Subscription Agreement - VirtualSeller

Offer of Subscription Contract

Introduction

We hereby make to you an Offer to enter into an underwriting agreement (the "Offer"). If the Offer has been accepted by the means described herein, the following subscription agreement (the "Agreement") shall be deemed to be executed and shall be governed by the terms and conditions described below, with You, on the one hand, and VS, on the other hand, as parties.

Your acceptance of the Offer and your consent to accept this Agreement is evidenced either by clicking a box indicating such acceptance, or by executing the Service Request Form referenced in this Agreement. Upon such consent, You will have accepted all of the terms set forth herein.

The Agreement is effective between You and Us as of the date on which You signify Your acceptance, on the terms described herein.

This Agreement governs your free trial of the Services (as defined below) for seven (7) days, with the possibility of extension up to a maximum of thirty (30) days, at VS's discretion.

If you purchase our Services, this Agreement shall also govern your purchase and continued use of such Services.

If You are entering into this Agreement on behalf of a company or other legal entity, You expressly represent that You have sufficient authority to bind such entity to these terms and conditions, in which case the terms "You" or "your" shall refer to such entity. If You do not have such authority, You must refrain from using the Services on behalf of such legal entity.

You must refrain from accessing the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for the purpose of monitoring their availability, performance or functionality or for any other benchmarking or competitive evaluation purposes. You expressly agree to be liable for any damage or harm that You may cause Us in the event of a breach of such obligation to refrain.

All capitalized terms have the meaning given to them in the Contract, in particular clause 14 (Definitions).

1. 7-DAY FREE TRIAL

VS will make one or more Services available to You on a free trial basis until the earlier of (a) the seventh day after the Date of this Agreement or (b) the start date of the purchased Services requested by You. VS may at its sole discretion extend the free trial up to a maximum of 30 days. In addition, VS reserves the right to make additional terms and conditions applicable to the trial period, which may be posted on the trial registration web page, if any. Where applicable, such additional terms and conditions shall be deemed to be incorporated into this Agreement, and shall be legally binding between the parties.

Any data or information ("Data") that You enter into the Services and any customizations made to the Services by or for You during the trial period will be permanently lost unless You purchase a subscription to the same Services contemplated by the trial, purchase upgraded Services, or export such data prior to the end of the trial period. You may not transfer information entered or customizations made during the trial period to a Service that is a downgrade from the one covered by the trial; therefore, if you purchase a Service that is a downgrade from the one covered by the trial, you must export your Data before the end of the trial period or your Data will be permanently lost.

You acknowledge and agree that your registration information entered as part of the Trial Services will be transmitted to Licensor, and will be used by Licensor in accordance with its privacy policy available for viewing on its website.

VS does not accept any liability, nor does it guarantee the availability of your Data entered or customizations made to the system during the trial period.

You are responsible for examining and understanding the Services during the trial period to familiarize yourself with the features and functions of the Services prior to your purchase and based on the information available to you.

2. SERVICES PURCHASED

2.1. Provision of Purchased Services. VS will make the Purchased Services available to You pursuant to this Agreement and any applicable Service Order Forms for a subscription period. You agree that your purchase hereunder is not subject to the delivery of any specific functionality or dependent on any public comments made by Us regarding such functionality.

User Subscriptions. Unless otherwise specified in the applicable Service Order Form, (i) the Services are purchased for a specified number of User subscriptions and may be accessed by no more than such specified number of Users; (ii) additional User subscriptions may be added during the subscription period, at the price in effect at the time of the respective subscription, by calculating the price proportionally for the remainder of the annual subscription period in effect on the date on which the additional User subscriptions are added, taking into account that for the calculation of the proportional price, a month is the minimum calculation unit (i.e. the current month must be paid in full regardless of the day on which it is contracted); and (iii) such additional User subscriptions will expire on the same date as the pre-existing subscriptions. User subscriptions are for Users designated by You and may not be shared or used by more than one User, but may be reassigned to new Users to replace previous Users who for any reason stop using the Services.

3. USE OF SERVICES

3.1 Obligations of VS. We will: (i) provide you with basic technical support at no additional cost exclusively by email for Purchased Services, or premium technical support at additional cost if purchased separately; (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except: (a) in the event of planned outages, or (b) any unavailability caused by circumstances beyond Our reasonable control, including (without limitation) acts of God or force majeure, labor issues (such as strikes or acts of vandalism), Internet service provider failures or delays or any other circumstances beyond Our control; and (iii) We will provide the Purchased Services in full compliance with applicable laws and regulations.

3.2. Your Obligations. You will (i) be responsible for Users' compliance with this Agreement; (ii) take full responsibility for the accuracy, quality, completeness and legality of your Data and the means by which you acquired the Data; (iii) prevent unauthorized access to or use of the Services and notify us immediately if, to your knowledge, such unauthorized access or use occurs; and (iv) use the Services only in accordance with applicable laws and regulations. You will refrain from (a) making the Services available to anyone other than a User; (b) selling, renting or entering into any onerous contract with any third party (other than third party Application providers) that is for the purpose of providing the Services; (c) use the Services to store or transmit defamatory or libelous materials, or for purposes contrary to law, morals or decency, or that violate third party privacy rights; (d) use the Services to store or transmit Malicious Code; (e) interfere with or disrupt the integrity or performance of the Services or third party data therein; and (f) attempt to gain unauthorized access to the Services or their related systems or networks. You acknowledge and agree that VS monitors your use of the Services and accesses your Data and ML User Content (upon verification of identity), whether submitted or hosted within the Third Party Applications or as part of the Services.

3.3. Limitations on Use. The Services may be subject to other limitations such as limits on disk storage space, on the number of calls you are permitted to make to our application programming interface and, in the case of Services that allow you to provide public websites, on the number of page views by visitors to such websites.

4. THIRD PARTY SUPPLIERS

4.1. Acquisition of Third Party Products and Services. In conjunction with the Services, VS may offer for sale one or more Third Party Applications, which, if applicable, will be solicited through Service order forms. Notwithstanding the foregoing, any solicitation or purchase by You of any third party products or services linked to the Services, including without limitation, Third Party Applications and any implementation, customization and consulting services and any exchange of data between You and another third party provider, including the providers of the Third Party Applications (but excluding the combined VS and Licensor services offered by VS), creates a legal relationship solely between You and the applicable third party provider. VS does not warrant or endorse any third party products or services, whether or not designated by VS as "validated", "certified" or otherwise, except as otherwise specified in a Service Request Form.

4.2. Third Party Applications and Your Data. You acknowledge that we may allow Third Party Application providers to access your Data as necessary for the operation of such Third Party Applications with the Services. We will not be liable for any unauthorized disclosure, modification or deletion of your Data resulting from such access by Third Party Application providers to your Data.

5. FEES AND PAYMENT FOR SERVICES PURCHASED

5.1. Fees. In consideration for the provision of the Services, You will pay the fees specified in the applicable Service Order Forms in accordance with this Agreement.

Except as otherwise provided herein or in the applicable Service Order Form: (i) fees are quoted and paid in U.S. dollars; (ii) fees are based on the purchase of the Services, regardless of Your actual use of the Services in any billing period; (iii) except in cases of termination as set forth in Section 11.4, payment obligations are firm for the entire annual subscription period; (iv) fees paid are non-refundable; and (v) the number of User subscriptions purchased cannot be decreased during the subscription period, even in the event of rescission, termination, non-payment, non-use or any other situation or conduct on Your part.

Unless otherwise specified in the Service Order Form, subscription fees for Users are based on one (1) year periods, beginning on the subscription start date and ending at the end of each annual subscription period; except that fees for subscriptions added after the commencement of a given annual period will be charged as specified in Section 2.2(ii). Subscription of new Users within a subscription period shall be for periods coincident with such subscription period.

5.2. Billing and Payment. You will provide Us with valid and current credit card information to which the Services will be billed, or alternatively a valid purchase order or other alternative means of payment reasonably acceptable to Us, as specified in the Service Order Form.

If you choose to pay by credit card, you authorize us to charge your credit card for all Services indicated on the Service order form for the initial subscription period and any renewal subscription period as set forth in Section 12.2 (Period of Subscriptions Purchased by You). Charges will be made in advance on an annual basis unless a different billing frequency is agreed upon in the applicable Service order form.

If the Service Order Form specifies that payment will be made by a method other than credit card, billing will still be made in advance, unless otherwise specified in the applicable Service Order Form. Unless the Service request form states otherwise, billed charges will be due on the day of billing and will be debited at any time during the 30 calendar days from the date of the invoice. You agree to keep us updated with respect to any changes and in any event to keep your information at all times complete and accurate for billing and contact information in connection with the Services.

5.3. Past Due Charges. If you are delinquent in the payment of any of the charges billed as of the applicable due date, then at our discretion, We may take one or more of the following actions: (a) call upon you for immediate payment of unpaid amounts, plus penalty interest at the rate of 1.5% of the unpaid balance per month, or the maximum rate permitted by law, whichever is greater, accrued from the date of delinquency until the date of payment; (b) We may condition future subscription renewals and Service Order Forms on payment periods less than those specified in Section 5.2 (Billing and Payment); (c) suspend the provision of the Services as specified in Clause 5.4; and/or (d) terminate the Agreement, in which case we shall be entitled to take appropriate legal or extrajudicial action to pursue collection of any sums due and any applicable damages.

5.4. Suspension of Service and Acceleration. If any amount owed by You under this or any other agreement for our services is 10 or more calendar days past due (or in the case of charges that are not payable by credit card, 20 or more calendar days past due), VS may, without limiting other rights and remedies, declare Your unpaid fee obligations under such agreements (plus interest thereon) to be immediately due and payable, declare your unpaid fee obligations under such agreements to be past due, so that such obligations (plus any applicable interest) become immediately due and payable upon the expiration of the terms, and suspend Our services until such amounts are paid in full, without any such suspension giving rise to any liability on Our part.

5.5. Payment Disputes. In the case of charges or billing subject to a dispute that in our sole discretion is reasonable, and where You cooperate diligently and act in good faith to resolve the dispute, we agree not to exercise rights under Section 5.3 (Past Due Charges) or 5.4 (Suspension of Service and Acceleration) until the dispute is resolved out of court, provided that such dispute has not led to the suspension or termination of the Third Party Applications, in which case we will be forced to exercise our rights under Section 5.4 concurrently with the suspension or termination of such Third Party Applications.

Taxes. Unless otherwise expressly stated, Our rates and charges do not include any taxes, levies, duties, fees or other contributions of any nature, such as value added taxes, sales taxes, use fees or withholding for any taxes (including income tax withholding), imposed by any local, state, provincial, national or federal jurisdiction of any country ("Taxes"). You shall be responsible for the payment of all Taxes related to the Services provided under the terms of this Agreement.

In the event that VS has a legal obligation to pay or collect Taxes for which You are liable, then the corresponding amount will be billed to You and paid by You, unless You provide Us with a valid tax exemption certificate issued by the appropriate taxing authority and such certificate is accepted by the taxing authority to the effect that VS is not required to make such payment or collection of Taxes.

In addition, in the event that You are responsible for any withholding for any Taxes applicable to Us in any particular jurisdiction, then You shall pay Us an amount in addition to the amounts billed as fees for the Services, so that after deducting the amounts withheld for applicable Taxes, the total payable to Us will equal the fees that would have resulted had such withholding not been applicable.

6. PROPERTY RIGHTS

6.1. Reservation of rights. The use of our Services does not grant any intellectual property rights over our Services or content protected by intellectual property rights to which You access, which correspond in all cases to VS.

6.2. Restrictions. You shall refrain from (i) allowing any non-User or other third party to access the Services, except as permitted herein or in a Service Request Form; (ii) creating derivative works based on the Services; (iii) copying or presenting the content of this site within another (framing), or replicating any part or content of the Services, other than copying or framing in your own inventions; (iii) copy or present the content of this site within another site (framing), or replicate any portion or content of the Services, other than copying or framing on your own intranets or otherwise for your own internal business purposes; (iv) reverse engineer the Services; or (v) access the Services to (a) create a competing product or service, or (b) copy any resources, features or graphics from the Services.

6.3. Ownership of Your Data and Intellectual Property. You are and shall remain the exclusive owner of all Data You enter into the System for the provision of the Services. In addition, You will retain any intellectual property rights that You own in any copyrighted content that You enter into the System.

6.4. Suggestions. We will have a page for incorporating into the Services any suggestions, enhancement requests, recommendations or other comments provided by You regarding the operation of the Services. Any suggestions or ideas provided by you to VS will become the property of VS once made.

7. CONFIDENTIALITY

Definition of Confidential Information. For purposes of this Agreement, "Confidential Information" means any confidential information disclosed by one party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is marked as confidential or is understood to be confidential given the nature of the information and the circumstances of the disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and each party's Confidential Information shall include the terms and conditions of this Agreement and all Service request forms, as well as business and marketing plans, technological and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation of the disclosing Party, (ii) is known to the receiving Party prior to disclosure by the disclosing Party without breach of any obligation of the disclosing Party, (iii) is received from a third party without breach of any obligation of the disclosing Party, or (iv) is independently developed by the receiving Party.

7.2. Protection of Confidential Information. Unless otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of diligence as it uses to protect the confidentiality of its own Confidential Information of a similar nature (but in no event less than a reasonable degree of diligence) with the goal of not disclosing or using the Disclosing Party's Confidential Information for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to the Confidential Information of the Disclosing Party to those employees, contractors, third party Application providers and agents who need such access for purposes consistent with this Agreement and who have in place confidentiality agreements with the Receiving Party that include protections no less stringent than those set forth herein.

7.3. Protection of Your Data. Without limiting the foregoing, We will maintain appropriate administrative, physical and technical defenses to protect the security, confidentiality and integrity of your Data. In particular (a) we will not modify your Data; (b) we will not disclose your Data, except by operation of law in accordance with Section 7.4 (Forced Disclosure), pursuant to Section 4.3 (Third Party Applications and Your Data) or if expressly permitted by you in writing; and (c) we will not access your Data except to provide the Services or to prevent or resolve service or technical problems, or at your request in connection with customer support issues.

7.4. Forced Disclosure. The receiving Party may disclose Confidential Information of the disclosing Party if it is compelled to do so by applicable rules or provisions of any competent authority (legal compulsion), provided that the receiving Party gives prior notice to the disclosing Party (if reasonably possible) of such compelled disclosure, affording the disclosing Party an opportunity to raise any defenses thereto, at the expense of the disclosing Party and without prejudice to the receiving Party's compliance with its legal obligations.

7.5. Marketing communications. Notwithstanding the foregoing, you expressly authorize us to use your name or company name and logo or commercial identification to identify you as a customer of VS on our website and in our marketing and promotional activities.

8. REPRESENTATIONS - WARRANTIES

8.1. Reciprocal Representations. Each party represents that (i) it has sufficient legal capacity and corporate authority to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code.

8.2. NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR OTHERWISE WITH RESPECT TO THE SERVICES.

9. INDEMNITY

9.1. You agree to defend Us against any claim made or brought against Us by any third party (including governmental authorities) alleging that the Data You enter into the system or Your use of the Services in breach of this Agreement violates or misappropriates that third party's intellectual property rights or violates applicable law; and You will indemnify Us for damages arising from any judgment (including court costs and expenses), provided that We promptly notify You in writing of the Claim. VS shall have sole control of the defense and proceedings in connection with the Claim.

9.2. Other Remedies. The foregoing is without prejudice to other remedies that may be available under the circumstances and applicable law.

10. LIMITATION OF LIABILITY

10.1. Limitation of Liability. In no event shall the aggregate liability of either party arising out of or relating to this Agreement, whether in contract or tort, exceed the total amount paid by You hereunder or, with respect to any single occurrence, the amount paid by You hereunder in the 12 months prior to the occurrence.

10.2. Exclusion of indirect and related damages. In no event shall either party be liable to the other party for lost profits or consequential damages, however caused, whether in contract or tort, whether or not the other party has been advised of the possibility of such damages. The foregoing disclaimer shall not apply to the extent prohibited by applicable law.

11. TERM AND TERMINATION

Term of the Agreement. The term of this Agreement begins on the date You accept this Agreement (either by clicking a box indicating Your acceptance or by executing a Service request form that references this Agreement) and continues until all User subscriptions granted pursuant to this Agreement have expired or terminated. If You elect to use the Services during a free trial period and do not purchase a subscription before the end of the free trial period, this Agreement will terminate at the end of the free trial period.

11.2. Term of User Subscriptions Purchased. User subscriptions purchased by You begin on the start date specified in the applicable Service order form and continue for the subscription period specified therein. Unless otherwise specified in the applicable Service order form, all User subscriptions will automatically renew for additional periods equal to the expired subscription period unless either party gives notice of non-renewal to the other at least 60 days prior to the end of the respective subscription period. The price per unit during any renewal period will be the same as that for the previous period unless we have notified you in writing of an increase in our fees for the Services at least 60 days prior to the end of such previous period, in which case the price increase will be effective at and from the time of renewal.

11.3. Termination for Cause. Either party may terminate this Agreement for cause: (i) upon written notice to the other party in the event of a breach of an obligation under this Agreement, or automatically if such breaches are not cured within five days after receipt of such notice; or (ii) immediately if the other party becomes the subject of a bankruptcy petition, files for bankruptcy or goes into receivership.

11.4. Refund or Payment on Termination Date. In the event of termination by You for cause, We will refund the prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. In the event of termination for cause by Us, You will pay an amount equal to the fees covering the remainder of the term of all Service Order Forms from the date of termination through the end of the term of such term if termination had not occurred. In no event shall termination relieve you of any obligation to pay fees owed to us for periods prior to the date of termination.

11.5. Return of Your Data. In the event that You submit a written request to Us within 30 days after the date of termination of a Services subscription, We will make available for download a file containing Your Data in comma separated value (.csv) format along with attachments in their original format. After such 30-day period, We will have no obligation to maintain or provide Your Data to You and, thereafter, except where prohibited by law, We will delete all of Your Data from Our systems or exclude it from wherever We store it or have it under Our control.

11.6. Provisions in force after termination. Termination of the Agreement does not affect vested rights, particularly with respect to the matters covered in Sections 5 (Fees and Payment for Purchased Services), 6 (Proprietary Rights), 7 (Confidentiality), 9 (Indemnity), 10 (Limitation of Liability), 11.4 (Refund or Payment at Date of Termination), 11.5 (Return of Your Data), 12 (Notices, Applicable Law and Arbitration) and 13 (General Provisions).

12. NOTICES, APPLICABLE LAW AND ARBITRATION

12.1. Applicable law. Arbitration. This Agreement shall be governed by the applicable laws of the Oriental Republic of Uruguay.

The Parties agree that in case of any divergence, controversy or dispute arising between them in relation to this Agreement, its existence, validity, qualification, interpretation, scope, compliance or execution, it shall be finally resolved by the General Arbitration Court of the Montevideo Chamber of Commerce and the application of its rules, waiving any other jurisdiction that may correspond to them. In case of enforcement of the arbitration award, the competent courts of the city of Montevideo shall have jurisdiction. All costs arising from the arbitration or judicial proceedings, as the case may be, shall in all cases, and regardless of the outcome of the arbitration or judicial proceedings, be borne exclusively by whoever is decided by the Arbitral Tribunal or the intervening court.

12.2. Notices. Any claim, demand, notice, waiver or any other document that must be notified to the Parties must be made in writing by any reliable means such as document letter, courier, hand delivery, telegram, letter with postal acknowledgement of receipt, notarial act, to the addresses and persons indicated below: To VS: Local 003-005, Edificio Synergia, Ruta 8 Km 17500, Department of Montevideo, Oriental Republic of Uruguay.

Notices to You will be directed to the system administrator designated by You for your relevant Services account and in the case of billing-related notices, to the respective billing contact designated by You.

13. GENERAL PROVISIONS

13.1. Relationship between the parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

13.2. Waiver and Accrual of Remedies. Failure or delay in exercising any right granted in this Agreement by either party shall not constitute a waiver of such right.

13.3. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and construed as best effectuates the objectives of the original provision to the fullest extent permitted by law and the remaining provisions of this Agreement shall continue in effect.

13.4. Attorneys' Fees. At Our request, You will pay all Our reasonable attorneys' fees and other costs incurred by Us to collect fees or charges due to Us under the Agreement upon Your breach.

13.5. Assignment. You may not assign Your rights or obligations under this Agreement without Our prior written consent (which shall not be unreasonably withheld). VS may assign its rights and obligations under this Agreement without consent from You.

13.6. Entire Agreement. This Agreement, including all exhibits and appendices hereto and all Service request forms, constitutes the entire agreement between the parties hereto and supersedes all agreements, proposals or representations, whether oral or written, relating to its subject matter. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed or accepted in electronic form by the party to whom the modification, amendment or waiver is to be effective. However, in the event of any conflict or inconsistency between the provisions of the body of this Agreement and any rider or addendum hereto or to any Service Request Form, the terms of such rider, addendum or Service Request Form shall control.

13.7. Licensor's Services. ML Sublicense.

Your use of the Services constitutes your express adherence to and acceptance of the Licensor's terms of service, which are available on the Licensor's web site at https://www.virtualseller.com/acuerdo-de-suscripcion/enduseragreement-sfdc. Likewise, the use of the Services implies your express adherence to and acceptance of the terms of the "Mercado Libre Developer Program & Application Programming Interface License Agreement" available on the page https://www.virtualseller.com/acuerdo-de-suscripcion/enduseragreement-meliunder which you acquire the obligations corresponding to the developer under such agreement.

14. DEFINITIONS

"Third Party Applications" are "on line" web-based applications and "off line" software products provided by third parties but which work with the Services and are identified as third party applications.

"Malicious Code" means viruses or other computer programming routines that may damage, interfere with, surreptitiously intercept or expropriate any system or data set.

"Contract Date" means the date on which You expressly or tacitly express Your willingness to accept this Agreement.

"Service Request Form" shall mean the purchase orders placed pursuant to this Agreement, including any attachments thereto. Service Request Forms shall be deemed to be incorporated into this Agreement.

"ML" means MercadoLibre, Inc. or any of its affiliates.

"Purchased Services" means the Services that You purchase pursuant to an online Service Application Form or membership, after the expiration of the free trial.

"Services" means the "online" or Web-based applications and platform provided by VS through https://www.virtualseller.com, which You request as part of a 7-day free trial or on a Service Request Form, including associated "off-line" components, but excluding Third Party Applications.

"LICENSOR" means salesforce.com

"You" o "you" or "your" means the person who expresses consent by accepting the terms of this Agreement, whether for his or her own account or for the account of a corporation or other legal entity on behalf of which he or she accepts this Agreement. "Your Data" means any electronic data or information submitted by You.

"VS" , "We" o "We", "Us", "Our" or "Our" means Virtual Soft S.A., a company incorporated in the Oriental Republic of Uruguay with registered office at Colonia 810 Of 43, Montevideo, C.P. 11100, Department of Montevideo, Oriental Republic of Uruguay.

"Users" are persons who are authorized by You to use the Services, for whom subscriptions to a Service have been purchased and to whom You have provided user IDs and passwords (or to whom We have provided them to You at Your request). Users may include, without limitation, dependents, employees, employees, consultants, contractors, agents or third parties connected to You by any type of business, professional or personal relationship.