Terms & Conditions

TERMS AND CONDITIONSSOFTWARE APPLIANCE  DRLM 

By accepting these terms and conditions (the “T&C“), you (the “Client“) request BRAIN UPDATERS, S.L., with registered office at C/ Major, 120, 2n 2a 17190 Salt (Girona) and provided with N.I.F number B-55.216.519 (“BRAIN UPDATERS S.L.“) the contracting of the license of the computer application or software appliance ‘Disaster Recovery Linux Manager’ (the “DRLM Software“) and additional services (the “Services“) and guarantees to have sufficient powers to legally bind your company or organization.

1. DEFINITIONS

Customer: means the entity that get licenses for the DRLM Software and Services under the T&Cs.

Effective Date: means the date on which the Client accepts the T&C and from which its legal effects are deployed.

Force Majeure: means, among others, (i) fires; (ii) earthquakes and other natural disasters; (iii) strikes; (iv) war conflicts; (v) acts of terrorism; (vi) pandemics and epidemics; and any other extraordinary event comparable to the above.

Confidential Information: means all documentation and information of an economic, financial, technical, commercial, strategic or other nature of BRAIN UPDATERS, provided or accessed by the Client in any form, oral, written or in any medium and at any time, whether prior to or subsequent to the acceptance of the T&Cs.

Purchase Order: means the specific order for the DRLM Software license and the particular service(s) requested by Customer from BRAIN UPDATERS. 

Services: means the support services (basic, standard, advanced, professional, enterprise) of the DRLM Software and the subscriptions (standard and managed) detailed in the url http://drlm.io/support-services/#subscriptions. 

DRLM Software: means the software application developed by BRAIN UPDATERS and marketed under the brand name “DRLM” for Linux systems. 

“Free Software” means version 3 (and, where applicable, successive versions) of the GNU license detailed at https://www.gnu.org/licenses/gpl-3.0.txt.

2. OBJECT

2.1. Use of DRLM Software

As of the Effective Date, BRAIN UPDATERS agrees to provide the Customer with the use of the DRLM Software, and to provide the Customer with the contracted Services, in accordance with the T&Cs and the Purchase Order.

The Purchase Order details the initial number of DRLM Software licenses contracted by the Customer and Services requested. In the event that the Customer wishes to purchase more licenses, it must be requested by email tosales@drlm.io and through the web https://drlm.io .for Customers who are registered users

Customer shall install the DRLM Software on its own equipment or devices.

During the term of the T&C, BRAIN UPDATERS grants the Customer a license to use the DRLM Software, on a non-exclusive and non-transferable basis, without the right of transfer to third parties and for the territorial scope necessary for its use.

2.2. Additional services

Likewise, BRAIN UPDATERS is obliged to provide to the Customer, who accepts, the Services detailed in the Purchase Order in accordance with the provisions of the respective annexes.

3. CUSTOMER OBLIGATIONS

3.1. By virtue of the T&C, the Client undertakes to:

  1. Provide BRAIN UPDATERS with the requested information to process and manage the requested Services.
  2. Use the DRLM Software in accordance with the current regulations, the T&C and the principles and requirements of Free Software.
  3. Implement the versions and/or updates of the DRLM Software in the terms and conditions indicated by BRAIN UPDATERS.
  4. Allow BRAIN UPDATERS and / or persons or entities contracted for this purpose, to access their systems, equipment and devices to configure or install the DRLM Software and to review or audit its proper use and, where appropriate, to bear the cost of the audit when it is the result of a breach of contract.
  5. Ensure the suitability, compatibility and security of systems, servers, equipment, devices and/or terminals that have access to the DRLM Software.
  6. Ensure that your employees and collaborators authorized to use the DRLM Software are committed to respecting the T&C.
  7. Report to BRAIN UPDATERS any infringement or misuse of the DRLM Software by third parties.

In the event of serious breach by the Customer of the T&C, BRAIN UPDATERS will suspend or discontinue, without notice, access to the DRLM Software and the provision of the Services, and this without prejudice to the right to claim damages from the Customer that corresponds to BRAIN UPDATERS. 

4. DURATION

The T&Cs shall remain in force in accordance with the duration foreseen in the Purchase Order, being tacitly extended for additional identical periods. 

5. PRICE

5.1. Amount and form of payment

The Customer shall pay BRAIN UPDATERS the full amount of the price and, where appropriate, the costs provided for in the Purchase Order and in the corresponding invoices issued. These amounts shall include Value Added Tax (VAT) at the current legal rate.

The payment of each invoice must be made through one of the payment methods provided by BRAIN UPDATERS in the contracting procedure. 

5.2. Variations and updating

The amount of the price may be reviewed and updated annually according to price changes determined by BRAIN UPDATERS, which may take into account changes in the General Consumer Price Index (CPI), or index, if any, replace it. Once this change in prices is agreed, BRAIN UPDATERS will notify the Customer

5.3. Interest on late payment

The non-payment of invoices issued by BRAIN UPDATERS, will involve interest for each day of delay at the interest rate published by the Bank of Spain. Also, BRAIN UPDATERS may temporarily suspend the license of DRLM Software and the provision of Services until the Customer does not pay all outstanding amounts.

6. RESPONSIBILITY

6.1. BRAIN UPDATERS shall not be liable, under any circumstances, in any of the following cases:

  1. For any incident, suspension, interruption and / or failure of the Customer’s systems and / or the Internet that prevent the availability and / or continuity of access and / or use of DRLM Software and, where appropriate, the provision of the Services.
  2. For any loss and/or damage, loss of profit, financial loss, loss of data or operating time, use of equipment or process, suffered directly or indirectly by the Customer for reasons not attributable to BRAIN UPDATERS, in particular, by computer attacks, entry of viruses and/or intruders in the systems and/or the hijacking of their data by third parties.
  3. For failures or loss of information that, directly or indirectly, are derived: (i) from the Client’s failure to use the DRLM Software; (ii) from errors unrelated to the activity carried out by BRAIN UPDATERS. 
  4. Errors that may arise as a result of the transfer of data and the Customer’s equipment and systems. 
  5. For the use by the Customer of other software or hardware that is not compatible with the DRLM Software or for improper or unauthorized tampering with the DRLM Software.
  6. For any infringement of regulations, third party rights or T&C incurred by the Customer and/or third parties in the access and/or use of the DRLM Software.
  7. For content hosted and/or transmitted by the Customer on the DRLM Software.
  8. For the Customer’s use of information obtained through the DRLM Software. 
  9. For non-compliance with any of the obligations derived from the T&C due to Force Majeure. 

6.2. Customer agrees that the DRLM Software may suffer temporary interruptions resulting from the performance of any maintenance service, update and / or improvement by BRAIN UPDATERS. In any case, BRAIN UPDATERS will communicate to the Customer about the planned interruptions of the Service, as well as its estimated duration.

6.3. The Customer shall indemnify and hold harmless BRAIN UPDATERS for any action, judicial or extrajudicial, brought by third parties as a result of the use of the DRLM Software by the Customer, its employees or collaborators and, in particular, the misuse of the DRLM Software, as well as any own or third party expenses, including legal defense costs that may be incurred by the misuse of the DRLM Software by the Customer and / or its employees.

6.4. In any case, the liability of BRAIN UPDATERS for fault or negligence shall not exceed, in any case, the amounts received by BRAIN UPDATERS by the Customer during the last year or, where appropriate, the proportional part of the time actually elapsed.

7. TERMINATION

7.1. The contracted Services, as well as access to the DRLM Software, will be terminated early in the following cases: 

  1. By express agreement of the Parties.
  2. At the will of each Party provided that ninety (90) days written notice is given to the other Party. 
  3. Where a Party is in breach of any provision of the T&Cs and the breach, if capable of being cured, is not cured within ten (10) calendar days after the non-breaching Party notifies the breaching Party of such breach.

8. EFFECTS OF TERMINATION

8.1. Upon termination of the DRLM Software license and the Services:

  1. The Customer shall pay BRAIN UPDATERS the amounts that have accrued and are outstanding up to the date of termination of the Contract.
  2. The Client shall destroy any Confidential Information in its possession or under its control, together with all copies or versions derived therefrom in any form, medium or support, unless it is necessary to preserve it in accordance with the regulations in force, in particular, regarding the protection of personal data.

9. CONFIDENTIALITY 

9.1. Obligation

THE Client acknowledges that the Confidential Information is the exclusive property of BRAIN UPDATERS or its licensors and is considered a professional secret; consequently, in relation to the same, it undertakes to:

  1. Use it exclusively in accordance with the provisions of the T&C and not to disclose it, directly or indirectly, to any third party without the express prior written consent of BRAIN UPDATERS.
  2. Have due diligence in order to implement the appropriate mechanisms to protect the Confidential Information from any use or disclosure and, in particular, any unauthorized use or disclosure.
  3. Adopt the measures required to limit access to Confidential Information to those employees who are subject to confidentiality obligations and those who require such access to use the DRLM Software in accordance with the provisions of the T&Cs.
  4. To assume liability and indemnify the owner of the information for any loss, damage and/or cost or expense, including the costs of any legal defense, incurred or to be incurred by the party owning the information as a result of any fraudulent and/or impermissible use of the Confidential Information by the other party, its employees or third parties.

9.2. It shall not be considered as Confidential Information: 

  1. That which has been published prior to the Effective Date or which becomes public, unless it becomes public due to a breach of the T&Cs attributable to the Client or its employees.
  2. Information that was available to the Client prior to BRAIN UPDATERS providing it, or that has become independently known to the Client, provided that it is not the result of a breach of the T&Cs.
  3. That which the Client obtains from third parties without restrictions or implies breach of the T&Cs.
  4. That which is independently developed by the Client without being in breach of the T&Cs.

9.3. Exceptions to the obligation of secrecy of Confidential Information:

In the event that, by virtue of legal mandate, by judicial resolution or in accordance with administrative or other regulations, the Client (or its employees) is required to disclose all or part of the Confidential Information; this circumstance must be immediately communicated in writing to BRAIN UPDATERS so that the appropriate means can be sought to prevent and/or protect to the maximum extent possible such disclosure. 

In the event that, in order to obtain essential advice in relation to the T&Cs, the Client needs to disclose all or part of the Confidential Information to external advisors, in which case, this circumstance must be communicated to BRAIN UPDATERS and all means within its reach must be used to ensure that the advisors, with access to the Confidential Information, comply with the terms of the confidentiality commitments assumed in the T&Cs. 

The obligation of confidentiality provided for in this clause shall continue to apply after the termination of the contractual relationship.

10. INTELLECTUAL PROPERTY 

During the term of the T&C, BRAIN UPDATERS grants the Customer a license to access and use the DRLM Software, on a non-exclusive and non-transferable basis, without the right of transfer to third parties and for the territorial scope necessary for its use.

Copyright © BRAIN UPDATERS, S.L. 2016

The DRLM Software includes a portion developed as Free Software and, accordingly, the Customer may redistribute it and/or modify it under the terms of the GNU General Public License as published by the Free Software Foundation at URL https://www.gnu.org/licenses/gpl-3.0.txt, whether version 3 or any later version. 

The DRLM Software is distributed in the hope that it will be useful but without warranty of any kind, including without implied warranty of merchantability or warranty of fitness for a particular purpose. For details, you may obtain a copy of the General Public License at http://www.gnu.org/licenses/ or its successor URL.

11. PERSONAL INFORMATION 

11.1. The Customer’s personal data will be processed by BRAIN UPDATERS, in its capacity as Data Controller, for the purpose of executing the Contract. The legitimacy of the treatment is the execution of the contractual relationship and, therefore, it is necessary that the Customer provides BRAIN UPDATERS the data that are required because, otherwise, could mean that BRAIN UPDATERS can not perform the Contract. The data will be kept for the period provided by current regulations (especially in civil, accounting and tax matters) and may be communicated to financial institutions for the collection of the price, to auditing companies for the review of financial and accounting statements and to the Public Administration in the cases provided by law. The Client will be able to exercise the rights of access, rectification, suppression, opposition, limitation and portability by sending an e-mail to lopd@brainupdaters.net. In the event that you would like more information regarding any of these rights, you may contact the Spanish Data Protection Agency.

11.2. The Customer agrees and undertakes to hold harmless BRAIN UPDATERS against any claim that may be brought (including any disciplinary proceedings that are initiated by the Spanish Data Protection Agency or institution that replaces it) by the Customer’s failure to comply with current regulations on protection of personal data.

11.3. Also, because BRAIN UPDATERS may have access to or process personal data under the responsibility of the Client, BRAIN UPDATERS, in its capacity as Data Processor, shall be obliged to the following:

a) Use the personal data being processed, or those collected by its inclusion, only to carry out the Services and, under no circumstances, for its own purposes.

b) Process personal data in accordance with the Customer’s instructions. If BRAIN UPDATERS considers that any of the instructions violate the General Data Protection Regulation (GDPR) or any other data protection provisions of the EU or Member States, OBLIKU will immediately inform the Customer.

c) Keep a record of all categories of processing activities (RAT) carried out on behalf of the Client.

d) Not to communicate the data to third parties, except with the express authorization of the Client, in the legally admissible cases. BRAIN UPDATERS may communicate the data to other processors of the Client in accordance with its instructions. If BRAIN UPDATERS must transfer personal data to a third country or an international organization, under EU or Member State law applicable to it, it will inform the Client of this legal requirement in advance, unless the law prohibits it for important reasons of public interest.

e) Subcontract the following treatments: management services to GRUP TRES ASSESSORS 2021, S.L. and community management for sending newsletters to Ana Belén Mosquero Martín. To subcontract to other entities and / or professionals, BRAIN UPDATERS must notify the Client, and may be carried out if the Client does not express its opposition within seven (7) calendar days.

The subcontractor, who will also have the status of data processor, is also obliged to comply with the obligations established for the data processor and the instructions issued by the Client. It is up to BRAIN UPDATERS to regulate the new relationship so that the new processor is subject to the same conditions and the same formal requirements, in relation to the proper processing of personal data and guarantee the rights of the persons concerned. In the event of non-compliance on the part of the sub-processor, BRAIN UPDATERS will remain fully liable to the Client in reference to the fulfillment of the obligations.

f) Maintain the duty of secrecy with respect to the personal data to which it has had access by virtue of the contractual relationship, even after its termination.

g) Ensure that persons authorized to process personal data expressly undertake to respect confidentiality and comply with the corresponding security measures.

h) Notify the Client without undue delay and, in any case, before the maximum period of forty-eight (48) hours of any breach of security of the personal data in its care of which it becomes aware, together with all relevant information for the documentation communication of the incident.

i) To make available to the Client all information necessary to demonstrate compliance with its obligations, as well as for the performance of audits or inspections carried out by the Client or an auditor authorized by it.

j) Implement the necessary security measures to ensure the security of personal data in accordance with the Risk Assessment it has carried out.

k) After termination of the contractual relationship, destroy the Customer’s personal data. Notwithstanding the foregoing, OBLIKU may keep a copy, with the data duly blocked, for as long as liabilities may arise from the performance of the Services.

12. MISCELLANEOUS

12.1. Commercial relationship

The Parties are autonomous and independent entities and, consequently, the acceptance of the T&Cs shall not imply that either Party is considered an agent or employee of the other Party.  

12.2. Integrity

The T&C and the Annexes represent the only valid agreement between the Parties in relation to the subject matter hereof and supersede any other agreements previously reached by the Parties, whether verbal and/or written.

In case of contradiction between the provisions of the T&C and the Annexes, the provisions of the Annexes shall prevail.

12.3. Nullity

If any of the clauses of the T&Cs is declared, totally or partially, null or ineffective, such nullity or ineffectiveness shall only affect such provision or the part of the same that is null or ineffective, and shall remain in force in all other respects, and such provision or the part of the same that is affected shall be deemed not to be in force. To such effects, the T&Cs shall only cease to be valid only with respect to the null or ineffective provision, and no other part or provision of the same shall be annulled, invalidated, impaired or affected by such nullity or ineffectiveness, unless it would affect the T&Cs in an integral manner because it is essential.

12.4. Notifications

All notifications to be made by the Customer to BRAIN UPDATERS in execution of the Contract shall be sent through the ticket system provided in the DRLM Software.

12.5 Prevalence

The T&Cs have been drafted in Spanish and English. In case of contradiction between these versions, the Spanish version shall prevail.

13. APPLICABLE LAW AND COMPETENT JURISDICTION

13.1. The T&C shall be governed by and construed in accordance with the laws in force in Spain. 

13.2. For any controversy that may arise in relation to the interpretation and/or execution of the T&C, the parties, expressly waiving any other jurisdiction that may correspond to them, submit to the jurisdiction of the Courts and Tribunals of the city of Girona (Spain).