and expenses of such arbitration (including the cost of administration of arbitration, fees and expenses of arbitrators or any experts assisting the arbitrators, and reasonable fees and expenses of attorneys, interpreters and other experts assisting the Parties) or any action to enforce an arbitration award shall be paid by the Party that does not prevail in such arbitration.