IT INFRASTRUCTURE MONITORING SOFTWARE
BUSINESS-TO-BUSINESS CONTRACTING ONLY
1.1. This Software License Agreement (“EULA” or “Agreement”) is entered into between [LICENSOR’S CORPORATE NAME], a private legal entity enrolled with the Brazilian Corporate Taxpayers’ Registry (CNPJ) under No. [CNPJ], with registered office at [ADDRESS] (“Licensor”), and the legal entity that accepts the terms below by clicking “I Accept,” completing registration, downloading, installing, or otherwise using the software (“Licensee”).
1.2. This Agreement is intended exclusively for business-to-business (B2B) contracting. The Software is not offered to individual end consumers, and its acquisition or use by an individual outside the scope of a business or professional activity is prohibited.
1.3. The Licensee represents, for all legal purposes, that it is contracting the Software in the exercise of its business activity, incorporating it as an input into its productive or operational chain, and not as a final consumer within the meaning of art. 2, caput, of Federal Law No. 8,078/1990 (Brazilian Consumer Protection Code — CDC):
“Art. 2. A consumer is any individual or legal entity that acquires or uses a product or service as an end user.” (Free translation of art. 2, caput, Law No. 8,078/1990 — Portuguese original prevails.)
1.4. The parties are presumed to be on equal and symmetrical footing, pursuant to art. 421-A of the Brazilian Civil Code (Law No. 10,406/2002, as amended by Law No. 13,874/2019):
“Art. 421-A. Civil and business contracts are presumed to be balanced and symmetrical, unless concrete elements are present that justify setting aside such presumption, subject to the legal regimes established under special laws, it being further guaranteed that: I – the contracting parties may establish objective parameters for the interpretation of the contractual clauses and their conditions for revision or termination; II – the risk allocation defined by the parties shall be respected and observed; and III – contractual revision shall occur only in exceptional and limited circumstances.” (Free translation — Portuguese original prevails.)
1.5. The risk allocation established in this Agreement — in particular the disclaimers and limitations of liability set forth in Sections 9 and 10 — constitutes an essential element of the contractual relationship and of the economic balance of this engagement, pursuant to item II of the article quoted above, and shall be interpreted and applied accordingly.
2.1. For the purposes of this Agreement, the following terms shall have the meanings set forth below:
a) Software: the IT infrastructure monitoring platform (servers, networks, endpoints, applications, and related services) made available by the Licensor under a [SaaS / on-premises / hybrid — to be specified] model;
b) Monitoring Data: the set of metrics, logs, events, IP addresses, traffic metadata, and other technical information collected by the Software from the Licensee’s infrastructure;
c) Personal Data: any information relating to an identified or identifiable natural person, including IP addresses and device identifiers when attributable to a natural person, within the meaning of art. 5, I, of Law No. 13,709/2018 (Brazilian General Data Protection Law — LGPD);
d) Monitored Environment: the IT infrastructure owned or managed by the Licensee, on which the Software will be installed or connected;
e) Indirect Damages: lost profits, loss of revenue, loss of business or business opportunities, data loss, loss of reputation or goodwill, and any consequential, incidental, punitive, or exemplary damages, regardless of their cause or the theory of liability invoked.
3.1. The purpose of this Agreement is the grant, by the Licensor to the Licensee, of a non-exclusive, non-transferable, and limited license to use the Software, intended for monitoring the availability, performance, and security of IT infrastructure.
3.2. Acceptance of this Agreement occurs through an unequivocal act by the Licensee — clicking “I Accept,” completing registration, downloading, installing, or actually using the Software — performed by a representative with authority to bind the Licensee entity, which constitutes valid and binding manifestation of intent regardless of physical signature.
3.3. The individual accepting this Agreement on behalf of the Licensee represents and warrants that they hold sufficient authority to bind the entity they represent, and shall be personally liable, as provided by law, for any excess or abuse of such representation.
3.4. If the Licensee does not agree with any provision of this Agreement, it must refrain from installing, accessing, or using the Software.
4.1. The Licensor grants the Licensee a personal, non-exclusive, non-sublicensable, and non-transferable license to use the Software, for the term of the engagement, intended exclusively for monitoring the Monitored Environment lawfully owned or managed by the Licensee itself.
4.2. Without the Licensor’s prior written authorization, the Licensee shall not:
a) assign, sublicense, rent, lend, or otherwise make the Software available to third parties, including entities within the same corporate group;
b) reverse engineer, decompile, or disassemble the Software, except where such contractual restriction is prohibited by applicable mandatory law;
c) use the Software to monitor infrastructure, devices, or networks belonging to third parties without their verifiable ownership or express authorization;
d) use the Software for unlawful purposes, including unauthorized surveillance of individuals or the collection of personal data in violation of the LGPD;
e) use the Software in any manner that compromises its integrity, security, or availability to other licensees, including through unauthorized penetration testing, denial-of-service attacks, or automated access inconsistent with the technical documentation.
4.3. The Licensee represents and warrants, under its sole responsibility, that it holds lawful and documented ownership or authorization over the entire Monitored Environment on which the Software is to be installed or operated, fully releasing the Licensor from any direct or indirect liability arising from unauthorized use of third-party infrastructure.
4.4. Breach of the representations in clause 4.3 constitutes a material breach of this Agreement, subjecting the Licensee to immediate termination, without prejudice to the indemnification obligations set forth in Section 10.
5.1. The Software, its source code, interface, documentation, trademarks, and other intellectual property elements remain the exclusive property of the Licensor or its licensors. This Agreement grants the Licensee no ownership rights whatsoever, other than the right of use established herein.
5.2. Any Monitoring Data generated from the Licensee’s Monitored Environment remains the property of the Licensee, with the Licensor holding only the right to process such data to the extent necessary to provide the service, as set forth in Section 7.
5.3. Suggestions, comments, or improvement ideas provided by the Licensee to the Licensor may be freely used by the Licensor, without compensation or royalty, unless otherwise agreed in writing.
6.1. The Licensor undertakes to:
a) make the Software available in operating conditions consistent with its then-current technical documentation;
b) adopt reasonable technical and administrative information security measures, consistent with the state of the art, to protect the Monitoring Data and Personal Data processed;
c) notify the Licensee, within a reasonable time, of security incidents that may pose a relevant risk or damage, pursuant to art. 48 of the LGPD;
d) provide technical support under the terms and limits set forth in a dedicated Service Level Agreement (SLA), where applicable.
7.1. The characterization of the relationship as B2B does not exclude the application of Law No. 13,709/2018 (LGPD), which protects natural persons regardless of the business nature of the contract between Licensor and Licensee. Pursuant to art. 5, X, of the LGPD:
“Art. 5. For the purposes of this Law: […] X – processing: any operation carried out with personal data, such as those related to the collection, production, receipt, classification, use, access, reproduction, transmission, distribution, processing, filing, storage, elimination, evaluation or control of information, modification, communication, transfer, dissemination, or extraction.” (Free translation — Portuguese original prevails.)
7.2. Given that the Software monitors IT infrastructure, it is possible that Personal Data may be incidentally collected or processed (e.g., end-user IP addresses, authentication logs, device identifiers). In such cases:
a) the Licensee generally acts as the controller of the Personal Data processed within its Monitored Environment, and the Licensor as the processor (“operador”), pursuant to arts. 5, VI and VII, and 39 of the LGPD;
b) the Licensor shall process such data exclusively for the purpose of providing the contracted service, in accordance with the Licensee’s documented instructions, and shall not use it for any other purpose;
c) the Licensee is solely responsible for ensuring an adequate legal basis for the processing of Personal Data within its own Monitored Environment, including with respect to employees, customers, and third parties whose data may be incidentally captured by the Software, and for responding, in its capacity as controller, to data subject requests pursuant to arts. 18 and 19 of the LGPD.
8.1. The Licensee undertakes to:
a) use the Software exclusively for the lawful purposes set forth in this Agreement;
b) keep any access credentials confidential, being fully liable for any use made through them, including by unauthorized third parties who gain access due to the Licensee’s own failure;
c) ensure that the Monitored Environment is under its lawful and documented ownership, management, or authorization, pursuant to clause 4.3;
d) comply with data protection legislation applicable to its own processing of data within the Monitored Environment, releasing the Licensor from liability for processing carried out under the Licensee’s own instructions or omissions;
e) maintain its infrastructure in conditions of minimum technical compatibility with the Software, as set forth in the then-current documentation.
9.1. The Software is provided “as is” and “as available,” without warranties of any kind, subject to the performance obligations expressly undertaken in Section 6.
9.2. To the maximum extent permitted by applicable law, the Licensor expressly disclaims any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third-party rights, without prejudice to the performance obligations of Section 6 and the exceptions set forth in clause 10.3.
9.3. The Licensor does not warrant that: (i) the Software will be uninterrupted or error-free; (ii) all events, failures, incidents, or anomalies in the Monitored Environment will be detected, notified, or correctly diagnosed; (iii) the Software is compatible with every possible infrastructure configuration of the Licensee; or (iv) any failures will be corrected within a specific time frame, except where expressly agreed in a dedicated SLA.
10.1. Under no circumstances shall the Licensor be liable to the Licensee or to third parties for Indirect Damages, as defined in clause 2.1(e), arising out of or related to the use or inability to use the Software, even if the Licensor has been advised of the possibility of such damages.
10.2. Subject to the exceptions in clause 10.3, the Licensor’s total and aggregate liability, for all causes related to this Agreement, shall not exceed the amount actually paid by the Licensee to the Licensor in the twelve (12) months immediately preceding the event giving rise to the damage.
10.3. The limitations in clauses 10.1 and 10.2 shall not apply to damages arising from: (i) willful misconduct or gross negligence of the Licensor; (ii) breach of the confidentiality obligations set forth in Section 11; (iii) infringement of third-party intellectual property rights by the Software as provided by the Licensor; or (iv) death or bodily injury directly caused by a defect in the Software, where technically applicable.
10.4. The Licensee undertakes to indemnify and hold the Licensor harmless from any losses, damages, costs, administrative fines, or attorneys’ fees arising from: (i) use of the Software in breach of this Agreement; (ii) breach of the representations in clause 4.3 regarding ownership of the Monitored Environment; (iii) the Licensee’s processing of Personal Data, in its capacity as controller, in violation of the LGPD; or (iv) any third-party claim related to the Licensee’s Monitored Environment.
10.5. Should any limitation or exclusion of liability under this Section be held, by a final and unappealable court decision, to constitute an invalid advance waiver of a right inherent to the nature of the transaction, pursuant to art. 424 of the Brazilian Civil Code, such limitation shall be automatically adjusted to the maximum extent permitted by such decision, preserving the validity of the remaining provisions of this Section and the risk allocation agreed in clause 1.5.
“Art. 424. In adhesion contracts, clauses that stipulate an advance waiver by the adhering party of a right inherent to the nature of the transaction are null and void.” (Free translation — Portuguese original prevails.)
11.1. The parties undertake to keep confidential any confidential information exchanged in connection with this Agreement, including Monitoring Data and technical information regarding the Monitored Environment, for the term of the Agreement and for [2/5 years — to be defined] thereafter, except with respect to trade secrets and legally protected information, whose confidentiality shall subsist for as long as they retain such nature.
12.1. This Agreement remains in force for as long as the contracted license subsists, automatically renewing unless otherwise provided in the applicable commercial plan or agreement.
12.2. The Licensor may suspend or terminate the Licensee’s access, upon notice, in the event of breach of this Agreement, in particular the prohibitions in clause 4.2 and the representations in clause 4.3.
12.3. The Licensee may terminate at any time, subject to the commercial conditions of the contracted plan, with no minimum commitment period.
12.4. Termination shall not release the Licensee from payment obligations already due, nor from the indemnification obligations under clause 10.4, which shall survive termination of this Agreement.
13.1. This Agreement may be revised and unilaterally amended by the Licensor at any time, upon prior notice to the Licensee at least thirty (30) days in advance, and continued use of the Software after such amendments take effect shall constitute tacit acceptance.
13.2. Should this Agreement be characterized as a contract of adhesion, ambiguous or contradictory clauses shall be interpreted in favor of the adhering party, pursuant to art. 423 of the Brazilian Civil Code:
“Art. 423. Where an adhesion contract contains ambiguous or contradictory clauses, the interpretation most favorable to the adhering party shall be adopted.” (Free translation — Portuguese original prevails.)
13.3. Neither party shall be liable for failure to perform an obligation resulting from an act of God or force majeure, pursuant to art. 393 of the Brazilian Civil Code:
“Art. 393. The obligor is not liable for losses resulting from an act of God or force majeure, if it has not expressly assumed liability for them. Sole paragraph. An act of God or force majeure is characterized by a necessary event whose effects were not possible to avoid or prevent.” (Free translation — Portuguese original prevails.)
13.4. The tolerance by either party of a breach of any provision of this Agreement shall not imply a waiver of the right to enforce it thereafter.
13.5. If any provision of this Agreement is held to be null or ineffective, the remaining provisions shall remain in full force and effect, and the null provision shall be replaced by another that most closely approximates its original economic purpose.
14.1. This Agreement is governed by the laws of the Federative Republic of Brazil.
14.2. The courts of the Judicial District of São Paulo, Capital of the State of São Paulo, Brazil, are elected to settle any disputes arising from this Agreement, to the exclusion of any other.
