This software-as-a-service usage agreement (“Agreement”) records: (a) the necessary conditions for you (“Licensee”) to enjoy the services provided by OPTIMAL TECNOLOGIAS E GESTAO LTDA, (“Optimal” or “Licensor”), through the license of the Optimal Labinfy software (“Labinfy,” “Platform,” or “Software”), exclusively owned by Optimal – available at optimal.com.br (“Site”), which includes the software program itself and may include associated physical media, as well as any printed and/or online or electronic documentation; and (b) the Licensee’s intention to license the Labinfy Software as a service, as specified below.

This means that by using the Labinfy Software on an experimental basis (for testing purposes) or permanently (by subscribing to the service), the Licensee accepts and spontaneously binds themselves to the conditions, terms, specifications, obligations, burdens, and responsibilities set forth in this Agreement, and must – like Optimal – observe and ensure its full compliance.

Consequently, if the Licensee disagrees with the content of these Conditions (in whole or in part), they must immediately cease the use of Labinfy.

In this context, the Licensee asserts:

– They have read, understood, and fully and spontaneously accepted the content of this Agreement, as well as the rights, obligations, and responsibilities arising from it, recognizing that the Agreement constitutes the complete agreement between the Licensor and the Licensee.

– They have read, understood, and fully and spontaneously accepted the content of the Privacy Policy available at https://optimal.com.br/en/privacy-policy, as well as the rights, obligations, and responsibilities arising from it, consenting freely, spontaneously, and expressly to the collection, use, storage, and processing in general of the information of personal data covered by this Privacy Policy.

– They acknowledge that transactions underlying their actions/behavior on the Optimal site, such as, but not limited to, the acceptance and/or termination of this Agreement, will be recorded in Optimal’s databases, along with the date and time they were performed by the Licensee, and such information may be used as evidence by the parties, regardless of compliance with any other formality.

– They acknowledge that, in any case, they must strictly comply with Brazilian legislation, especially regarding their tax, fiscal, labor, and social security obligations, whether primary or secondary in nature, as well as with applicable data protection and any other regulations. The user agrees and warrants that the Software, including but not limited to it, will not be construed as a use of the Software except as expressly provided in this Agreement.

– They are aware that the use of the Software as a service, the subject of the Agreement, will be governed by the rules of the Civil Code and relevant statutory law, including Law No. 9609/1988, which regulates the property and trade of computer programs in Brazil.

– They are aware that the proper use and enjoyment of the Software require the implementation, support, maintenance, and training of users.

Conscious of this, the Licensee spontaneously commits to observe and comply with the following.

1. OBJECT

1.1 This Agreement establishes that Optimal will provide the Licensee with Labinfy services, aimed at optimizing activities in the quality and laboratory sectors, through the granting of licenses for the use of the Software (“Services”).

1.2 – The hiring of Services will be done through the Optimal site, in provisional and free format (“Test”) or in definitive and paid format (“Plan”), and the conditions of each format are detailed on the aforementioned site https://optimal.com.br/en/plans-prices.

1.2.1 Two paid Plans are available for hiring: the “Basic Plan” and the “Pro Plan,” whose characteristics and conditions are detailed on the Optimal site https://optimal.com.br/en/plans-prices.

1.2.2 Once the desired Plan is selected, the Licensee will also select the Software usage mode, which can be in Optimal’s cloud or self-managed/on the Licensee’s premises (“Usage Mode”). This choice will define how Optimal deploys the Software, as well as the initial configuration of the Platform.

1.2.3 Upon completion of the Plan, the Licensor may, in order to improve the Software, add or remove features or functionalities of Labinfy. When incorporating new features into the Software, Optimal may readjust the amount of the respective remuneration originally contracted and/or create new Plans, according to prices and conditions detailed on the Optimal site https://optimal.com.br/en/plans-prices. If this occurs, the license holder will be notified.

1.3 To contract the Services, the Licensee must complete an electronic registration on the Optimal website, according to the Privacy Policy, choosing the hiring format (Trial or Plan) and, if applicable, the desired usage mode.

1.4 In the case that the Licensee opts for the self-managed infrastructure (“On-Premise”), the Licensee must hire initial implementation services, including the initial and personalized configuration of the Software, with a scope to be negotiated with Optimal for each contract.

1.5 In addition to hiring Plans, the Licensee may hire Implementation services, which include training on the use and configuration of the System, with a scope to be negotiated with Optimal for each contract.

1.5.1 After subscribing to any Cloud Usage Plan, Optimal will offer the Licensee, free of charge, a single training session for the use of the Software, through a presentation by a technician appointed by Optimal (“Free Training”).

1.5.1.1 Free Training must be activated by the Licensee within the first 90 (ninety) calendar days of the Plan, under penalty of definitive loss of the right to Free Training.

1.5.2 If the Implementation Service is not used in its entirety, there will be no refund of amounts paid or granting of any future credit.

1.6 Optimal will provide the Licensee (and end users of the Software) with free professional technical support services for the use of Labinfy, for solving issues related to the operation of the Platform (“Support”).

1.6.1 Support can be activated through the channels described below, available from Monday to Friday, from 8:00 a.m. to 6:00 p.m., except on holidays (“Support”):

(i) WhatsApp +19 9 9797 4003

(ii) Email address [email protected]

1.7 Optimal reserves the right to modify, suspend, or interrupt the Software at any time at its sole discretion, without prior notice. However, Optimal does not guarantee the achievement of any specific, economic, or business results by simply using the Software, and the provision of Services constitutes an obligation of means and not of results.

1.7.1 The registration and input of the data/information necessary for the calculations and formulas presented by the Software will be the exclusive responsibility of the Licensee, who will be solely responsible for the correctness and accuracy of the data/information entered into Labinfy.

2. OBLIGATIONS OF THE PARTIES AND WARRANTIES

2.1 In addition to the obligations already established in this Agreement, the Licensee undertakes to:

– Strictly observe the Payment Policy available at https://optimal.com.br/en/payment-policy-labinfy/.

– Strictly observe the instructions and guidelines for using the Software, as presented by Optimal in this Agreement and/or in any other format.

– Promptly notify Optimal of any leaks and/or incidents of any nature with personal data, related or not to the use of the Software, that may compromise and/or affect, directly or indirectly, the provision of Services and/or Optimal’s assets.

2.2 Optimal guarantees the Licensee that Labinfy will function regularly if the conditions of use established in this Agreement are met. In case of errors in the Software, Optimal is obliged to correct them and may, at its sole discretion, replace the copy of the Software with errors with corrected copies.

2.3 For the Cloud Usage Mode, Optimal will make commercially reasonable efforts to ensure that the Software is available at least ninety-nine percent (99%) during each Service Year (as defined below) (“Service Level Commitment”). If the Licensor fails to meet the Service Level Commitment, the Licensee will be entitled to receive a credit corresponding to one (1) month’s remuneration or one twelfth (1/12) (for Annual Plans), as provided on the Optimal website (https://optimal.com.br/es/planes-precios) (“Service Credit”).

2.3.1 For a “service year,” the 365 (three hundred sixty-five) days prior to the date of a claim related to that service level shall be understood (“Service Year”). Thus, if the Licensee uses the Software for a period of less than three hundred sixty-five (365) days, the corresponding Service Year will still be considered as the 365 days prior; however, the days prior to the use of the Services will be considered as one hundred percent (100%) availability. Downtime periods that occur before a successful service credit request cannot be used for future requests.

2.3.2 The Service Level Agreement will not apply if the unavailability circumstances result from:

– Power supply interruption or emergency stops not exceeding 2 (two) hours or occurring between 12:00 a.m. and 6:00 a.m. (Brasília time);

– Events caused by factors beyond the reasonable control of the Licensor, including force majeure or access to the Internet and related issues;

– Any acts or omissions of the Licensee, third parties, or third-party applications;

– Equipment, software, or other technologies used by the Licensee preventing regular access to the Software;

– Failures of individual instances not attributable to the unavailability of the Licensee;

– Network management practices that may affect its quality.

2.3.3 The Service Level Agreement will be conditioned on the correct and accurate input of data/information into the Software by the Licensee and/or persons designated by them, and on the correct installation and operation of the Software on a hardware platform of suitable origin and within the minimum configuration required by us.

2.3.3.1 The Service Level Agreement does not cover failures due to the incompatibility of the Software with the computer’s operating system or browser on which the Software is installed, nor does it cover failures, errors, damages, and/or losses derived from the natural obsolescence of the Software, nor the inaccuracy and/or incorrectness of the information and data entered into the Software by you, nor, furthermore, acts of third parties committed by your negligence, recklessness, or lack of skill in using the Software.

2.4 In addition to the obligations already established in this Agreement, Optimal will continue to be obligated to maintain the confidentiality of all information and/or data to which it has access due to the provision of Services, as provided by our Privacy Policy (https://optimal.com.br/en/privacy-policy).

3. VALIDITY PERIOD AND TERMINATION

3.1. The provision of Services and the duration of this Agreement:

– Begins on the date of the Licensee’s acceptance of the Agreement and remains in effect during the term of the Plan contracted by the Licensee.

– The Licensee may terminate this License Agreement at any time by notifying Optimal.

– Shall be terminated by the mere interruption of payment and/or by signaling the intention to terminate the contract, as outlined in the Payment Policy, with twenty (20) natural days’ notice before the scheduled date for the next billing of the corresponding fee. In this case, no amount paid by the Licensee to the Licensor will be refunded, even in cases of annual contracts.

4. PRICE AND PAYMENT

4.1. The Licensee shall pay Optimal for the provision of Services at the price specified in the Payment Policy available on the Optimal website [https://optimal.com.br/en/payment-policy-labinfy/], under the conditions equally established by said Policy, based on the Plan chosen by the Licensee.

5. SOFTWARE OWNERSHIP

5.1. The Software is the exclusive property of Optimal, and from the date of execution of this Agreement, the Licensee, as well as Software users and third parties linked to it, are prohibited from:

– Assigning, selling, leasing, or pledging, donating, alienating in any way or manner, or transferring the Software, in any of its modalities, for free or for consideration, temporarily or permanently, without the prior and express authorization of Optimal, as well as its manuals, training, and/or any information related to the Software.

– Modifying, updating, using as a basis for the development of other software, expanding or altering in any way, without the prior written consent of Optimal, the features of the Software and/or the source codes and/or code libraries related to the Software, understanding that any change, at any time, that needs to be made to the Software can only be made by Optimal.

– Using the Software for purposes other than those for which the Services have been contracted.

6. IMMEDIATE AND AUTOMATIC INTERRUPTION OF SERVICES DUE TO NON-PAYMENT

6.1. The Services will be automatically and immediately terminated by Optimal, by operation of law, if the Licensee does not pay the price specified in the Payment Policy and/or breaches any of the obligations set forth in this Agreement and/or its Annexes, especially, but not limited to those provided in Section 5. “b” of this Agreement, or in Brazilian legislation, or, additionally, in case of bankruptcy, suspension of payments, and/or liquidation of any of the Parties (“Automatic Termination”).

6.1.1. The cumulative liability of the Licensor to the user or any other party for any loss or damage resulting from any claim, demand, or action arising from or related to this Agreement will not exceed the purchase price paid to the Licensor for the equipment.

7. LACK OF EXCLUSIVITY

7.1. The cumulative liability of the Licensor to the user or any other party for any loss or damage resulting from any claim, demand, or action arising from or related to this Agreement will not exceed the purchase price paid to the Licensor for the equipment.

8. PENALTIES

8.1. Except in the case of the interruption of payment of the price (which will not generate any penalty), in all other cases of Automatic Termination, especially but not limited to Automatic Termination due to non-compliance with point 5. “b” of this Agreement, the defaulting party must pay the innocent party the equivalent of 100% (one hundred percent) of the value of the contracted Plan, as a penalty (“Penalty”), without prejudice to compensation for damages of any nature, loss of profits, and emergent damage, in a single installment, by bank transfer of the amount to the current account of the innocent Party, which will be duly indicated, within ten (10) business days from the date of receipt of the extrajudicial notification that the innocent Party will send to the defaulting Party specifically for this purpose.

8.1.1 Unauthorized reproduction or misuse of the Software by you or any other violation of our rights related to the License and authorizations subject to the Agreement will also result in Automatic Termination and the consequent Penalty, without prejudice to the following measures to be complied with by you:

i. Pay Optimal double the License price for each unauthorized access to the Software issued, distributed, used, and marketed, or not, in the market, observing the deadlines and conditions of payment provided for in item 8.1;

ii. Reimburse Optimal, for losses and damages due to the violation of proprietary rights, the amounts determined by it at the time, in a suitable judicial action, based on the market value of each copy of the Software, observing the deadlines and conditions of payment provided for in item 8.1.

9. NOTIFICATIONS

9.1. Non-judicial notifications provided by the Agreement (“Communications”) shall be in writing and sent via email, with acknowledgment of receipt and read confirmation, to the email address and the designated individuals below:

Attention: Marcia de Almeida Prado Amaral

Email: [email protected]

Legal: [email protected]

9.2. Communications delivered in accordance with the above point shall be deemed received on the date the email is sent to the email addresses indicated above, and the Parties shall be responsible for updating such information whenever necessary.

9.3. You agree not to assign, sublicense, transfer, pledge, lease, rent, or share your rights under this Agreement.

9.3.1 As a consequence of the provision in section 9.3, the Licensee undertakes to always keep their registration details with Optimal updated and valid, to ensure that notifications and communications resulting from the provision of Services occur effectively and validly. Communications sent by Optimal to the addresses and other channels registered by the Licensee in Optimal’s database shall be considered delivered.

10. SUBCONTRACTED PROCESSORS

10.1. Optimal shares information regarding our users with selected third parties who provide a variety of services supporting the delivery of our services (“Third-Party Processors”). These third-party processors range from technical infrastructure providers to customer service and authentication tools. We will ensure that information management performed on our behalf by Third-Party Processors is done in accordance with this Statement, the Privacy Policy, and the legislation protecting personal data in Brazil.

10.2. Third-party processors may be located or process Licensee information outside of Brazil. When our use of third-party processors involves the international transfer of personal data, we will take steps to ensure that personal data is adequately protected.

10.3. Types of third-party processors with whom we may share personal data include:

i. Payment processors operated by us to securely store or manage payment information, such as credit or debit card details.

ii. Email management providers and distribution tools, which may be engaged if the Licensee chooses to receive email notifications of released samples, for example, or other systemic messages for the correct use of the Software.

iii. Security and fraud prevention service providers, engaged by Optimal to identify automated software agents that may harm the Services or to prevent misuse of our APIs.  

iv. Software platform providers that assist us in communication or customer service management.

v. Online cloud storage service providers and other essential IT services.

11. GENERAL PROVISIONS

11.1. This Agreement binds the Licensee and its successors in any capacity, with the transfer of rights and obligations arising from it expressly prohibited.

11.2. At any time, without prior notice, Optimal may appoint an employee, agent, or legally constituted professional to audit the use of the Software to certify compliance with the provisions agreed upon in this Agreement.

11.3. All rights provided in this Agreement and under current legislation are cumulative and optional, and the non-exercise of any of them shall not prevent the Parties from exercising them at any time, even after the termination of the Agreement.

11.4. The tolerance or omission of the Parties regarding the non-compliance with the deadlines and obligations established in this Agreement shall not be considered a waiver of the rights established therein, nor a forgiveness or contractual novation, and the tolerant Party may demand from the other Party the full compliance with each of the stipulations of this Agreement.

11.5. The eventual invalidity, nullity, or unenforceability of any clause or provision of this Agreement shall not affect the others, which shall remain valid and enforceable.

11.6. The advance performance by the Parties of any obligation provided for in this Agreement shall not give rise to the early fulfillment of the obligations of the other Party.

11.7. In case of discrepancies between the content of the Conditions and their Annexes and other related documents, what is determined in these Conditions shall prevail.

11.8. This Agreement may be modified from time to time at the discretion of Optimal. However, Optimal guarantees that such eventual changes will not diminish the rights of the Licensee without their consent. Optimal will always indicate the dates of changes on its website and make available to users permanent versions of this Agreement. If the changes are significant, Optimal will highlight a notice on our website and send the Licensee an email notification, all for the purpose of publicizing and providing visibility to such changes.

11.9. Any dispute arising from the interpretation of the Agreement or related to the provision of Services shall be resolved in the courts of the Campinas District, State of São Paulo, Brazil.