Read carefully: by this instrument, Desk Manager grants you the right to use the Desk Manager platform, provided you accept the terms and conditions described below and have signed a license agreement for the use of the Desk Manager platform. If you do not agree with any terms and/or conditions of these terms of use, you should not hire and/or use the Desk Manager platform. By accepting these terms of use, you acknowledge that you have read and understood their content, that you accept their terms and conditions, and agree to be fully bound by them freely and spontaneously, as well as by the Desk Manager privacy policy.
1.1 These Terms of Use establish the terms and conditions for the use of the Desk Manager Software between You (“You” or “Licensee”) and Desk Manager Software Ltda. (“Desk Manager” or “Licensor”). The Licensor is the owner of the Desk Manager Software (as defined below) and grants You, through these Terms of Use of the Desk Manager Software License Agreement, a temporary, non-exclusive, restricted, and costly license to use the Desk Manager Software for managing service calls and requests.
Acceptance of these Terms of Use subjects You to full compliance with the terms and conditions herein as well as those provided in the Desk Manager Privacy Policy and the Software License Agreement entered into between You and Desk Manager.
2.1 For the purposes of these Terms of Use, the following expressions shall have the meanings assigned below:
3.1 Upon payment of the mutually agreed amounts through the License Agreement, Desk Manager grants the Licensee, as the end user, a temporary, non-exclusive, costly, non-transferable, non-sublicensable license to use the Desk Manager Software, subject to the terms and conditions set forth in these Terms of Use, the License Agreement, and the Privacy Policy. The Licensee shall have the right to use the Desk Manager Software only for its internal use, for its own benefit, and within the scope of the activities performed by the Licensee.
3.2 This License allows the use of the Software by the number of users and according to the modules contracted between the parties through the License Agreement.
3.3 As it is a remote access platform license (Software as a Service – SaaS), the Licensee shall acquire appropriate hardware, equipment, and internet access/connection services and others, as recommended by the Licensor, to enable the good and full performance of the Desk Manager Software.
4.1 In addition to the provisions contained in the License Agreement, the Licensee agrees to refrain from:
5.1 Technical Support services will be provided by Desk Manager upon payment of the amounts agreed between the parties in the License Agreement.
5.2 The Technical Support provided by Desk Manager is specifically intended to maintain the functionalities of the Desk Manager Software for the proper use by the Licensee. User training (subsequent to the software implementation and initial training), IT services, consulting services, and other services not specified herein are not included in the Technical Support and must be contracted separately with Desk Manager, if necessary.
5.3 Technical Support services will be provided remotely by Desk Manager during business hours, from 9:00 AM to 6:00 PM, on business days, considered from Monday to Friday. The Licensee shall request Technical Support when necessary through telephone contact (+55 11) 2146-0000, by email to [email protected], or through the customer service portal (“Customer Portal”) which can be accessed via a link found on the Desk Manager website (www.deskmanager.com.br).
5.4 Both Parties acknowledge that Desk Manager cannot be held liable for delays or performance failures resulting from force majeure events or internet access/connection services contracted by the Licensee.
5.5 Desk Manager declares that it has the technical conditions to offer and maintain the availability of the Desk Manager Software at 99% (ninety-nine percent) of the time, in each calendar month, provided that the terms and conditions of these Terms of Use and the License Agreement are observed.
5.6 For the purposes of this clause, Desk Manager undertakes to meet the following targets regarding the Technical Support services of the Desk Manager Software:
5.7 If the Licensee is interested, it should request Desk Manager’s backup service to store a security copy of the data and information contained in the Desk Manager Software used by the Licensee. Desk Manager undertakes to maintain a high level of care and treatment of the collected data, according to the terms and conditions established in the Desk Manager Privacy Policy.
6.1 These Terms of Use will come into effect from the date of signing the License Agreement and will remain in force throughout the duration of the License Agreement entered into by the Licensee and the Licensor.
6.2 The termination provisions provided in the License Agreement signed between Desk Manager and the Licensee apply to these Terms of Use.
6.3 Upon termination, for any reason, of the License Agreement signed between Desk Manager and the Licensee, the Licensee must immediately cease any use of the Desk Manager Software. Subject to the terms and conditions set forth in these Terms of Use, the License Agreement, the Privacy Policy, and applicable law, Desk Manager undertakes to provide a copy of all Information entered by the Licensee in the Desk Manager Software upon the termination of the License Agreement.
7.1 The Licensee agrees to promptly pay the amounts due for the Desk Manager Software license, as well as for Technical Support, as agreed through the License Agreement, under penalty of suspension of the Desk Manager Software license and Technical Support services until full regularization of the amounts due to Desk Manager.
8.1 The Licensor guarantees (i) that the Desk Manager Software provided to the Licensee meets the specifications and functionalities provided in these Terms of Use and the License Agreement, in all substantial aspects; and (ii) the technical validity of the Desk Manager Software during the term of the License Agreement.
8.2 The warranty provided in this Clause 8 will not apply if the defect in the Desk Manager Software arises from: (a) misuse of the Desk Manager Software and/or use inconsistent with its specifications and/or purposes; (b) alteration, modification, or conversion of the Desk Manager Software by the Licensee or any third party; (c) malfunction of hardware, equipment, or services contracted by the Licensee, including internet access/connection services; (d) technical support or repair services performed by an unauthorized third party; (f) use by the Licensee of third-party platforms in conjunction with the Desk Manager Software; and/or (g) any other event occurring after the initial delivery of the Desk Manager Software to the Licensee, except if caused solely by the Licensor’s fault.
8.3 THE DESK MANAGER SOFTWARE IS LICENSED “AS IS.” DESK MANAGER SOFTWARE UPDATES WILL BE PERFORMED PERIODICALLY, AT THE LICENSOR’S DISCRETION.
8.4 THE LICENSOR DOES NOT GUARANTEE THAT THE FUNCTIONALITIES OF THE DESK MANAGER SOFTWARE WILL SATISFY THE LICENSEE’S NEEDS, NOR THAT THE DESK MANAGER SOFTWARE WILL OPERATE FREE FROM INTERRUPTIONS, ATTACKS, OR ERRORS. EXCEPT AS PROVIDED HEREIN AND TO THE EXTENT PERMITTED BY LAW, THE LICENSOR AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING FROM LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE. THE LICENSEE ACKNOWLEDGES ITS RESPONSIBILITY FOR CHOOSING THE DESK MANAGER SOFTWARE LICENSED TO ACHIEVE THE DESIRED RESULTS, AS WELL AS FOR THE APPROPRIATE USE OF THE DESK MANAGER SOFTWARE AND RESULTS OBTAINED THROUGH IT.
THE LICENSEE ACKNOWLEDGES ITS RESPONSIBILITY FOR CHOOSING THE DESK MANAGER SOFTWARE LICENSED TO ACHIEVE THE DESIRED RESULTS, AS WELL AS FOR THE APPROPRIATE USE OF THE DESK MANAGER SOFTWARE AND RESULTS OBTAINED THROUGH IT.
9.1 THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT (I) THE STATE OF THE ART DOES NOT ALLOW THE DEVELOPMENT OF SOFTWARE ENTIRELY FREE FROM ERRORS; (II) THE AMOUNTS PAID BY THE LICENSEE UNDER THIS INSTRUMENT CONSIDER THE RISKS INVOLVED IN THIS TRANSACTION; AND (III) THE COSTS OF INSURANCE TO COVER ALL RISKS OF THE LICENSOR INVOLVED IN THIS TRANSACTION WOULD BE SO HIGH THAT THE LICENSE AGREEMENT WOULD NOT BE VIABLE. FOR THESE REASONS, THE LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE LICENSOR’S ENTIRE LIABILITY WILL BE LIMITED TO THE AMOUNT PAID FOR THE DESK MANAGER SOFTWARE LICENSE BY THE LICENSEE TO THE LICENSOR IN THE FIRST 12 (TWELVE) MONTHS OF THE RESPECTIVE LICENSE AGREEMENT. THIS PROVISION APPLIES TO ALL CAUSES OF ACTION, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, WARRANTY VIOLATION, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER DAMAGES. THE LICENSEE ALSO ACKNOWLEDGES THAT THE LIMITATIONS OF LIABILITY IN THIS CLAUSE CONSTITUTE AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT, IN THE ABSENCE OF SUCH LIMITATIONS, THE PRICES AND OTHER CONDITIONS SET FORTH HEREIN WOULD BE SUBSTANTIALLY DIFFERENT.
9.2 THE LICENSOR WILL NOT BE LIABLE FOR ANY KIND OF INJURY, LOSS, OR DAMAGE, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL, NOR FOR LOSS OF INFORMATION, DATA, OR PROGRAMS, OR FOR THE COST INCURRED IN THE RECOVERY OF SUCH DATA OR PROGRAMS, EVEN IF INFORMED IN ADVANCE ABOUT THE POSSIBILITY OF SUCH DAMAGES.
9.3 THESE TERMS OF USE AND THE PROVISIONS OF THIS CLAUSE 9 ARE NOT INTENDED TO EXCLUDE OR RESTRICT THE LICENSOR’S LIABILITY OR ITS SUPPLIERS BEYOND THE LIMITS PERMITTED BY LAW.
10.1 The Licensor (and/or its affiliates) and, when applicable, its suppliers, own and shall retain full ownership rights over the Desk Manager Software, as well as all related intellectual property rights, present or future. Such intellectual property rights include, without limitation, any rights over patents, computer programs, copyrights, trademarks, trade secrets, industrial designs, business names, domain names, know-how, and related exclusives.
10.2 Nothing contained in these Terms of Use shall be construed as a transfer or assignment of ownership of any intellectual property rights related to the Desk Manager Software, including, but not limited to, any intellectual property rights over creations/inventions subsequent to the signing of the License Agreement.
10.3 The Licensee declares and guarantees not to infringe any intellectual property rights of the Licensor, except as expressly authorized by the Licensor. The Licensor may conduct an audit at the Licensee’s premises at any time, during business hours, to verify whether the use of the Software by the Licensee is in accordance with the terms and conditions set forth in this Agreement. If the audit reveals a breach by the Licensee of the terms and conditions of this Agreement, the Licensee shall be liable for the applicable damages, direct and indirect, without prejudice to other contractual penalties and legal sanctions.
10.4 Desk Manager declares that it has no knowledge of any violation of third-party intellectual property rights resulting from the Desk Manager Software. Nevertheless, Desk Manager reserves the right, in the event of any violation of third-party rights that it becomes aware of, to (i) seek measures to regularize the use of the Software; and/or (ii) terminate the License Agreement early, by refunding the amounts eventually already paid by the Licensee, proportional to the remaining period of the License Agreement.
11.1 The Licensee, by itself or through its partners, agents, contractors, or successors, undertakes to maintain the utmost confidentiality of the data and information it becomes aware of as a result of these Terms of Use, the License Agreement, and/or the Privacy Policy, during the term of the License Agreement and for at least 5 (five) years after the termination of the License Agreement, for any reason.
11.2 Confidential information encompasses these Terms of Use, the License Agreement, and all information about the Desk Manager Software, its updates, modifications, and derivatives, as well as any other information designated as such by Desk Manager, in writing, or which, by its nature, deserves to be kept confidential.
11.3 Failure to comply with the provisions of this Clause may result in the termination of these Terms of Use and the License Agreement by Desk Manager and subject the Licensee to applicable penalties and indemnities, to the fullest extent permitted by applicable law.
12.1 The Desk Manager Software depends on the processing and storage of data/information, as well as the control and monitoring of hardware when using the RCS tool, for its performance and execution. The Licensee is solely responsible, and exonerates the Licensor, for the collection of data/information from its clients, including, without limitation, obtaining express authorization for the collection, processing, and storage of its data/information, for compliance with applicable laws and data collection and privacy protection standards, and other regulations, laws, market standards, and third-party rights applicable to any of its activities. The Licensee undertakes to indemnify and hold the Licensor harmless from any liability related to any damages, claims, losses, settlements, attorneys’ fees, legal costs, and other expenses related to its activities and any related demands.
12.2 These Terms of Use subject the Licensee to the terms and conditions of the Desk Manager Privacy Policy.
13.1 Under this instrument, the Parties undertake to:
14.1 The Licensor may assign these Terms of Use to any affiliate or associated company of the Licensor, or to any eventual and future assignee of the intellectual property rights and ownership of the Desk Manager Software. The Licensee may not assign, in whole or in part, these Terms of Use or the Software License Agreement, except with the written authorization of the Licensor.
14.2 These Terms of Use may be amended at any time, at the discretion of the Licensor, upon prior notice of 30 (thirty) days.
14.3 These Terms of Use are governed by the laws of the Federative Republic of Brazil. The parties elect the court of the District of São Paulo, State of São Paulo, Brazil, with the exclusion of any other, however privileged it may be, as the sole competent court to decide any matters arising from this instrument.
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