Probanx®– General Terms and Conditions
CorePlus Solution License or PayPlus Solution License and / or CoreConnect SaaS / Solution License.
These General Terms and Conditions are attached to, or entered into in connection with the execution of, an agreement or agreements (the “Agreements”) containing specific purchase terms of products or services sold by Probanx Solutions Ltd (Cyprus) or UAB Probanx Solutions (Lithuania) each referred to herein as applicable as the “Company” or “Probanx”. The different products and services being purchased from the Company may include any of the following: cloud setup, equipment purchases, hardware maintenance (for equipment purchased from the Company or from third parties), Solution Licenses, Solution support, and other services. Only the provisions of these General Terms and Conditions that, as the context indicates, relate to the specific products or services being purchased pursuant to each Agreement apply to that Agreement.
The Miscellaneous provisions apply to all Agreements.
The language of the agreement, all documentation and all software and services provided under the Agreement, shall be in English.
2. Timely Disclosures
(a) The Company advises that it has timely disclosure obligations as part of its compliance requirements to maintain its securities exchange listing.
(b) The Company may, without notice, disclose the existence of any executed agreement, the names of the parties, the scope in outline, the value over the term, and, other such details which may reasonably made public that are not confidential in nature or are required to be disclosed by regulation.
(c) If, for whatever reason, the names of the parties are to be withheld, then written notice shall be provided contemporaneous with execution of this agreement, such that the disclosure, if any, may be drafted and issued excluding the party’s names.
(d) The Company shall not at any time disclose any information that is deemed confidential under this agreement, or confidential under any separate non-disclosure agreement, unless required to do so by law, regulation or court order.
3. Solution Agreements:
3.1 Scope of License:
The Probanx® Solution is a copyrighted Solution product developed and owned by the Company (the “Solution”). All rights are reserved worldwide. Licensee shall not sell, lease, copy, distribute, transfer, assign or sublicense the Solution to any third party. Licensee will make no more than two (2) copies of the Solution for backup and archival purposes and may make no copies for any other purpose. Licensee is responsible for maintaining backup copies of the Solution. The Solution is licensed for use in a cloud or on premises Location in appropriate servers, and on individual computers and individual network workstations. Licensee may change the location at which the Solution is used only after written notification to the Company specifying the new location. The license granted hereby shall commence upon the delivery of the Solution and shall continue until terminated in accordance with the terms contained herein.
3.2 Limited Warranty:
(a) The Company’s obligation under the Solution License Agreement shall be to correct the Solution to perform as specified in the user level documentation provided with the Solution. If the Company delivers to Licensee written notice that the Company is unable, after reasonable efforts to correct the Solution as required hereby, Licensee may either retain the Solution in its then current condition or terminate the Solution License agreement and receive a refund of all charges actually paid by Licensee to the Company. In order to terminate the Solution License Agreement as provided in this paragraph, Licensee must provide written notice to the Company of its intent to do so within thirty (30) days after receiving written notice from the Company that the Company is unable to make the required corrections. In the absence of such notice, Licensee shall be deemed to have elected to retain the Solution in its then current condition.
(b) The Company shall use due care in providing the Services hereunder in a professional manner, but recognizing that such Services involve certain possibilities of errors, omissions, delays, loss or mutilation of documents and other occurrences which may give rise to loss or damage. The Company’s responsibility in the event of any such defects, errors or omissions shall be limited to the correction of any errors which are due to mistakes by employees of the Company or to the malfunction of the Company’s Solutions.
(c) The Company shall not be held responsible for the correctness and integrity of the data stored or produced by the Solution where such resultant data relies upon Licensee data and/or configuration. It is the responsibility of Licensee to establish proper procedures to verify the correctness and integrity of the data entered, stored or produced by the Solution and to provide for backup methods for Licensee’s data. Failure on the part of the Licensee to establish proper procedures to store data shall in no way constitute any type of liability or breach of agreement on the part of the Company.
(d) Altering, modifying, maintaining or servicing the Solution by anyone other than the Company shall relieve the Company of any obligation under the Solution agreement. The Company shall have no liability for any failure of the Solution due to the failure of Licensee to use the Solution in accordance with the documentation provided by the Company or if the Solution is not workable because of the malfunction of Licensee’s supplied hardware or operating system or the failure of such Licensee supplied Environment or operating system to perform as represented, or for any other cause beyond the Company’s control.
(e) the Warranty Period will begin on the date of installation of the Solution at the Location and continue as long as the licensee provides payment for Service and Support. However, Probanx® shall charge a reasonable fee to provide corrections to the Licensee where Probanx® finds and demonstrates, or where the Licensee admits, that the non-performance of the Solution is caused by Licensee’s unauthorized changes or adjustments to the Solution, or by use on Environment not performing in accordance with the Probanx® specification.
(f) in the event of termination of this agreement by Probanx®, and where such termination follows the full payment by the Licensee of the Implementation and License Fees according to the relevant agreement clause, Probanx® hereby irrevocably undertakes and warrants that it shall switch off the License mode thus allowing the Licensee to operate the Solution without the requirement for Solution license updates.
(g) THE COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES FOR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSEE HEREBY EXPRESSLY WAIVES ANY CLAIMS AGAINST THE COMPANY FOR LOSS, INJURY OR DAMAGE OF ANY KIND, DIRECTLY OR INDIRECTLY RESULTING FROM LICENSEE’S USE OF THE SOLUTION OR FROM ANY DEFECTS THEREIN, EXCEPT FROM DEFECTS FROM THE AGREED UPON FUNCTIONALITY AND OTHERWISE AS PROVIDED HEREIN AND EXCEPT FOR CLAIMS ARISING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE COMPANY, ITS OFFICERS AND EMPLOYEES.
(h) NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE COMPANY MAKES NO WARRANTY WITH RESPECT TO (1) SERVICES PROVIDED OR ORIGINATED BY THIRD PARTY OR OTHER VENDORS WHICH ARE PASSED THROUGH BY THE COMPANY, (II) ANY SERVICES NOT PROVIDED DIRECTLY BY THE COMPANY, OR (III) ANY EQUIPMENT WHICH IS BEING PURCHASED BY THE LICENSEE FROM SOURCES OTHER THAN THE COMPANY.
3.3 Rights to Solution; Indemnification of Licensee:
The Company warrants that it has the right to grant the license to use the Solution herein granted. The Company will indemnify and save the Licensee harmless from and against any and all liabilities, losses, costs or expenses including reasonable attorney’s fees which may result by reason of infringement or claim of infringement of any granted patent or copyright or any trade secret or proprietary right of any other person by the Solution or any part thereof, and the Company shall defend or settle, at its own expense, any claim, action or suit against the Licensee so far as the same may be based on an allegation of infringement of any such right. The Company’s obligation hereunder shall be subject to the Licensee’s prompt notification of the Company in writing of any notice of such claim, action or suit and the Company being given reasonable information and assistance for defence of such claim, action or suit, and the Company’s right to sole control of the defence thereof and all negotiations for settlement or compromise. If the Licensee’s use of the Solution or any part thereof is prevented by injunction or court order because of a purported infringement, the Company will, at its election, provided that the Licensee is not in default of any payment obligations hereunder, at no cost or expense to the Licensee either (a) replace the Solution with a functionally equivalent system which is free of infringement, (b) modify the Solution so that it becomes non-infringing, (c) procure for the Licensee the right to continue using the Solution, or (d) promptly remove the Solution from the place of installation and refund to the Licensee all sums paid for the Solution by the Licensee during the preceding twelve (12) month period. The remedies set forth in this paragraph 3.3 shall not apply if any infringement or claim of infringement of a United States patent or copyright or trade secret or proprietary right of any other person is due to the Licensee’s design, modification of the Solution by the Licensee, or use of the Solution in combination with equipment or Solution not provided or approved by the Company and such infringement would not have existed but for such design, modification or combination. The remedies set forth in this paragraph 3.3 constitute the sole obligation of the Company under the warranty contained in this paragraph 3.3.
3.4 Indemnification of the Company:
Licensee shall indemnify, defend and hold harmless the Company, its employees and representatives from and against any and all claims, causes of action, liabilities, damages, judgments, costs and expenses (including attorneys’ fees) of every kind whatsoever, whether known or unknown, absolute or contingent, which the Company may incur or be subject to or caused by the improper or negligent use of the Solution by the Licensee or any person or entity that obtained the Solution from the Licensee.
The Company shall indemnify, defend and hold harmless the Licensee, its employees, representatives and other users of the Solution who gained access from the Licensee or based upon its license, from and against any and all claims, causes of action, liabilities, damages, judgments, costs and expenses (including attorneys’ fees) of every kind whatsoever, whether known or unknown, absolute or contingent, which the Licensee may incur or be subject to or caused by intellectual property violations on part of the Company, its employees, contractors or agents, in connection to the Solution
(a) The entire right and title to the Solution shall remain with the Company, and the Company has the right to protect by copyright or otherwise, to reproduce, publish, sell and distribute the Solution to anyone. The Licensee shall place on each copy or reproduction of the Solution and on documentation related thereto the identical notice contained on the Solution furnished by the Company to the Licensee. Any alterations, corrections, enhancements or improvements of the Solution made by the Company shall be the property of the Company and subject to the terms and conditions of the Solution Agreement. Licensee shall not make any modifications to the Solution or reverse assemble or reverse compile the Solution, and any modifications made by Licensee in violation of this provision shall be the exclusive property of the Company.
(b) Licensee shall not disclose to any person or entity other than to its authorized employees the Solution and documentation delivered hereunder. Licensee shall use its best efforts to prevent its employees and such other persons as come in contact with the Solution and documentation from making any such disclosures. The provisions of this Section may be enforced by injunction or other equitable relief, and the parties do hereby specifically recognize that the Company has no adequate remedy at law in order to compel the enforcement of the provisions of this section.
3.6 Solution Support:
The Licensee agrees to pay the Support Fees. The Company may, at its sole discretion, de-activate License Mode for persistent failure by the Licensee to make payment.
The Support Fee’s include for the Company to provide to the Licensee improvements or enhancements as these are developed for the Solution as part of the Monthly Licensing and Support Fees. Program improvements or enhancements shall mean changes to the programs furnished as part of the Solution which result in the correction of program errors, more efficient processing, a reduction in memory requirements, or procedural changes to allow more effective use of the Solution.
The Company shall use reasonable efforts to correct any errors in the Solution that are reported to the Company in writing during the term of the Solution Agreement, provided such errors can be recreated with the Company’s then current version of the Solution. As a minimum, the Company shall provide phone support during normal Company business days in Cyprus or Lithuania, Monday through Friday from 8:30 a.m. until 5:30 p.m. Eastern European Time. Additional support, if any, shall be incorporated into Service Level Agreements.
The Support Fee and Solution support excludes support required to recover data following Licensee’s failure to backup system and excludes support required to install or change any Solution or Environment, such as a new method of download. These are not to be considered the only exclusions to Solution support, including but not limited to On-site services, consulting, and integration to third party applications, which are also not included in the Support Fee. In the event the Licensee should desire any additional support services relating to the Solution, the Licensee should agree the requirements with the Company in advance. The Company will provide a quotation wherever possible, or the Licensee will be billed at the Company’s then prevailing time and materials rates and travel and lodging reimbursement cost if it agrees to proceed.
Excluding the Initial Term of the Agreement, all fees, including Support Fee and Services fees for personnel shall be indexed annually to the higher of i) one point five percent (1.5%) or ii) the OECD Consumer Price Index (All Items, Annual Change) as published at https://stats.oecd.org/Index.aspx?DataSetCode=PRICES_CPI for the latest year.
3.7 SAAS Support Services and SAAS Updating
3.8 Delivery and Installation:
The Solution will be delivered to the Licensee at the time and location designated by the parties or, if the necessary computer equipment and an appropriate installation environment are not available at such time, as soon after such time as the equipment and environment are available as is reasonably practicable. The Company shall remotely install the Solution, but it shall be the responsibility of the Licensee to provide an appropriate and adequate physical or cloud environment, including satisfying compliance and security requirements, remote access, and third party assessments and certifications.
The SaaS will usually be provided as a fully managed service on Company’s Environment, or in exceptional circumstances as a hybrid utilising the Licensee’s HSM/Cryptography module remotely located to the SaaS, or, as a Licensed install on Licensee’s Environment, as may be specified in the specific Agreement pertaining to any Solution(s). In all cases however, the clearing account shall be established at the Central Bank of Lithuania or other agreed.
The Licensee shall provide Probanx with the information and/or data necessary and/or sufficient for Probanx to provide Initial Services and other Services;
3.9 Data Migration
The Parties agree that, if necessary, migration of data from the programs and/or other information systems (used by the Licensee before entering into the Agreement) to the SaaS shall take place at a mutually agreed time, and shall not impede delivery of the SaaS, Solution or Service by Probanx.
The Licensee undertakes to take every reasonable commercial effort to complete data migration in the shortest period possible from availability of the SaaS, Solution or Service.
Data migration is not within the scope of the Agreement, and all migration shall be charged at daily rates following a written variation to the Agreement.
3.10 User Acceptance Testing
a) User Acceptance Testing (UAT) shall be scheduled at a mutually agreed commencement date, for a period of (unless otherwise mutually agreed in writing):
The UAT shall involve suitable personnel from the Licensee and the Company, and shall test core features and modules to the satisfaction of the Licensee, to ensure that the Solution or SaaS is free of errors and bugs.
Following the UAT, the parties shall cooperate to identify and resolve any errors or defects via reasonable commercial endeavours. With the exclusion of any bugs or defects that inhibit correct operation of the Solution, any requirements (including any further integration) raised beyond the UAT period shall be at the Licensee’s cost and charged per the hourly or daily fee schedule
Licensee shall not be obligated to make payment of any additional fees until bugs or defects that inhibit correct operation are corrected and all services are provided to agreed service level.
b) The Company is not responsible for certification testing to third party requirements. Any such testing or assistance with such testing shall be charged on a daily rate basis.
Probanx undertakes to provide the Licensee with sufficient information to be able to use the Services on the terms stipulated in the Agreement and descriptions in any Annex to Agreement.
CorePlus – standard training for CorePlus and each module is included within each Agreement, and is usually at the Licensees premises (subject to any travel restrictions). Further training is available at any point with fees to be agreed based upon requirements. Where travel restrictions apply, training shall be provided by electronic means of audiovisual transmission.
CoreConnect / SaaS - If requested by the Licensee, Probanx shall conduct a onetime remote (online) training course (up to 8 hours, which may be recorded) for the Licensee sufficient to provide adequate knowledge and understanding of the SaaS and Services. The course will be provided by electronic means of audiovisual transmission. The information and training referred to herein shall be provided and conducted no later than within thirty (30) days from the Access to the SaaS. No additional fee shall be charged for above-mentioned course.
4. Service Agreements:
(a) The parties hereto agree not to employ, make an offer of employment to, or enter into a consulting relationship with any employee of the other party who is in any way involved with the performance of the services to be provided hereunder while such employee is employed by the other party or for one (1) year after the termination of such employment, except upon the prior written consent of the other party. The obligations of the parties specified in this Section 4.1 shall survive the expiration or termination of any agreements for provision of Solutions between the Company and Licensee.
(b) The Company may subcontract any or all of the Services to third parties and may use independent consultants or other contractors to assist it in the Services, subject to prior written approval from the Licensee, which approval will not be unreasonably withheld. Services supplied by third party vendors shall be subject to the terms and conditions of the Service Agreement and these Terms and Conditions as if supplied by the Company.
4.2 SaaS Service Level Agreement
(a) The Company shall use due care in providing the services hereunder in a professional manner, but recognizing that such services involve certain possibilities of errors, omissions, delays, loss or mutilation of documents or data and other occurrences which may give rise to loss or damage. The Company’s responsibility in the event of any such defects, errors or omissions shall be limited to the correction of any errors which are due to mistakes by employees of the Company or to the malfunction of the Company’s Solutions.
(b) While an effort has been made to provide accurate and complete services and products, the Company makes no warranty or guarantee, express or implied, about the accuracy, completeness or correctness of the services, products or Solution provided under this Agreement and expressly disclaims all warranties, including without limitation, warranties of merchantability and fitness for a particular purpose. IN NO CASE, SHALL THE COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, CAUSED AS A RESULT OF THE PRODUCTS OR SERVICES PROVIDED HEREUNDER.
(c) NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE COMPANY MAKES NO WARRANTY WITH RESPECT TO (I) SERVICES PROVIDED OR ORIGINATED BY THIRD PARTY OR OTHER VENDORS WHICH ARE PASSED THROUGH BY THE COMPANY, (II) ANY SERVICES NOT PROVIDED DIRECTLY BY THE COMPANY, OR (III) ANY EQUIPMENT WHICH IS BEING PURCHASED BY THE LICENSEE.
4.4 Default; Termination:
(a) Either party may terminate the Service Agreement in the event of a material breach by the other party that is not cured within ninety (90) days following written notice of breach, such notice specifying the nature of the breach with reasonable explanatory information.
(b) Unless sooner terminated pursuant to Section 4.4(a) above, the Company may terminate the Service Agreement by delivery of written notice to the Licensee upon the occurrence of any of the following:
(1) the Licensee shall fail to pay any amounts due to the Company hereunder within thirty (30) days after written notice from the Company; or
(2) a receiver, liquidator or trustee for the Licensee is appointed by a court or regulatory authority with jurisdiction over the Licensee and such order stays in effect for thirty (30) days or more, the Licensee is adjudicated bankrupt or insolvent or is taken over by a regulatory authority; or a petition is filed against the Licensee or voluntarily by the Licensee under any bankruptcy, reorganization, insolvency, dissolution or liquidation statute of any jurisdiction, whether now or hereafter in effect, and is not dismissed within thirty (30) days after such filing; or the Licensee ceases to do business, makes an assignment for the benefit of creditors or is unable or admits its inability to pay its debts when they mature.
(c) Unless sooner terminated pursuant to Section 4.4(a) above, the Licensee may terminate the Service Agreement by delivery of written notice to the Company if a receiver, liquidator or trustee for the Company is appointed by a court, and such order stays in effect for thirty (30) days or more; the Company is adjudicated bankrupt or insolvent or a petition is filed against the Company or voluntarily by the Company under any bankruptcy, reorganization, insolvency, dissolution or liquidation statute of any jurisdiction, whether now or hereafter in effect, and is not dismissed within thirty (30) days after such filing; or the Company ceases to do business, makes an assignment for the benefit of creditors or is unable or admits its inability to pay its debts when they mature.
(d) No termination pursuant to any of the provisions of this Section 4.4 shall relieve either party of its respective obligations to the other hereunder that arose prior to the effective date of termination. In the event that the Licensee shall default for failure of payment, the Company may retain all of the Licensee’s information in its possession until receipt of full payment and interest thereon. The provisions of this Section 4.4 shall not be in limitation of any other right or remedy available at law or in equity to the non‑defaulting party.
(e) If the Service Agreement is terminated pursuant to Section 4.4(b) above or for any reason other than the material breach of the Service Agreement by the Company in the manner described in Section 4.4(a), all remaining payments for the full remaining term of the Service Agreement shall immediately become due and payable. The Licensee shall indemnify the Company for all costs and expenses incurred in connection with any collection activity required to collect any payments under the Service Agreement, including legal fees and expenses.
(f) In addition to above mentioned termination clauses Licensee may terminate this Agreement immediately and without any repercussions in the event that (i) the Company has breached material terms of this Agreement or applicable law(s); or (ii) it is requested to terminate this Agreement by competent authority;
(g) In in case of the insolvency or liquidation of the Company, it shall ensure any data owned by the Licensee shall be securely transferred to Licensee.
In the event of Termination for whatever reasons, the Company shall collaborate in good faith at the reasonable direction and cost of the Licensee, in order to transfer such Licensee’s data as is required to be transferred, into a standard or agreed format;
The Licensee acknowledges that they have read and understood these terms and conditions, and that the person executing has the authority to, and by executing either the Equipment Purchase Agreement (if any), the Cloud Establishment and Maintenance Agreement (if any), and the specific Agreement for any Solution (individually referred to herein as the “Agreement”) and these General Terms and Conditions do bind the Licensee to the terms hereof. The Agreement(s) and these Terms and Conditions and any related agreements executed simultaneously herewith are the complete and exclusive statement of the agreement between the parties, which supersedes all proposals oral or written and all other communications and prior agreements between the parties relating to the subject matter of the Agreement(s) and these Terms and Conditions. The terms of the Agreement(s) and these Terms and Conditions may not be amended, modified or rescinded except by a written instrument signed by both parties.
In the event any provision of the Agreement is or becomes invalid, it shall not invalidate the Agreement and/or the remaining provisions thereof. In such case the Parties agree to substitute the invalid provision with another provision that comes closest to expressing the legal, technical and/or economic result.
Variations to Scope of Agreement: Any customization of or change to any of the SaaS, Solution or Services, including the addition of new functions/modules, other upgrades, reinstallation/redeployment (including to accommodate new Environment or operating systems) and/or add-ons to the SaaS, Solution or Service shall be subject to additional charges on the basis of a separate written variation arrangement between the Parties. In such cases, the updating, upgrading, re-installation and/or modification to the SaaS, Solution or Service will follow receipt of the Licensee’s written acceptance of the variation.
Company shall inform Licensee in advance on any major changes that may impact provision of services.
5.2 Proprietary Rights:
(a) Any ideas, concepts, know-how or techniques relating to the products and services provided hereunder or developed in connection with said products or services used by the Company during the course of the Agreement(s), including without limitation, Solution programs, screen layouts, graphics, report formats and user manuals shall be the exclusive property of the Company. The Licensee agrees to treat such information as intangible proprietary information of the Company, intellectual property, and a trade secret and to use reasonable care in maintaining the confidentiality of such information. The Licensee shall not acquire any economic or moral rights to the SaaS except for the right to use the Services for Licensee’s business purposes in the manner and methods stipulated in this Agreement.
(b) All proprietary rights relating to any data, text or other items delivered or transmitted to the Company by the Licensee, including trademarks, trade-names, service marks and other proprietary items of the Licensee shall remain the exclusive property of the Licensee. The Company agrees to treat such information and items as proprietary to the Licensee.
(c) No ideas, information, documentation or other material submitted by the Licensee for use by the Company in connection with the Agreement(s) will violate any copyright, trademark or patent or infringe on any proprietary right. The Licensee will hold the Company harmless from and will defend any action alleging the infringement of such rights that may be brought against the Company by reason of the Company’s use of any such ideas, information, documentation or other material provided by the Licensee. The Company shall have the right to refuse to use any idea, information, documentation of other material provided by the Licensee which the Company shall, in its sole discretion, consider to violate any copyright, trademark, patent or other proprietary right.
(d) The Licensee shall have no proprietary rights in or to any Solution, documentation, materials or other items that are part of or related to the Services to be provided by the Company hereunder, whether owned by the Company or owned by third party vendors and provided to the Licensee by the Company. The Licensee shall not attach, challenge or contest the Company or any third party’s proprietary rights to such information, services or products or its rights to license the same, and the Licensee shall not aide others in doing so.
(e) Each party acknowledges that the breach of the provisions of this Section 5.2 will cause irreparable harm and the extent of injury may be impossible to ascertain. Accordingly, each party agrees that the other party shall have, in addition to any other rights and remedies available to it, the right to immediate injunction enjoining any breach of this Section 5.2. Nothing herein shall be construed to preclude the aggrieved party from obtaining injunctive relief in the case of breach of the provisions of any other section of the Agreement(s) or these Terms and Conditions. The obligations of the parties specified in this Section 5.2 shall survive the expiration or termination of the Solution Agreement.
(f) Neither party receiving information from the other shall have any obligation to keep secret any confidential or proprietary information: (i) which is, or becomes part of the public domain not due to the fault of the receiving party; (ii) which the receiving party knew prior to the disclosure of such information to it or any of its employees by the disclosing party; or (iii) which prior to the time of disclosure is revealed to the receiving party by a third party who has the right to do so without violating any law, or any agreement of which the receiving party was aware or with reasonable care should have been aware.
(g) The Company reserves the right to develop Solution, services, materials and products that are competitive with the Services and to market such products to other Licensees so long as they do not infringe upon any patent, trademark, copyright or other proprietary right of the Licensee.
5.3 Privacy and Confidentiality:
(a) Both parties acknowledge that in the course of performance of the Services the parties may have access to the other party’s trade secret, confidential, proprietary, business and/or Licensee information, including, without limitation, “non-public personal information” and personally identifiable information (PII) (collectively all of these types of information are known hereinafter as “Confidential Information”). The parties agree that they will not use or disclose this Confidential Information for any purpose other than as required for the performance of their obligations with regard to the Agreement(s) without the written permission of the party to whom the information belongs. Any dissemination of the Confidential Information within a party’s own business entities and its affiliates and to its subcontractors shall be on a “need to know” basis for the sole purpose of performance of obligations under the Agreement(s). Upon termination of the Agreement(s), both parties shall return all such Confidential Information to the owner of such Confidential Information. Both parties shall comply in full with the privacy requirements of the European Union’s General Data Protection Regulation (GDPR) and the rules and regulations promulgated thereunder (as any of the same may be amended or superseded from time to time). Each party shall, and shall cause its employees and subcontractors to, implement and maintain such reasonable information security measures as are already in place by each respective party and designed to comply with the requirements of all applicable privacy laws and regulations. The parties agree that from time to time the other party may monitor the party’s or any employee’s or subcontractor’s compliance with such requirements, provided that such monitoring does not impact their operations nor infringe upon their legitimate obligations or interests.
(b) The Company agrees to cooperate and assist the Licensee in connection with any examination by regulatory authorities or any internal or external audit of the Licensee; provided, however, that the Licensee shall reimburse The Company for all out of pocket expenses incurred and will pay The Company its standard hourly rates for time spent in any such effort. The Licensee may direct the Company to cooperate directly with the competent authorities supervising License and resolution authorities, including other persons appointed by them.
(c) The Company at no time requires access to the Licensee’s client data to perform its installation and maintenance activities. In the event that the Licensee requests support from the Company that requires the Company to access the Licensee’s client data, then a separate agreement shall be entered into, including appropriate indemnities and safeguards to protect the parties.
(a) The parties agree that the Company shall not be liable for any loss or liability suffered by the Licensee in connection with the services provided by the Company hereunder unless caused by the Company’s gross negligence. The Licensee agrees that the Company shall be excused from the performance and shall not be liable for any delay in delivery or non-delivery due to contingencies beyond the control of the Company, including, but not limited to, war, riot, sabotage, judicial or governmental action or inaction, strikes or other mass labor dispute, accident, fire, explosions, flood, earthquakes, acts of terrorism, acts of extortion, or other natural disasters or any act of God or other causes or events beyond its control.
(b) The Licensee further agrees that in no event will the Company be liable for indirect, special, collateral, incidental or consequential damages. The Licensee further agrees that in no event will the total aggregate liability of the Company for direct (excluding gross negligence), indirect, special, collateral, incidental or consequential damages arising under this contract and services performed hereunder exceed the total amount paid by the Licensee to the Company during the preceding twelve (12) month period (or, should the contract have been in effect less than twelve (12) months, for the time from the effectiveness of the contract).
(c) Neither party shall be liable for any claim made by any party other than the Company or the Licensee against the Licensee for damages incurred by such person, directly or indirectly, as a result of any error or omission by the Company or the Licensee related directly or indirectly to the performance of the Services. The Company shall not be liable to the Licensee or any other person for noncompliance by the Licensee or any other third party with regards to any applicable law or regulation regarding the Services performed by the Company pursuant hereto.
(d) It is the Licensee’s responsibility to enter into appropriate agreements with its franchisees, agents, or branches (if applicable) and other parties and to obtain appropriate indemnities and limitations on the Licensee’s liabilities and to carry appropriate insurance to cover its liabilities to its franchisees, agents, or branches. The Licensee shall, therefore, indemnify and hold the Company harmless from and against any and all claims, causes of action, liabilities or losses (including reasonable attorneys’ fees) by or on behalf of any party other than the Licensee or the Company arising out of, or in any way related to, any goods or services provided by or through the Licensee to any person other than the Company. The Licensee’s obligations under this Section 5.4(d) shall survive the termination or expiration of the Service Agreement.
(e) The Licensee acknowledges that the Licensee retains the risk of security failures as a result of flaws in its Environment and configuration of systems. The Licensee hereby specifically releases the Company from any liability for failure of the measures implemented to prevent any loss, damage, destruction or theft of data or to prevent any breach of security, and the Licensee agrees to indemnify and hold harmless the Company for all damages, liabilities, costs and expenses (including legal fees and expenses), relating to the failure of the Licensee’s systems to prevent loss, damage, destruction or theft of data or to prevent any breach of security. The Licensee further releases the Company from any liability for any loss, damage, destruction or theft of data or for any breach of security resulting from failure of third party equipment or software to operate as anticipated, including, but not limited to, telephone or other telecommunications lines or other equipment utilized by Licensee or any other systems, whether or not such equipment or systems are within the Licensee’s control.
The Licensee shall carry out all the necessary and/or required actions and take all reasonably available measures (and to do so no later than two weeks prior to the scheduled date of SaaS Access) to ensure security and prevention from unauthorized access (including but not limited to login capabilities restricted by physical, remote, technical and/or other means, use of passwords, installation of security systems and/or other security instruments) to the SaaS, Solution and/or Services.
Whichever party becomes aware of a data or security breach of the SaaS shall immediately inform the other party, including details of such breach.
5.5 Third Party Vendors:
(a) The Licensee acknowledges that some products and services optionally provided under the Agreement(s) may be provided by third parties which are not a party to the Agreement(s), and some of the services provided by the Company may be provided utilizing Solution or systems owned by or licensed from third party vendors. The Licensee agrees to execute appropriate Solution license agreements with such third party vendors, and in case of optional services outside the scope of the Agreement, as required by such third party vendors at its own cost.
(b) The Licensee agrees to treat any information, services or products provided by such third party vendors as intangible, proprietary information, intellectual property, and trade secrets, whether or not any portion thereof is or may be validly copyrighted or patented. The Licensee’s interests in such information, services or products is only the non-exclusive right to use thereof as herein provided, and the Licensee shall have no interest therein or rights thereto other than the non-exclusive right to use as herein provided.
(c) The Licensee agrees that the Company, at its sole discretion, may change any third party vendor and provide an equivalent substitute for the third party vendor’s respective products, Solution, or services. Such a change requires consent of the Licensee if it would result in the increase of costs for the services provided.
(d) Except where the Company has agreed to any third party integration in advance, the Company shall not be liable for defects associated with the SaaS or Solution or any other services rendered whereby the SaaS, Solution or services rendered do not provide full interoperability with the Licensee’s third party software.
5.6 Default in Payment:
The Licensee shall pay all amounts due under this Agreement no later than ten (10) days after receipt of each invoice and the Licensee shall pay a service fee equal to one and a half percent (1.5%) per month, or if lower, the highest rate legally permitted, for any late payments plus all associated collection and legal expenses if applicable. In the event that the Licensee shall default for failure of payment, the Company shall have all rights and remedies available at law or in equity to the Company.
Payment shall be made net of all bank fees to our bank account nominated on the invoice.
5.7 Return of Materials:
Within thirty (30) days after the effective date of any termination of the Agreement(s), the Licensee shall return all materials relating to the Services and shall deliver to the Company a certificate executed by a duly authorized officer that the Licensee and the Licensee’s agents and employees and contractors have returned to the Company all such materials and have not retained copies of any Solution or documentation which is related to the Services.
5.8 Law and Jurisdiction
The parties hereto shall endeavour in good faith to resolve all claims, controversies and disputes arising from, or in connection with, the Agreement through informal discussions and negotiations either between themselves or between respective legal advisors appointed by each party.
For Agreements entered into with Probanx Solutions Ltd (Cyprus), the agreement shall be subject to Cypriot Law, and the jurisdiction of the Cypriot Courts
For Agreements entered into with UAB Probanx Solutions (Lithuania), the agreement shall be subject to Lithuanian Law, and the jurisdiction of the Lithuanian Courts
The Agreement(s) and the information provided herein and under the Agreement are confidential and provided for internal use of the parties only . The Agreement(s) and information contained herein may not be copied, distributed, or viewed by any third party without the written permission of the originating party, except as provided at Section 2.
5.10 Third Party Warranties and Maintenance Contracts:
Except as provided herein, the Company is obligated to provide no maintenance and provides no warranties for any Environment, cloud services, computer hardware, equipment or computer Solution or any other products manufactured, developed or owned by parties other than the Company or its vendors. The Licensee agrees that it will look to the manufacturers, developers or owners of such cloud services, hardware, equipment and Solution for any warranty claims relating thereto.
If the Licensee is required by law to make any deductions or withholdings from payments to Company, the Licensee shall pay such additional amounts to Company as may be necessary to ensure that the actual amount received by Company after deduction or withholdings (and after payment of any additional taxes due as a consequence of such additional amount) shall equal the amount that would have been payable to Company if such deductions or withholdings were not required; this does not apply to the Company’s own tax obligations, especially income tax and other taxes imposed by the laws of the Company’s domicile country. The Licensee shall indemnify and hold Company harmless from and against any claims, liabilities, or expenses (including any interest or penalties) arising out of the Licensee’s failure to withhold or timely remit such taxes to the proper governmental authority.
5.12 SOLUTION SOURCE CODE IN ESCROW ACCOUNT
a). The Company and the Licensee, may enter into a Solution source code escrow agreement with Iron Mountain Inc. or another third-party Solution escrow agent that will be mutually agreed on. The source code and other relevant materials will be securely held by Iron Mountain Inc. and will only be released subject to the specific conditions of bankruptcy or failure to maintain the Solution. As new versions of the Solution are developed corresponding updates to the escrow will occur.
b) The above will ensure Licensee’s business continuity in the cases of the Company not being be able to offer its services, as well as to access the most recent version of the Solution source code.
c). In the event that escrow is required, the Licensee shall enter into a separate tripartite agreement as a beneficiary between Iron Mountain Inc. and iSignthis Ltd (being jointly responsible for source code deposit as Probanx® ultimate owner).
d). The cost is in the order of US$1,500 to establish the tripartite agreement payable to Probanx®, with payment by Licensee directly to Iron Mountain Inc of the Beneficiary Fees, currently set at US$1000/annum (subject to confirmation upon request)
All notices and other communications required or permitted under this Agreement shall be in writing and hand delivered, sent by email, sent by certified first class mail, postage, or sent by nationally recognized express courier service or by email. Such notices and other communications shall be effective upon receipt if hand delivered or sent by email, ten (10) days after mailing if sent by mail, and two (2) days after dispatch if sent by express courier and at the time it’s sent if sent by e-mail to the addresses as nominated in the Agreement, or such other addresses as any party shall notify to the other party.
5.13 Assignment; Amendment:
(a) Neither Party has the right to assign the rights and/or obligations associated with Agreement(s) and these Terms and Conditions to the third parties without a prior written consent of the other Party. (b) The Agreement(s) and these Terms and Conditions can only be modified by a written agreement duly signed by persons authorized to sign agreements on behalf of the Licensee and of the Company, and variance from or addition to the Terms and Conditions or the Agreement(s) in any order or other written notification from the Licensee will be of no effect.
(b) The Agreement(s) and these Terms and Conditions can only be modified by a written agreement duly signed by persons authorized to sign agreements on behalf of the Licensee and of the Company, and variance from or addition to the Terms and Conditions or the Agreement(s) in any order or other written notification from the Licensee will be of no effect.
If any provision or provisions of the Agreement(s) shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the other provisions shall not, in any way, be affected or impaired thereby.
No waiver of any contract provision shall be deemed a waiver of future enforcement of that or any other provision.
5.16 Force Majeure:
Neither party shall be responsible for the failure to fulfill its obligations under the Agreement(s) or these Terms and Conditions due to acts of God, acts of nature, acts of terrorism, strikes, walkouts, problems with communications or equipment, or other causes beyond a party’s control.
5.17 Audit rights
(a) Following reasonable prior written notification by the Licensee, the Company shall grant the competent authority supervising the Licensee vested with the power to exercise the rights prescribed herein:
complete and unrestricted access, including access to the relevant business premises, to all relevant data and information regarding the services provided on the basis of this Agreement (“access and information rights”);
unrestricted rights of inspection and auditing related to the services provided on the basis of this Agreement (“audit rights”), to enable them to monitor the services provided under this Agreement and to ensure compliance with all applicable regulatory and contractual requirements.
(b) Before any on-site visit, reasonable notice shall be given to the Company. Furthermore, when performing audits in multi-client environments, care shall be taken to ensure that risks to other clients of Company (e.g. impact on service levels, availability of data, confidentiality aspects) are avoided or at least mitigated.
(c) Company shall arrange for its Business Continuity Plan and Penetration Test to be tested annually, and the results witnessed by either its ISO27001 certifier or external auditor, and, if requested, the Regulatory Authority. The key metric of recovery time shall be measured and witnessed by the certifier/auditor, and the results presented to the regulatory authority and the Licensee. The Company shall submit details of its Business Continuity Plan to the regulatory authority upon request.
This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. The document is validly executed by a signed