The PARTIES identified in the COVER SHEET, which forms an integral part of these general conditions, enter into this instrument for the licensing of the SOFTWARE and other arrangements, hereinafter referred to as SOFTWARE. The licensee shall hereinafter be referred to as the USER, and the company owning the SOFTWARE hereby licensed shall hereinafter be referred to as the LICENSOR.
By electronically accepting this Agreement, the USER automatically agrees to and acknowledges the terms and conditions of this Agreement and QYON's Privacy and Personal Data Protection Policy.
QYON's Privacy and Personal Data Protection Policy is available at https://qyon.com/politica-de-privacidade/ and forms part of these general conditions, as it governs the collection, use, storage, processing, sharing, protection and deletion of personal data that may be processed in the relationship between the LICENSOR and the USER as a result of using the SOFTWARE.
I – PURPOSE
1.1. Under this instrument, the LICENSOR grants a SOFTWARE license for use on the USER's equipment, according to the specifications in the COVER SHEET.
1.1.1. This license authorizes the USER to access and use the SOFTWARE described in the COVER SHEET directly from the cloud, using a login supplied by the LICENSOR and a password to be created by the USER.
1.2. In addition to licensing the SOFTWARE to the USER, these general conditions cover technical support, updates and maintenance relating to the SOFTWARE.
II – SOFTWARE ACCESS
2.1. Access to the SOFTWARE shall be through the internet, according to the contracted products described in the COVER SHEET.
2.2. By granting access to the SOFTWARE or any functionality available therein, the LICENSOR does not transfer to the USER any industrial and/or intellectual property rights over any component, creation, computer program, image, design or other item available in the SOFTWARE, granting solely a temporary, non-exclusive, non-transferable license, revocable at any time at the LICENSOR's discretion.
2.3. The LICENSOR reserves the right, at any time and at its sole discretion, to modify the conditions of access to the SOFTWARE, change its design and/or presentation, add or remove functionality and/or information, or make any other change of any kind, without giving the USER any right to claim damages on any grounds.
2.4. If the USER creates an account to access the SOFTWARE, they must provide true and accurate information and are responsible for keeping their username and password confidential, as these are personal and non-transferable.
2.5. The USER shall be solely and exclusively responsible for all activities performed using their access credentials (username and password), including improper activities, and may not hold the LICENSOR responsible for hacking or virus infections on their equipment resulting from disclosure of the password through the USER's negligence, recklessness and/or lack of skill, or from fraud, coercion or misrepresentation by third parties, or from unforeseeable events or force majeure.
2.6. Furthermore, in any of the circumstances in item 2.5 above, or if the USER provides false information, the LICENSOR may, at its sole discretion, suspend or cancel
the USER's account immediately, without prior notice, without prejudice to claiming damages for any leak of information contained in the SOFTWARE.
III – USER OBLIGATIONS
3.1. The USER must use the SOFTWARE in accordance with this Agreement and comply with all legal rules applicable to the product.
3.1.1. The USER must keep registration data and the current list of personnel with tool access permissions up to date.
3.1.2. In the event of a change of address, the USER must immediately notify the LICENSOR so that registration records can be updated.
3.2. The USER acknowledges and agrees that, to access and fully use the licensed SOFTWARE, they must already have internet access equipment and technological infrastructure meeting the minimum requirements for proper operation of the SOFTWARE, as specified in the COVER SHEET.
3.2.1. The USER undertakes to update all their computer equipment; otherwise, they may lose access to technological improvements and updates implemented in the SOFTWARE and cease to benefit from its features.
3.3. If any abnormal situation or instability in the SOFTWARE is identified, the USER must notify the LICENSOR as soon as possible so that stabilizing measures can be taken.
3.4. If information is lost for reasons attributable to the USER, the LICENSOR shall not be liable for compensation for any resulting direct or indirect damage.
3.5. The USER agrees and undertakes to:
3.5.1. Immediately inform the LICENSOR of any unauthorized use of the login or password for access to the SOFTWARE;
3.5.2. Ensure the SOFTWARE is not accessed by unauthorized third parties, including, without limitation, not supplying, granting or making the login and password available to third parties unless previously authorized by the LICENSOR.
3.6. Any backups downloaded from the cloud database shall be the USER's sole and exclusive responsibility.
3.7. The USER acknowledges that minor programming defects (bugs) are common to all computer programs, releasing the LICENSOR from liability for damage arising from such ordinary bugs and limiting the LICENSOR's responsibility to correcting these minor programming defects.
3.8. The USER may not access the SOFTWARE's source code or closed layers and acknowledges that attempting to access, or actually accessing, these items by any means infringes the copyright of the SOFTWARE's rights holder and subjects the USER to statutory penalties.
3.9. The USER may not, directly or indirectly, including through representatives, copy, modify, transfer, sublicense, assign, sell, rent, pledge, donate or otherwise dispose of the SOFTWARE to third parties in any form, free of charge or for payment, temporarily or permanently, in whole or in part, nor reverse-engineer, translate or decode it in whole or in part. The same prohibitions apply to any documentation or information relating to the SOFTWARE.
3.10. The USER undertakes not to use the SOFTWARE's specifications, or allow third parties to use them, to create other software with the same purpose.
3.11. If an update or new SOFTWARE version requires new technical specifications for the USER's infrastructure, including but not limited to hardware, operating system, database manager, network and internet, upgrades shall be the USER's sole and exclusive responsibility. No reimbursement, offset, compensation or other payment may be sought from the LICENSOR.
3.12. Although the LICENSOR will use its best efforts to make the SOFTWARE available to the USER free of errors and failures, it is understood to be a generic product, not specially commissioned by the USER.
3.12.1. Therefore, the absence of features meeting the USER's specific needs does not oblige the LICENSOR to implement updates or changes to the SOFTWARE, nor entitle the USER to request a reduction, discount or waiver of agreed license payments.
3.12.2. Likewise, interruptions in the contracted internet connection, which is always the USER's responsibility, do not entitle the USER to any reduction, discount or waiver of agreed license payments.
3.13. The USER declares that the SOFTWARE's features and functionality were demonstrated in advance and may not claim that adequate information was not provided.
IV – LICENSOR OBLIGATIONS
4.1. The LICENSOR undertakes to make the SOFTWARE available to the USER in accordance with the obligations set out in this instrument.
4.2. The LICENSOR undertakes to:
4.2.1. Provide the services covered by this Agreement continuously, including new versions, improvements and enhancements relating to the SOFTWARE, provided it receives the monthly license fees specified in the COVER SHEET;
4.2.2. Provide technical support directly or through its franchisee network to the USER by telephone, email or chat, solely to guide use and handling of the SOFTWARE, as well as on-site technical support and/or training in using and understanding the SOFTWARE, provided it is properly updated and the USER's monthly payments are up to date.
4.2.2.1. If necessary, the LICENSOR may provide technical support by remotely accessing the USER's computer over the internet, to which the USER hereby agrees and consents.
4.2.2.2. If necessary, the LICENSOR will also copy the USER's database for analysis, simulation and reproduction of possible inconsistencies in its laboratory, guaranteeing complete confidentiality of all information in the database.
4.2.2.3. If on-site technical support is provided by the LICENSOR or its franchisee network, travel and service time will be charged according to the travel and technical hourly rates in effect at the time of service.
4.2.3. Maintain and provide updated SOFTWARE in accordance with changes to applicable legislation, with automatic adaptations in the SOFTWARE's development schedule at the LICENSOR's discretion and as required by legislative changes at all three levels of government. For state and municipal legislative changes, the LICENSOR's obligation is limited to the state and municipality of the USER's headquarters.
4.2.3.1. State and municipal legislative changes outside the USER's headquarters may be implemented at the USER's request, subject to prior analysis by the LICENSOR, which will provide a quotation for the implementations.
4.3. The LICENSOR shall not be held liable in any way for penalties imposed on the USER arising from state or municipal legislative changes outside the USER's headquarters if the USER has not formally notified the LICENSOR in sufficient time for the SOFTWARE to be adapted.
4.4. The USER acknowledges and expressly agrees that the SOFTWARE will be updated according to current legislation at their headquarters. Versions supporting obsolete legal procedures will not be maintained. This also applies to ancillary obligations, particularly files generated for government agencies, whose layouts will always follow the latest version provided by those agencies.
4.5. If legislative changes cause substantial modifications to the SOFTWARE, including but not limited to developing routines to issue new tax documents or creating new ancillary obligations for the USER, the LICENSOR may review the contractual prices agreed herein to restore the Agreement's financial balance.
4.6. If the USER disagrees with the SOFTWARE's legal treatment, they must email the LICENSOR an explanation accompanied by the legislation supporting the disagreement. The LICENSOR will only analyze the issue after this step.
4.7. The LICENSOR reserves the right to assess which changes are essential for SOFTWARE implementation. Rules issued at any level that affect only a specific group of companies, rules issued by unions, federations and other professional bodies, and rules concerning Special Tax Regimes are excluded.
4.8. The LICENSOR may freely add, change or remove SOFTWARE screens, routines, reports and procedures without prior notice, always aiming to improve the product for USERS collectively.
4.8.1. Alongside ownership of the SOFTWARE, all improvements and new features implemented at the LICENSOR's initiative or suggested by the USER shall remain entirely owned by the LICENSOR. The USER shall have no rights of any kind over such implementations.
V – LICENSE FEES
5.1. For the SOFTWARE license, the USER shall pay the LICENSOR the SOFTWARE usage and maintenance license fee, under the payment conditions specified in the COVER SHEET as agreed by the PARTIES.
5.2. Late payment of any monthly fee may result in the LICENSOR demanding payment plus a 2% (two percent) penalty, monetary adjustment calculated using IGP-M (Fundação Getúlio Vargas) or its replacement, and late interest of 1% (one percent) per month until actual payment.
5.3. If the USER remains in default for more than 5 (five) days after the original monthly due date, the LICENSOR may, at its sole discretion, suspend or cancel the SOFTWARE license and terminate this Agreement by operation of law, without prejudice to formally protesting the debt, reporting the USER to credit protection services and pursuing appropriate legal action, in which case pre-agreed attorney fees of 20% (twenty percent) of the total debt shall apply.
5.4. The USER acknowledges and agrees that suspension or cancellation of the SOFTWARE license for nonpayment does not release them from paying outstanding installments up to effective termination.
5.5. The LICENSOR shall adjust the monthly fee annually from signature of the Agreement based on IGP-M (Fundação Getúlio Vargas), or its replacement, provided the variation is positive. Otherwise, the USER shall continue paying the same amounts as the preceding 12 (twelve) monthly fees, or at the minimum frequency required by law.
5.5.1. If legislation permits adjustments more frequently than the currently required annual interval, the LICENSOR may immediately apply the new minimum adjustment interval to this Agreement.
5.6. All taxes payable under this contract are already included in the agreed monthly fees.
VI – TERM
6.1. This Agreement shall last 12 (twelve) months and automatically renew for an indefinite term unless either PARTY gives written notice of intent to terminate at least 90 (ninety) days in advance, without penalties or charges.
6.2. During the indefinite term, the terminating party must give the other party 90 (ninety) days' prior notice before the effective end of the contractual relationship.
6.3. Termination does not release the USER from paying any monthly fees already due and unpaid.
VII – LIMITATIONS OF LIABILITY
7.1. To the fullest extent permitted by applicable law and subject to Clause 7.2, the PARTIES understand and agree that the maximum compensation payable by the LICENSOR for any damage arising from or related to this Agreement shall not exceed 30% (thirty percent) of the total of 12 (twelve) monthly fees in effect when the damage occurred.
7.2. Notwithstanding Clause 7.1 above, the PARTIES expressly agree that the LICENSOR shall not be liable in any way for indirect, consequential, incidental, punitive or special damages, including but not limited to lost profits, loss of business or revenue, and liability to third parties.
VIII – CONFIDENTIALITY
8.1. Data and information in the COVER SHEET are exclusively known to the PARTIES and may not be used as a source of information for third parties, except information already published or for filing legal actions of any kind.
8.2. The LICENSOR shall comply with Law No. 12,965/2014 (Brazilian Internet Civil Framework) concerning protection of the USER's personal data, where applicable, and shall retain data entered by the USER throughout this Agreement and for at least 6 (six) months after termination. The LICENSOR may make such data available to the USER upon judicial authorization, as required by Article 15 and its paragraphs of that law.
8.3. The USER hereby authorizes sharing of their personal data and use of their name by the LICENSOR, other companies wholly owned by the same indirect shareholders of the LICENSOR or managed by the same investment management company as those indirect shareholders, and the LICENSOR's franchisee network, without entitlement to remuneration from any party. The LICENSOR may identify the USER as a customer in any publicity medium at its sole discretion.
IX – GENERAL PROVISIONS
9.1. Any out-of-court notice between the PARTIES may be delivered by registered letter, email or another technologically permitted means, provided actual receipt by the other party is confirmed and the sender retains proof of delivery.
9.2. The USER may not assign and/or transfer this Agreement or other documents required during the contractual relationship, in whole or in part, without the LICENSOR's prior written consent, under penalty of automatic termination and a fine of 10% (ten percent) of the total contract value for the 12 (twelve) month period.
9.2.1. The LICENSOR may freely assign this Agreement and other documents required during the contractual relationship to any subsidiary, parent company or company under common control.
9.2.2. Once the USER transfers the Agreement in accordance with Clause 9.2 above, the LICENSOR shall provide all necessary instructions and procedures. If these are not followed by the USER or assignee, the LICENSOR will consider the transfer irregular and may apply the penalty in Clause 9.2.
9.3. The COVER SHEET, this Agreement and its appendices shall prevail over any verbal negotiation or document exchanged by the PARTIES. The documents described above shall be valid when duly signed by the PARTIES' legitimate legal representatives.
9.4. The USER declares that they had full access to explanations of all clauses in this and any other documents signed by the PARTIES, as well as the licensed SOFTWARE and the LICENSOR's other products, and may not claim ignorance or lack of capacity in relation to them.
X – JURISDICTION
10.1. The PARTIES elect the courts of the capital of the State of São Paulo to resolve questions or disputes arising from this Agreement, expressly waiving any other jurisdiction, however privileged it may be or become.
SECOND AMENDMENT TO THE GENERAL CONDITIONS FOR SOFTWARE LICENSING
Under this AMENDMENT, the parties (individually a “PARTY” and collectively the “PARTIES”) are, on one side:
QYON TECNOLOGIA S.A., a private legal entity registered under CNPJ/ME No. 38.469.354/0001-52, headquartered at Rua Carijós, No. 800, Parque Novo Mundo, Americana/SP, hereinafter simply the “LICENSOR”;
And on the other:
The parties agree to this SECOND AMENDMENT TO THE GENERAL CONDITIONS FOR SOFTWARE LICENSING (“AGREEMENT”), which shall take effect under the following clauses and conditions:
Clause One – Contractual Amendment
1.1. The PARTIES agree that Clause 5.3 of the AGREEMENT shall read as follows:
5.3. If the USER remains in default for more than 15 (fifteen) days after the original monthly due date, the LICENSOR may, at its sole discretion, suspend the SOFTWARE license until outstanding amounts are paid.
Sole paragraph. If default continues for more than 30 (thirty) days, the LICENSOR may also, at its sole discretion, cancel the SOFTWARE license and terminate this Agreement by operation of law, without prejudice to formally protesting the debt, reporting the USER to credit protection services and pursuing appropriate legal action. In this case, pre-agreed attorney fees of 20% (twenty percent) of the total debt shall apply.
1.2. The new wording of Clause 5.3 expressly revokes the First Contractual Amendment.
Clause Two – Ratification
2.1. All other clauses and conditions of the original AGREEMENT that do not conflict with this Amendment remain unchanged and are ratified.
Having thus agreed, the Parties execute this instrument digitally and agree to use and recognize electronic signatures as a valid expression of consent, regardless of use of an ICP-BRASIL certificate, under Provisional Measure No. 2,200-2 of August 24, 2001.