AURORA CLOUD

END USER LICENSE AGREEMENT

 

This document constitutes a valid and effective Agreement between INVELON TECHNOLOGIES, S.L., owner of the Platform https://auroracloud.app/ and https://auroracloud.tech/, with address at Calle Tèrmens 3, Polígono Activa Park, 25190, Lleida (Spain) and Tax Identification Number B25817693 (hereinafter "INVELON") and the person or entity licensee (the "Customer") of the Aurora Cloud services (the "Service").

The Customer is only entitled to use the Service if the Customer accepts and complies with the terms of this Agreement.

 

1. Definitions

Service(s): means the SaaS ("Software as a Service") software programs and applications, developed and owned by INVELON, with the functionalities described in Schedule 1 for Customer's use of the Technology.

Product(s): means any product developed under this Agreement that (i) combines any part of the Technology with any other software or content, regardless of how much or how little of the Technology is used; or (ii) relies on or requires any part of the Technology to be executed. 

Exempt Product(s): means any Product that (i) is not sold and is not otherwise used to generate revenue directly; (ii) is completely linear / non-interactive; or (iii) does not include any part of the Software or any Content distributed in source format and that does not require any part of the Software or derivative work of the Software to be executed. 

Content(s): means any code, works, or other content that INVELON makes available to Licensee as part of the Service under this Agreement.

Software: means the Aurora Cloud source code or object code, including future versions or any object code compiled from such Aurora Cloud source code.  

Third Party Software: includes third party software components included in the Software.

Technology: means any part or all of the Software and Content, including as modified by Licensee under this Agreement.

End Users: person(s) and/or entity(ies) who have licensed the exempt Products developed by Customer through access to the Service and use of the Technology. 

 

2. Granting of license and conditions

2.1. Subject to compliance with the terms of this Agreement, INVELON grants to Customer a worldwide, non-transferable, non-sublicensable, non-exclusive right to access the Service and use the Technology, solely for (i) Customer's own internal use, without redistribution of Products; (ii) free projects or demonstrations of Product; or (iii) use, reproduce, publicly display and publicly perform the Product, with express prohibition on redistribution of the Product by Customer to third parties, except for exempt Products, in accordance with the terms and conditions set forth in this Agreement (the "License"). For the avoidance of doubt, the License grants Customers the right to use, reproduce, publicly display and publicly perform any Product, without redistribution thereof, and may only redistribute exempt Products in object form to End Users. INVELON reserves all rights not expressly granted to Customer under the License.

2.2. In the event that the Customer intends to redistribute Products, it shall contact INVELON at the following e-mail address [email protected] prior to any redistribution of Products to End Users. 

2.2.1. Such notification shall include, at a minimum, the Product name, distribution format, unique Product identification (where applicable), Product selling price and distribution channels. 

2.2.2. Upon generating direct revenue from a Product or through redistribution to End Users, the Customer agrees that it shall pay INVELON an additional royalty equal to 5% of all worldwide gross revenue actually attributable to each Product, regardless of whether the revenue is received by the Customer or by any End User of the Product.

2.2.3. Royalties paid by Customer in an advance payment of revenue for a Product that is recoverable by the payor may be credited against future royalty payments incurred by Customer under this Agreement for that Product.

2.2.4. Royalties must be reported and paid per Product. Within 45 days after the end of each quarter in which a Product earns revenue, Customer must pay INVELON the total amount of royalties due for that quarter and submit to INVELON a royalty report by Product.

2.2.5. In these cases, the Customer accepts INVELON's right to request the commercial documentation needed to find out the volume of income obtained by the Customer with the products and undertakes to provide it to INVELON without undue delay and, in any case, no later than one month after it is requested to do so. INVELON may also carry out audits every six months, either by itself or through an independent third party agreed between the parties, under strict terms of confidentiality, in order to verify the income obtained from the sale of Products. The audit costs will be borne by INVELON, unless the result confirms a difference of more than 10% with respect to the gross income declared by the Customer.

2.3. As a general condition of this Agreement, the Customer may not: (i) license, sublicense, sell, resell, transfer, assign, distribute or make available to third parties, or commercially exploit with third parties the Service or Products obtained by use of the Service, in whole or in part, except for exempt Products; (ii) modify or make derivative works or works based on the Service; (iii) combine, distribute or use the Technology with any code or other content that is covered by a license that directly or indirectly requires all or part of the licensed Technology to be governed by terms other than those of this Agreement (i. e. open-source licenses with copyleft effects; (iv) create Internet "links" to the Service or "mask" or "mirror" the Service on or through any server or wireless or Internet-based device; or (v) reverse engineer or access the Service, or modify the software and technology platform underlying the Service, to (a) create a competing product, software or service, (b) create a software, product or service using ideas, features, functions or graphics similar to those of the Service, or (c) copy any ideas, features, functions or graphics of the software, product or Service.

2.4. In addition, the Customer shall refrain, by itself and/or through its authorized internal users, from doing any of the following through the Service: (i) sending or storing material containing software with viruses, worms, Trojan horses or harmful computer code, files, scripts or programs; (ii) interfering with or affecting the integrity or performance of the Service or the data contained therein; or (iii) attempting to gain unauthorized access to the Service or systems or networks related to the Service.

 

3. Access to the Services by the Customer

3.1. Any access to the Services requires the use of credentials (username and password) associated with the Customer's account and authorized personnel for the use of the Customer's account, as configured from the Service itself. The access credentials are for personal and exclusive use, not transferable and must be treated confidentially, and may not be shared or used by more than one user, without prejudice to a timely reassignment of the Customer account to a new user to replace the previous one, whose access will be disabled from such reassignment of the Customer account. Any knowledge or suspicion by the Customer of unauthorized use of its credentials and/or Customer account or any other breach of security must be reported immediately to INVELON.

3.2. The Customer is responsible for any and all activities conducted on its Customer account, and must comply with all applicable local, state, national or international laws, treaties and regulations related to the use of the Service, including but not limited to uses related to data privacy, international communications and the transmission of technical or personal data. The Customer is solely responsible for the accuracy, quality, completeness, legality, reliability, suitability and intellectual property rights in the use of all data and content uploaded or transmitted by the Customer and/or its authorized personnel to the Service, exempting INVELON and its suppliers from any liability to third parties for their input, use or error in use arising during their processing on the Services.

3.3. The Customer shall: (i) maintain complete, accurate and up-to-date information about the Customer's account and the Customer's personnel authorized to access the Service at all times; (ii) maintain the confidentiality of access credentials and prevent any unauthorized access to and use of the Services by INVELON; (iii) use its best efforts to stop any unauthorized copying, distribution or use of the Service that the Customer or its authorized personnel know or suspect and promptly notify INVELON; and (iv) not attempt to access and use the Services on behalf of a third party, or provide false information or identity for purposes abusive of the terms of the License. 

3.4. Notwithstanding the features and functionalities of the Service set forth in Exhibit 1, the Customer agrees that the Services are not contingent upon the delivery of any future functionality or features. Customer acknowledges that data transmission over the Internet is susceptible to overloads, malfunctions, redirections or security breaches as a result of the circulation of networks of varying characteristics and capabilities. The Customer agrees that use of the Services is at the Customer's sole risk and sole responsibility.

 

4. Pricing and Payment

4.1. The applicable fees for access to the Services and use of the Licensed Technology (the "Fees") will be those published at [https://www.auroracloud.tech/] plus applicable taxes or, if applicable, the Fees set forth in the corresponding quotation accepted by the Customer and INVELON and/or INVELON's authorized distributor that will form an integral part of this Agreement. As a material term of the Agreement, the Customer agrees to pay monthly in advance all Fees and recurring charges for its use of the Services, including any applicable VAT or sales tax.

4.2. Any additional services and costs incurred as a result of the provision of the Service, such as travel and/or delivery charges, will be included in the relevant invoice. The Services may be billed directly by INVELON and/or by the authorized INVELON distributor with whom the Customer has contracted the Services, as applicable. In no event shall the Fees be cancelable or refundable. 

4.3. The Customer will proceed to pay the invoiced and accrued amounts through the SEPA B2B online direct debit system with its distributor.

4.4. Invoices due and unpaid are subject to interest at 7% per month in arrears, or at the maximum interest rate permitted by law, whichever is lower.

4.5. The right to use the Service may be suspended or terminated if late payment of Fees occurs or cannot be made for any reason. In the event of termination, Customer shall pay all outstanding Fees on its account and any accrued interest.

 

5. Term and Termination

5.1. The License is granted for a duration of one (1) month, starting from the Customer's first registration and access to the Services, and is automatically renewed for successive periods of equal duration. 

5.2. The Customer may terminate the Agreement by giving INVELON at least 1 month's notice prior to the invoice date of the next period.

5.3. This Agreement may be terminated immediately in the event of a material breach of this Agreement by the Customer (including, without limitation, non-payment of applicable and outstanding Fees).

5.4. In the event of termination of the Agreement for any reason, all rights of the Customer to access or use the Service and Customer Data shall terminate immediately and the Customer shall delete and destroy all copies of the Technology in its possession, and INVELON may require the Customer to issue a certification that such deletion and destruction has taken place. INVELON shall not be obligated to preserve or send to the Customer any information and/or files contained in the Services.

5.5. Termination of this Agreement does not imply any waiver of the collection of any outstanding and unpaid Fees by the Customer. INVELON shall maintain all remedies provided by law upon termination of the Agreement.

5.6. Clauses 5 through 11 shall survive termination of this Agreement.

 

6. Privacy and Data Protection

6.1. In accordance with the General Data Protection Regulation 679/2016, and the Organic Law on Data Protection 3/2018, the processing of the personal data of the Customer's commercial and technical contact persons (name, surname, position, email address and telephone), as well as the identification and contact details of the Customer's authorized users, is necessary for the performance of this Agreement for and the provision of the Service. This personal data will not be shared with any third party except with INVELON's service providers or its authorized INVELON reseller who has distributed this License to the Customer (with access to data on consumption and use of the Services and authorized users), through whom it has obtained this License, with whom it has contracts for data processing in accordance with applicable regulations. INVELON will retain the aforementioned data for the duration of the Agreement and blocked and stored under lock and key, for 6 years from its termination, for tax, administrative and legal purposes.

6.2. The Customer undertakes to inform the aforementioned persons of the possibility of exercising their rights of access, rectification, suppression and opposition, limitation and restriction of processing under the terms established by current legislation, by writing to INVELON at the e-mail address [email protected]. They may also, if they so wish, file a complaint, if appropriate, with the Spanish Data Protection Authority. The Customer declares that the data of the aforementioned persons are correct and up to date and undertakes to communicate the provisions of this clause to the aforementioned persons. 

6.3. To access and use the Technology, the Customer must register for the Service by providing his/her data as indicated on the various data collection forms. The INVELON authorized reseller with whom, if any, the Customer has contracted the Services will have access to the Customer's account data and its authorized personnel and other information about the use of the Technology through the Aurora Cloud Service in order to perform its functions and fulfill its obligations as a reseller with respect to INVELON and with respect to the Customer. 

6.4. The Customer expressly acknowledges and consents that its registration data, accounts of the Customer and its authorized personnel for the use of the Service reside on the servers of HEROKU, AMAZON Web Services and Firebase, exempting INVELON from any liability for eventual failures and/or attacks by third parties that may occur on such servers. 

6.5. INVELON informs the Customer that the Technology employs technology to collect technical information for the purpose of improving and facilitating the Services to the Customer, and to prevent unlicensed or illegal use of the Technology or the Products. The information collected may not include, in any case, personal data of the Customer. The Customer agrees that INVELON and the Service Provider, if applicable, will have access to the Customer's data relating to the use and consumption of the Solution (CAD models in any format, guest user emails, images of CAD models, daily accesses to the Solution, pages visited from the Solution and access to the Customer's project content), as well as the Customer's authorized user data (full name and email address). Access to and use of this information shall be subject to the confidentiality conditions set forth in clause 9. 

 

7. Limitation of Liability and Product Warranties

7.1. INVELON's Products are provided "as is" and "as available", "with all faults" and without warranty of any kind. INVELON, its licensors and its affiliates disclaim all warranties, conditions, duties and representations (express, implied, oral and written) with respect to the Products, including, without limitation, all express, implied and statutory warranties and conditions of any kind, such as title, non-interference with your enjoyment, authority, non-infringement, merchantability, fitness for any purpose (whether or not INVELON knows or has reason to know of such circumstances), system integration, accuracy or completeness, results, reasonable care, professional effort, lack of negligence and lack of viruses, whether alleged to arise by operation of law, by reason of custom or usage in the trade, or by course of dealing. Without limiting the generality of the foregoing, INVELON, its licensors and its affiliates do not warrant continuous, error-free, virus-free or secure operation of or access to the Products. This paragraph shall apply to the maximum extent permitted by applicable law.

7.2. To the maximum extent permitted by applicable law, neither INVELON, its licensors, nor its affiliates, nor any of INVELON's service providers, will be liable in any way for any loss or damage of any kind resulting from the use or inability to use the Products or otherwise in connection with this Agreement, including, without limitation, loss, work stoppage, computer failure or malfunction, or any other commercial loss or damage. In no event will INVELON, its licensors, its affiliates or their affiliates, or any of INVELON's service providers be liable for any lost profits or indirect, incidental, consequential, special, punitive, or exemplary damages, or any other damages whatsoever arising from or in connection with this Agreement or the Products, or the delay or inability to use or the lack of functionality of the Products, even in the event of INVELON's or its Affiliates' fault, tort (including negligence), strict liability, indemnity, product liability, breach of contract, breach of warranty or otherwise, and even if INVELON, its suppliers or its Affiliates have been advised of the possibility of such damages. These limitations and exclusions with respect to damages apply even if any remedy does not provide adequate compensation.

7.3. Since some states or jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, in such states or jurisdictions, the above limitations of liability shall apply only to the extent permitted by law.

7.4. INVELON reserves the right to temporarily suspend the Services for maintenance needs, upon notice to the Distributor and customers, or when a competent body, in the exercise of legally attributed functions, orders the suspension of the provision of the Services.

7.5. The following are excluded from the contracted services:

7.5.1. The adaptation of the Service or the Technology to the special circumstances of the Customer or to the needs arising with the use.

7.5.2. The support services necessary for the connection of the hardware to the Service, as well as the travel expenses of the technicians, if such travel is agreed or is a consequence for the provision of the Service.

7.5.3. The necessary tasks to restore the previous situation resulting from incorrect operations by the Customer or third parties, or force majeure, which cause loss of information, destruction or disorganization of files, restoration of backups, etc..

7.5.4. The correction of anomalies attributable to the Customer's systems, breakdowns of the main network or variations of the same or of the communications provider and which, therefore, have no relation to the Technology.

7.5.5. The tasks necessary to perform and/or restore backup copies in accordance with security policies different from those provided by INVELON.

 

8. Indemnification

8.1. Each Party agrees to indemnify and hold the other harmless against any claims, costs, damages, losses, liabilities and fees (including legal costs) arising out of: (i) a claim that the use of the Service, respectively, infringes rights of third parties or has caused damage to third parties; (ii) a claim that, if true, would constitute a breach of a Party's representations or obligations; or (iii) a claim arising from a Party's breach of this Agreement; provided that the indemnified Party (a) promptly notifies the other Party in writing of the claim; (b) grants the other Party sole control over the defense and settlement of the claim (provided that it does not settle or defend any claim unless it unconditionally releases the indemnified Party from all liability and such settlement does not affect it or the Service); (c) gives the other Party all reasonable information and assistance; and (d) has not already settled such claim.

 

9. Confidentiality

9.1. Each Party agrees to maintain the confidentiality of any information it receives from the other Party during the term of this Agreement and after its termination, including, without limitation, trade secrets, know-how, works of authorship, processes and any other information or data relating to the disclosing party's products and Services, its business and contractual relationships ("Confidential Information").

9.2. Each Party agrees not to use such Confidential Information for any purpose whatsoever, except as necessary to fulfill its obligations and exercise its rights under this Agreement. Except at the request of the competent administrative authority or judges and courts, neither Party shall disclose Confidential Information of the other to any third party. Where appropriate, provided that it is not expressly prohibited, the Party owning the information shall be informed prior to any disclosure, allowing it to argue and defend its rights.

9.3. The provisions of this clause shall survive the termination of this Agreement indefinitely.

 

10. Intellectual Property

10.1. INVELON and its licensors own all intellectual property rights included in the Service, among others, the Technology, Software, Contents, user interface, applications, as well as any suggestions, ideas, improvement requests, comments, recommendations or any other information that has been offered by the Customer or any other party related to the Service.

10.2. Customer shall respect all title, trademark and copyright notices, intellectual property and proprietary rights reserved, limits and other conditions to which the use of the Technology is subject in accordance with this Agreement.

10.3. The Services and the Technology may use third party Software, subject to their own licenses and reservations of rights from their respective owners. In particular, the Technology uses, without limitation, the third party Software "Unreal® Engine", the code for which is included in the Products obtained by Customer through the use of the Services. Accordingly, as shown below for the Technology, 

“Aurora Cloud uses the Unreal® Engine. Unreal® is a trademark or registered trademark of Epic Games, Inc. in the United States of America and elsewhere” “Unreal® Engine, Copyright 1998 – 2021, Epic Games, Inc. All rights reserved.”.

Customer is obligated to include in the documentation for each of its Products obtained from the use of the Technology the following notice (i) inserting the Product name in place of "Aurora Cloud"; and (ii) incorporating the year corresponding to the date of publication of the Product documentation.

10.4. The Customer acknowledges and agrees that the copyrights, trademarks and all other intellectual and industrial property rights of any nature on the elements of the Technology, the Software, the Contents and, in general, the Services, as well as the corresponding specifications and technical instructions are and shall remain the property of INVELON and its licensors, and nothing in this Agreement may be construed as a transfer or assignment of rights in favor of the Customer or third parties.

 

11. Miscellaneous

11.1 No Third Party Beneficiaries. There are no third party beneficiaries of this Agreement. This Agreement has for the parties only INVELON TECHNOLOGIES, S.L. and Customer.  

11.2. Governing Law and Jurisdiction. This Agreement is governed by its own terms and in accordance with the laws of Spain, without giving effect to its conflict of laws principles. All disputes arising under or in connection with this Agreement shall be resolved exclusively in the courts and tribunals of the City of Lleida, Spain, with express waiver by the Parties of their own jurisdiction. 

11.3 Waiver. The waiver of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other or subsequent breach of any provision of this Agreement.

11.4. Severability. If any part of this Agreement is held to be unenforceable, in whole or in part, such circumstance shall not affect the validity or enforceability of the remainder of the Agreement. 

11.5. Contractual Assignment. Customer may not assign this Agreement without INVELON's prior written consent, which shall not be unreasonably withheld. INVELON may assign this Agreement without the need for Customer's consent (a) in the event of any merger, acquisition or corporate reorganization or (b) to a purchaser of all or substantially all of its assets.  

11.6. Force Majeure. Neither Party shall be liable for any delay or failure in performance due to causes beyond its reasonable control.  

11.7. Notifications. All notices permitted or required under this Agreement shall be in writing and shall be delivered by e-mail, return receipt requested, to the Customer's address communicated in the registration process to the Services (addressed to the person named as the contact person in the Customer information managed within the Services) and to INVELON at the e-mail address [email protected]; or such other address as either Party may specify in writing. Such notice shall be deemed given upon receipt. 

11.8. Modifications. INVELON reserves the right at all times to propose modified terms of this Agreement, effective upon agreement with Customer and/or any subsequent renewal of the term of the Agreement. If Customer no longer wishes to be bound by the Agreement after such modification, Customer may terminate the Agreement upon notice to INVELON. 

11.9. Entire Agreement. This Agreement constitutes the entire agreement between INVELON and Customer and supersedes all prior or contemporaneous oral or written agreements with respect to the subject matter of this Agreement.

 

INVELON TECHNOLOGIES, S.L.

 

ANNEX 1

 

Description of the Technology

 

The functionalities will be kept updated in this link: https://www.auroracloud.tech/funcionalidades/