Terms And Conditions

1. DEFINITIONS

1.1 For purposes of these Terms and Conditions, the following terms shall have the following meanings, save as otherwise set out herein:

Affiliates - shall mean, with respect to a person, any other person which directly or indirectly controls, is controlled by or is under common control with the first person. For the purposes of this definition “control” means the ability to direct, or cause the direction of, the management or policies of such person whether by means of ownership of voting securities or partnership interests, representation on board of directors or similar governing body, or contract or otherwise. In respect of the Licensee, it shall, where appropriate, procure that each of its Affiliates who use the Software complies with the terms of the License hereunder and shall retain the responsibility for its Affiliates compliance to the same extent as applicable to the Licensee;

Agreement - shall mean the Business Terms of the Agreement, incorporating these Terms and Conditions and any Service Level Agreement that may be signed for support of the Agreement;

Business Day - shall mean a day (other than a Saturday or Sunday or public holiday) on which banks are generally open in Estonia for the transaction of normal banking business;

Confidential Information - shall mean any information which either party (the Disclosing Party) may find beneficial to disclose or allow to be disclosed or make available to the other party (the Receiving Party) relating to itself or its Affiliates pursuant to or in connection with the Agreement (whether orally or in writing) and whether or not such information is expressly stated to be confidential or marked as such including, but not limited to, trade or business secrets, discoveries, ideas, concepts, customer names, marketing plans, formulas, computer programs, processes, data, ideas, Software, Software Documentation, Program Improvements, , drawings, inventions (whether patentable or not), algorithms, source code, object code, know-how, software listings, schematics, and other technical, financial, or business information, other than information that is in the public domain at the date of the Agreement, information that subsequently comes into the public domain after the date of the Agreement, otherwise than as a result of a breach of the Agreement, information which the Receiving Party obtains or its employees, agents or advisers obtain from a third party not under any confidentiality obligation to the Disclosing Party in respect of such information, information which the Receiving Party or its employees, agents or advisers at the time of disclosure already has in its possession and which is not subject to any confidentiality obligations on the Receiving Party’s part to the Disclosing Party, information which is independently developed by Receiving Party or its employees, agents or advisers who had no access to the information disclosed by the Disclosing Party and information which the Receiving Party may be required to disclose by any law, rule or regulatory authority (provided however that the Receiving Party shall take all reasonable steps to give the Disclosing Party sufficient notice in order to contest such requirement);

Developed Work - shall mean a modification, revision, abridgement, translation, condensation or expansion of the Software or Software Documentation or any form in which the Software or Software Documentation may be recast, adapted, transferred, by Licensor under this Agreement;

Fees - means all the monies due from Licensee to Licensor, payable as per clause 4 of these Terms and Conditions and as per the Software License Agreement;

Installation - shall mean the point in time at which, in Licensor’s reasonable professional opinion, the Licensee has acquired access to the Software which has been set up for Licensee’s use;

License - means the license granted under clause 2.1;

Licensee Customers - shall mean any customer of the Licensee who by using Licensee’s services, after having completed any registration process as implemented by the Licensee, will be using EasyTech Software;

Software - shall mean EasyTech Platform, which is a hosted and managed proprietary system online developed, and the components thereof, owned and maintained by Licensor, that facilitates trading of Assets and accesses the financial markets, including any replacement software, any related software, websites, URLs, software, ancillary software and deliverables such as reports, compilations and databases as well as a web trader, terminal and mobile application;

Software Documentation - shall mean all documentation relating to or distributed with the Software for aiding the use and application of the Software, in whatever form, including operating manuals, technical literature, software user manuals, installation guides and reference manuals whether in physical or electronic version;

Software Improvements - shall mean those improvements or updates or modifications generally released as to the Software by Licensor, and designated by Licensor as program improvements, including, but not limited to, (i) additions of substantial functionality incorporating improvements provided to the Licensee to correct program faults and (ii) patches and bugs correcting errors and/or program faults;

Support Services - shall mean all the services offered by Licensor and are related to the support of the Software as those are referred in the Service Level Agreement between Licensor and Licensee;

SLA - shall mean the Service Level Agreement, if signed separately, between Licensor and Licensee; and

EasyTech Platform - shall mean the Software.

1.2 In these Terms and Conditions, unless the context requires otherwise:

  1. references to persons shall include individuals, bodies corporate (wherever incorporated), and unincorporated associations and partnerships;
  2. the headings are inserted for convenience only and shall not affect the construction of the Agreement;
  3. references to the singular include the plural and vice versa and references to one gender include all genders;
  4. any reference to any enactment or statutory provision is a reference to it as it may have been, or may from time to time be, amended, modified, consolidated or re-enacted;
  5. the words including and in particular shall be construed as being by way of illustration or emphasis only and shall not be construed as, nor shall they take effect as, limiting the generality of any earlier words;
  6. references to any statute, legislation or regulation are references to Estonian statutes, legislation or regulations unless otherwise specified; and
  7. references to any time, are to the local time in Estonia.

2. LICENCE OF SOFTWARE

2.1 Licence

  1. Licensor grants to the Licensee and the Licensee hereby accepts, a non-exclusive, non-transferable, fee based license with the right to use the Software, subject to the Terms and Conditions, during the term of the Agreement:
    1. to access the Software and configure such in accordance to Licensee’s needs and operations; and
    2. to receive and use the Software Documentation for the purposes of use of the Software for Licensee’s business.
      The License for the avoidance of doubt shall not give the Licensee a right to the source code of the Software.
  2. Licensor shall create the necessary access to the Software through via a specifically designed graphical user interface, accessible through Application Programming Interface (“API”). Such access is strictly confidential, non-transferable and is only to be used by the Licensee. Passwords and logins to the created access will survive for the duration of the Agreement, but replacement passwords and logins may be provided by Licensor if requested by the Licensee.

2.2 Software Improvements

  1. Licensor may install Software Improvements in the Software from time to time and shall provide the Licensee with reports of the errors and “patches” (which correct errors or defects in the Software) which are dealt with in the Software.
  2. The Licensee acknowledges and agrees that, it will be obliged to accept any Software Improvements and that Licensor will intervene in the Software as much as is necessary for the purpose of installing the Software Improvements, save in the case of emergency, and that any Software Improvements the Licensee receives will form part of the Software for the purposes of the Agreement and shall be subject to the same proprietary rights and Licensee’s undertakings set out herein, including but not limited to, those set out in clause 3 below. The Licensee is entitled to use the Software Improvements on the same terms and conditions as the Software but not further or otherwise.

3. INTELLECTUAL PROPERTY RIGHTS AND LICENSEE’S UNDERTAKINGS

3.1 Intellectual Property Rights

  1. The Licensee acknowledges and agrees that the Software, Software Documentation (including the Software Improvements) and all copies thereof (whether in machine-readable or printed form and howsoever and wheresoever arising) and all copyright, database rights, patents, trade secrets, trademarks and other proprietary or intellectual property rights of any nature whatsoever therein, including, without limitation, in the Developed Work, compilations, or collective works thereof and all related technical know-how and all rights therein (regardless of whether pending, perfected, registered, issued or otherwise protectable) (Licensor Intellectual Property Rights) are and will, unless otherwise stated herein or the parties agree otherwise in writing, remain the sole property of Licensor.
  2. Licensor reserves the right to grant licenses or to use or otherwise exploit the Software and the Software Documentation to any other person or body.
  3. In the event that new intellectual property rights evolve or are developed by Licensor from the Software, including but not limited to, inventions, designs or processes evolving as a result of the performance by Licensor of its obligations under this Agreement, including the provision of Software Improvements, the Licensee acknowledges that the same will be the property of Licensor.
  4. The Licensee shall not during or at any time after the expiry or termination of the Agreement in any way dispute or question or take any action to jeopardise, limit or interfere in any manner with Licensor’s ownership and rights with respect to the Software and Software Documentation. The Licensee shall have only those rights in or to the Software and Software Documentation expressly granted to it pursuant to the Agreement.
  5. For the avoidance of doubt, all legal and beneficial right, title and interest in all and any Licensee Intellectual Property Rights, whether pre-existing or independently developed by or on behalf of the Licensee and/or its Affiliates will remain the absolute property of the Licensee or the relevant Affiliate.

3.2 Licensee’s Undertakings

  1. The Licensee undertakes only to use the Software in the manner and for the purposes as set out in the Agreement and only to the extent permitted by the applicable law to the Licensee as a lawful user (i.e. a party with an express right to use). Licensee is obligated to have all necessary authorisations and licentiates of its jurisdiction of governance and use the Software at all times in a legitimate manner and in a manner that will not be to the detriment of the Licensor’s good reputation.
  2. The Licensee undertakes that it will:
    1. not itself or through any Affiliate, subsidiary, agent or third party:
      1. copy, reproduce, translate, adapt, vary, modify or otherwise reproduce the Software, save where the Licensee may copy the Software Documentation to the extent reasonably necessary for use of the Software under this Agreement.
      2. The Licensee shall not develop its own software application with similar features to the Software if such development is a result of directly or indirectly using, copying, reproducing, translating, adapting, varying or modifying the Software’s source code, object code, the Software Documentation and/or the Confidential Information in existence at the time of the Licensee’s software development, or in any way infringing Licensor’s Intellectual Property Rights set out in clause 3.1, in order to develop the Licensee’s software;
      3. reverse engineer, decompile, bug fix, disassemble or otherwise attempt to derive the source code, techniques, processes, algorithms, know-how or other information from the Software (collectively, "Reverse Engineering") or permit or induce the foregoing. If however, directly applicable law prohibits enforcement of the foregoing, Licensee may engage in Reverse Engineering solely for purposes of obtaining such information as is necessary to achieve interoperability of independently created software with the Software, or as otherwise and to the limited extent permitted by directly applicable law, but only if: (a) Reverse Engineering is strictly necessary to obtain such information; and (b) Licensee has first requested such information from Licensor and Licensor failed to make such information available (for a fee or otherwise) under reasonable terms and conditions. Any information supplied to or obtained by Licensee under this section is Confidential Information of Licensor, may only be used by Licensee for the purpose described in this section, and will not be disclosed to any third party or used to create any software which is substantially similar to the expression of Licensor’s Software.
      4. sell, resell, distribute, redistribute, lease, licence, sub-licence or otherwise deal with the Software or any part or parts or variations, modifications, copies, releases, versions or enhancements thereof or have any software or other program written or developed for itself based on any Confidential Information supplied to it by Licensor, save as permitted pursuant to the terms of the Agreement; nor
      5. use the Software or any part thereof for any improper or unauthorised purposes or take any action which is reasonably likely to bring Licensor into disrepute with any relevant regulator;
    2. supervise and control use of the Software and retain the Software under its exclusive control, in accordance with the terms of the Agreement and not to download and or make any copies of the Software; and
    3. not provide or otherwise make available the Software in whole or in part, in any form to any person other than the Licensee’s Affiliates, and any of Licensee’s and its Affiliates employees, agents or contractors, without prior written consent from Licensor; and
    4. effect and maintain adequate security measures to safeguard the Software from access or use by any unauthorised body or person; and
    5. at Licensor’s written request, and at Licensor’s cost, make available to any relevant regulator such information which is in the licensee’s possession or control as the relevant regulator may request of Licensor, within the time frame specified by the regulator.
  3. The Licensee undertakes to, and to procure that its Affiliates and any of Licensee’s and its Affiliates employees, officers, directors and agents shall not remove or alter any trademark, trade name, copyright, or other proprietary notices, legends, symbols, or labels appearing on the Software and Software Documentation delivered to Licensee by Licensor.
  4. The Licensee undertakes to comply fully with all applicable from time-to-time laws, rules and regulations relating to the export of software and/or technical data.
  5. The Licensee shall not participate in any illegal, deceptive, misleading, or unethical practices or other practices that may be detrimental to the Software, Licensor or the public interest. Furthermore the Licensee is obliged to comply with anti- money laundering laws and regulation of national and international authorities at all times. In the event the Licensee is reported and or found liable by any authority to have committed or there is a suspicion to have committed an act of money laundering, sponsoring terrorist activities, or drug trafficking or any other form of proceed form an illegal source or criminal activities and or fraudulent activities, the Licensor shall immediately terminate the Agreement and withdraw the license.
  6. The Licensee will permit Licensor to check the use of the Software and Software Documentation at all times during normal business hours upon reasonable notice from Licensor and will procure that Licensor is provided with such access to Licensee's System, as is reasonably requested by Licensor for such purpose, including but not limited to, checking that the Software is being used in accordance to its license.
  7. The Licensee undertakes to keep all access codes including those that may from time to time be provided as replacement(s) of the initial access codes, provided by Licensor strictly confidential.
  8. The Licensee will be solemnly responsible to monitor and restrict the access and usage of the Software by any person strictly not authorised to use and or access the Software.
  9. The Licensee is also responsible for maintaining any systems of its own, so that no viruses can contaminate the Software.
  10. The Licensee undertakes to notify Licensor of any anticipated change in its corporate status, such as a change of its registered office, business address, name (company name, trade name and business name), re-domiciliation, merger, acquisition, split, transfer of assets that affects the subject of this Agreement and a material change in ownership or control of the Licensee.
  11. The Licensee shall pay all costs and expenses incurred for the access to the internet which is necessary to use the Software as well as for acquiring and maintaining all systems necessary comprising among other things, all hardware, software, databases, domains, webpages and interfaces, website infrastructure, back office systems, CRM functions, financial reporting systems and anything related to its business, helpful and ancillary to the use of the Software.
  12. The License shall promptly and without unreasonable delay, provide and make available to Licensor all materials requested by Licensor to proceed with the set -up of the Software in the environment of the Licensee.
  13. The Software shall be fully managed by the Licensee as part of Licensee’s environment of business and operational systems.

4. FEES

4.1 Fees

  1. The Licensee shall, subject to clause 4.2, pay to Licensor the non-refundable and non-creditable fees which shall be the Monthly Fees/Set Up Fees (the Fees), in consideration of the grant of the Licence to the Licensee.
  2. In addition:
    1. Licensor retains the right to charge such amount as may be agreed in writing between Licensor and the Licensee in respect of Software services requested by the Licensee in addition to those to be provided pursuant to the terms of the Agreement;
    2. after the expiry of the Initial Term, fees payable under the Agreement may be subject to increase. The revised fees will take effect on expiry of the period expressly referred in the notice for such increase, unless the Licensee notifies Licensor within such period that it wishes to terminate the Agreement for reasons concerning the increase of the Fees;
    3. the Licensee shall not be entitled to withhold payment of any sum by reason of any right of set-off or any claim or dispute with Licensor, whether relating to the quality or performance of the Software or otherwise.

4.2 Payment

  1. Licensor will issue an invoice in respect of any fees due under the Agreement and the Licensee shall procure that all payments due under the Agreement are paid by electronic funds transfer to such bank account as Licensor may from time to time notify the Licensee in writing within five (5) Business days of receipt of such invoice for the relevant fee, clear of any outgoing, intermediary and incoming bank charges resulting from the payment. All payments shall, unless otherwise specified, be made in Euro. In the event of late or no payment, Licensor may consider this as material breach of the present Agreement.
  2. The fees payable under the Agreement shall be solely for the Licence of the Software and shall not relate to any other services which Licensor may provide to the Licensee including, but not limited to hosting services, connectivity services, technical support services or any other service.
  3. In addition to the option in clause 9 below, if the Licensee fails to pay any amount payable by it under the Agreement, on condition that such amounts are due and payable, Licensor reserves the right to claim an annual interest of 9% on the balance due.
  4. The fees payable pursuant to the Agreement are exclusive of all taxes, duties or levies, however designated or computed. Licensee shall be responsible for and pay all taxes based upon the use of Software, or upon payments due under the Agreement, including but not limited to sales, use, or VAT, duties, withholding taxes and other assessments now or hereafter imposed on or in connection with the Agreement.

5. WARRANTY

5.1 The Licensee acknowledges that the Software has not, (except as expressly set out in this Agreement) been produced to meet the individual requirements of the Licensee and cannot be tested in every possible combination.

5.2 Licensor warrants and undertakes for the duration of this Agreement that:

  1. it will discharge its obligations to provide the Software under this Agreement with the due skill, care and diligence required according to good industry practice;
  2. at the time of the installation, the Software (together with any subsequent Software Improvements) does not, so far as Licensor is aware having exercised best efforts, contain any Trojan horse, worm, logic bomb, time bomb, back door, trap door or keys, as such terms are commonly understood in the Software development industry, which is likely to materially harm the Software; and
  3. so far as Licensor is aware having exercised best efforts, the Licensee’s use and operation of the Software in accordance with the terms of this Agreement will not infringe any intellectual property rights of any nature whatsoever of a third party.

Except as expressly stated in this Agreement, Licensor excludes all other representations, conditions, terms or warranties of any kind, whether express or implied (either in fact or by operation of laws, common law, case law or otherwise) with respect to the Software and/or the Software Documentation, including but not limited to, the implied conditions as to satisfactory quality and fitness for purpose. Except as expressly stated in this Agreement, Licensor does not warrant that the operation of the Software will be entirely uninterrupted or error free, or that all Software defects can be corrected and or the use of the Software in association with third party products.

5.3 Licensor makes no warranty or representation that the Software will be free from all viruses.

5.4 Licensor shall use all reasonable efforts to provide uninterrupted availability and operation of the Software and in any event excluding reasonable periods of downtime for maintenance, installation of periodic upgrades and related support.

5.5 Each party warrants and represents to the other for the duration of the Agreement, with respect to itself, that:

  1. it is duly incorporated and validly existing under the laws of its jurisdiction of incorporation;
  2. it has obtained all necessary consents, powers, licenses and authorizations and has the requisite corporate power and authority to enter into the Agreement and to perform its obligations hereunder;
  3. neither the Agreement nor the implementation of the transactions contemplated by it (including, but not limited to, in the case of the Licensee only, the execution of trades by the Licensee Customers on the Software) will result in:
    1. a violation or breach of any provision of the memorandum and articles of association, bye-laws or equivalent constitutional documents of it;
    2. a violation or breach of any applicable laws or regulations or any order or decree or judgment of any court, governmental agency or regulatory authority applicable to it; or
    3. a requirement for the party to obtain any consent or approval of, or give any notice or make any registration with, any governmental, regulatory or other authority which has not been obtained or made at the date of the Agreement on a basis which is unconditional and cannot be revoked;
  4. the Agreement and the obligations created thereunder are binding upon it and enforceable against it in accordance with their terms and that it is not subject to any law or regulation which prevents that party’s performance of the Agreement; and
  5. there is no reason or reasons which will, or might reasonably be expected to, lead to the revocation, refusal or application of conditions to any current license or registration of the Licensee and/or the Licensor, as applicable.

6. INDEMNITY

6.1 Licensor agrees to indemnify and defend at its own expense the Licensee (save as otherwise set out herein) from and against any and all claims, costs, damages, losses or expenses (including reasonable legal fees) suffered or incurred by the Licensee in respect of claims of infringement of any copyright, patents, trademarks, industrial designs, or other intellectual property rights relating to the Software, provided that:

  1. the Licensee promptly, and in any event within thirty (30) Business Days of becoming aware of the claim, notifies Licensor in writing of any such claim and Licensor has sole control of the defence of such claim, subject to the undertaking by Licensor to use competent counsel; and
  2. the Licensee gives Licensor such assistance, information and co-operation, at Licensor’s expense, as Licensor may reasonably require to settle or oppose any such disputes.

6.3 For the avoidance of doubt, Licensor shall have no liability for, and Licensee shall indemnify from and against all reasonable loss, costs and expenses suffered by Licensor arising from third party actions, proceedings and claims only to the extent attributable to the Licensee from:

  1. any failure by the Licensee to perform its obligations under the Agreement;
  2. modification, alteration, enhancement variation or addition to the Software not performed or authorised in writing by Licensor;
  3. incorrect or improper use, abuse or corruption of the Software or the Software Documentation including misuse of the Software on any systems other than the specified hardware platform for such Software;
  4. use of other than the then-supported, unaltered version of the Software as provided by Licensor or otherwise authorised or approved by Licensor in accordance with the terms of this Agreement, unless the infringing portion is also in the then-supported, unaltered or authorised version.

Licensee shall not be entitled to settle or compromise any action, proceeding or claim related thereto without the prior written consent of Licensor (not to be unreasonably withheld or delayed).

6.4 Licensee agrees to indemnify and defend at its own expense Licensor (save as otherwise set out herein) from and against any and all claims, costs, damages, losses or expenses (including reasonable legal fees) suffered or incurred by Licensor in respect of claims of infringement of any copyright, patents, trademarks, industrial designs, or other intellectual property rights relating to the Licensee’s Intellectual Property Rights. Licensee shall not be entitled to settle or compromise any claim related thereto without the prior written consent of Licensor (not to be unreasonably withheld or delayed).

7. LIMITATION OF LIABILITY

7.1 The remedies provided herein are Licensor’s and Licensee’s sole and exclusive remedies. Neither Licensor nor the Licensee and their respective suppliers shall be liable for any claim against the Licensee or Licensor (as the case may be) by any third party with respect to the infringement of any intellectual property rights or otherwise, save as set out in clause 6 above.

7.2 Subject to clause 7.6, Licensor and the Licensee expressly exclude liability for any loss of profits, loss of business, loss of revenue, goodwill or anticipated savings, loss of use or data, interruption of business, and for indirect, special, incidental or consequential damages of any kind, even if the other has been advised of the possibility of such damages and notwithstanding any failure of essential purpose of any limited remedy.

7.3 Subject to clause 7.6, the entire liability of Licensor towards the Licensee for damages in any way related to the subject matter of the Agreement, and regardless of whether the claims for such damages are based in contract, tort (including negligence) or otherwise, shall not exceed the total amount received by Licensor from the Licensee during any twelve (12) month period of this Agreement preceding the event that resulted to the damages.

7.4 In no event will Licensor or its suppliers be liable for:

  1. failure of the Software to perform the facilities and functions set out in the Agreement, save as expressly provided herein; or
  2. any misuse of the Software or the Software Documentation by Licensee Customers or the Licensee’s agents and contractors and any use of the Software or the Software Documentation by Licensee Customers, in so far as such use relates to the performance and/or enforcement of transactions.

7.5 Save as set out herein, the rights and remedies provided for pursuant to the Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies which the party may possess at law or in equity.

7.6 Nothing in this Agreement shall be taken as excluding or limiting the liability of Licensor or the Licensee, as appropriate, in respect of the indemnity in clause 6, breach of clause 8 (confidentiality), such party’s fraud or wilful misconduct.

7.7 For the avoidance of doubt, the parties shall take reasonable steps to mitigate their losses, costs or damages arising out of or in relation to this Agreement.

8. CONFIDENTIAL INFORMATION

8.1 Each party agrees to treat as confidential and keep secret all Confidential Information, to use such Confidential Information only as permitted under the Agreement, to take all reasonable precautions to prevent any unauthorised disclosure or use of Confidential Information, and must not without the consent of the party disclosing the information (the Disclosing Party):

  1. exploit the Confidential Information in whole or in part, other than is strictly necessary to enable the party receiving the information (the Receiving Party) to perform its obligations hereunder; nor
  2. disclose the Confidential Information in whole or in part or make any aspect of the Confidential Information available to any person, subject always to clause 8.2 below, other than to:
    1. those employees, agents, contractors of the Receiving Party who need to know or to use the same to further permitted uses of such information hereunder; and
    2. to any person who is for the time being appointed by either party to maintain the Software, and then only to the extent necessary to enable such person to do so.

8.2 The Receiving Party undertakes to ensure that any person to whom any part of the Confidential Information is disclosed pursuant to clause 8.1(b) is made aware prior to the disclosure that the Confidential Information is confidential and that they owe an express duty of confidence to the Disclosing Party and to take appropriate steps to implement and enforce such confidentiality obligations.

8.3 Each party agrees to promptly notify the other if it becomes aware of any breach of confidence pursuant hereto and to give the other party all reasonable assistance in connection with any proceedings which that party may institute.

8.4 The obligations of confidentiality set out in this clause 8 shall survive termination of the Agreement and, as soon as possible following termination of the Agreement, but in any event within three (3) months thereafter, the Receiving Party shall, and shall procure that any of its employees with access thereto shall, upon the Disclosing Party’s instructions, either deliver to the Disclosing Party or destroy, all copies of the Software, Software Documentation and Confidential Information and any other materials provided by the Disclosing Party to the Receiving Party pursuant hereto, which are in its possession or under its control, and shall deliver to the Disclosing Party a certificate signed by an officer of the Receiving Party certifying that the same has been done, unless the Receiving Party has obtained the Disclosing Party’s prior written consent to retain one copy for archive purposes which the Disclosing Party may authorise, together with any conditions the Disclosing Party may impose in respect of such continued retention.

8.5 Unless required by law, and except to assert its rights hereunder or for disclosures to its own employees on a “need to know” basis, both parties agree not to disclose the detailed terms of the Agreement or matters relating thereto without the prior written consent of the other, which consent shall not be unreasonably withheld.

8.6 If either party is requested to disclose any of the other party’s Confidential Information pursuant to any judicial or governmental order, such party will not disclose such Confidential Information without, to the extent practicable, first giving the other written notice of the request and reasonable opportunity to contest the order and/or obtain confidential treatment for such disclosure.

8.7 Licensor may only use the Licensee’s name in Licensor’s own marketing material, including Licensor’s website, with the prior written consent of the Licensee for advertising purposes only and, subject to relevant rules and regulations, for so long as the use of the Licensee’s name would not objectively be considered to be harmful to the reputation of such party or would not objectively be considered likely to lead any person to reduce their level of business with such party.

9. TERM AND TERMINATION

9.1 In addition to the right of the party to terminate the Agreement without cause by notice as set out in the Business Terms of the Agreement, either party may terminate the Agreement at any time and with immediate effect by serving a notice of termination on the other party if:

  1. the other commits any breach of any term of the Agreement and fails to remedy such breach within twenty-one (21) Business Days after the receipt of a request in writing from the first party to do so (such request to contain a warning of that party’s intention to terminate); or
  2. the other commits any material or continuing breach of any term of the Agreement which is not capable of being remedied, including but not limited to any breach of clause 2.1 or clause 5 or 6.

9.2 Either party may terminate the Agreement at any time and with immediate effect by serving a notice of termination on the other party if the other party:

  1. presents a petition or has a petition presented against it by a creditor for the appointment of an administrator or for its winding up;
  2. convenes a meeting to pass a resolution for voluntary winding up or the making of an administration order;
  3. enters into any liquidation (other than for the purposes of a bona fide reconstruction or amalgamation);
  4. calls a meeting of its creditors, or has a receiver, administrator, administrative receiver, liquidator or any other similar officer or insolvency practitioner appointed in respect of all or any of its undertakings or assets;
  5. suspends payment of its debts or becomes unable to pay its debts as they fall due, or the value of its assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities;
  6. refuses or becomes unable to meet any sums due to the other party when such sums fall due;
  7. ceases to carry on business as a going concern or ceases to be in a position to fulfill the Agreement;
  8. any security created by any mortgage or charge becomes enforceable against the party and the mortgagee or charge takes steps to enforce the security or charge;
  9. the party takes or suffers any similar action or occurrence in any jurisdiction;
  10. the party ceases or threatens to cease to carry on business or any substantial part of its business;
  11. the party has been convicted of any criminal or fraudulent offence; or
  12. any relevant regulator, requires the Agreement to be terminated or imposes any requirement or restriction which materially affects the ability of either party to take the action required of it under the Agreement, including but not limited to, revoking or amending a license granted to that party in a manner which is prejudicial to the interests of the other party, or Licensor has reasonable cause to suspect that such action will be taken in relation to a party.

9.3 Termination of the Agreement shall not act as a waiver of any breach of the Agreement and shall not act as a release of either party from any liability for breach of such party’s obligations under the Agreement.

9.4 Both Licensor and the Licensee will have the right to terminate this Agreement with no reason provided that each party give the other a 60 days’ notice stating in such notice the exact date of termination.

9.5 Upon termination or expiration of the Agreement:

  1. Licensor will be discharged from any further obligation to perform under the Agreement and all Licenses granted pursuant to clause 2.1 for the use of the Software and Software Documentation shall terminate;
  2. the Licensee shall pay to Licensor on demand all sums then properly due and owing, including all agreed costs, and expenses and other fees incurred by Licensor pursuant hereto in connection with the performance of its obligations to the Licensee up to the date of such termination for which the Licensee has provided its written approval and Licensor has paid or is legally obliged to pay, and all arrears of fees, charges or other payments arising in respect of the Software or the Agreement, on condition that such amounts are due and payable to Licensor, and that Licensor will use reasonable endeavours to avoid or mitigate such costs or expenses; and
  3. subject to clause 9.5(a) the Licensee and Licensor (as the case may be) shall comply with its obligations to return or destroy Software Documentation, if appropriate, and Confidential Information set out in clause 8.4 above.

9.5 Termination will be without prejudice to any rights and remedies that the terminating party may have in law or equity and shall not affect any accrued rights or liabilities of either party nor the coming into force or the continuance of force of any provision which is expressly or by implication intended to come into force or continue to be in force on or after such termination including, clauses 3, 4, 7, 8 and 10 to 20 which shall survive the termination of the Agreement.

10. NOTICES

10.1 Any notice or other communication to be given by one party to the other under or in connection with the Agreement, shall be in writing and signed by or on behalf of the party giving it. It shall be served by delivering it by hand, or sending it by pre-paid recorded delivery or special delivery to the address set out in clause 10.2 and in each case marked for the attention of the relevant party set out in clause 10.2 (or as otherwise notified from time to time in accordance with the provisions of the Agreement). Any notice so served by hand post shall be deemed to have been duly given:

  1. in the case of delivery by hand, when delivered; and
  2. in the case of post, at 10am on the second Business Day following the date of posting, provided that in each case where delivery by hand occurs after 6pm on a Business Day or on a day which is not a Business Day, service shall be deemed to occur at 9am on the next following Business Day. References to time in this clause are to local time in the country of the addressee.

10.2 The addresses of the parties for the purposes of clause 10.1 are as set out in the Agreement or as notified from one party to the other at any given time this Agreement will be valid.

10.3 A party may notify the other parties to the Agreement of a change to its name, relevant addressee or address for the purposes of clause 10.2, provided that, such notice shall only be effective on:

  1. the date specified in the notice as the date on which the change is to take place; or
  2. if no date is specified or the date specified is less than 5 Business Days after the date on which notice is given, the date following 5 Business Days after notice of any change has been given.

10.4 In proving such service, it shall be sufficient to prove that the envelope containing such notice was properly addressed and delivered either to the address shown thereon or into the custody of the postal authorities as a pre-paid recorded delivery, special delivery or registered post letter.

11. SEVERABILITY

If any provision of the Agreement is held to be invalid or unenforceable, then such provision shall (so far as it is invalid or unenforceable) be given no effect and shall be deemed not to be included in the Agreement but without invalidating any of the remaining provisions of the Agreement. The parties shall then use all reasonable endeavors to replace the invalid or unenforceable provisions by a valid and enforceable substitute provision the effect of which is as close as possible to the intended effect of the invalid or unenforceable provision.

12. FORCE MAJEURE

Licensor will be under no liability to the Licensee in respect of anything which, apart from this provision, may constitute breach of the Agreement arising by reason of force majeure, namely, circumstances beyond the control of Licensor, including but not limited to, acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riot, civil commotion, including acts of local government and parliamentary authority; inability to supply the Software, materials, breakdown of equipment which inability affects the entire software development industry, and labor disputes of whatever nature and for whatever cause arising including (but without prejudice to the generality of the foregoing) work to rule, overtime bars, strikes and lockouts and whether between either of the parties hereto and any or all of its employees and/or any other employer and any or all of its employees and/or between any two or more groups of employees (and whether of either of the parties to the Agreement or any other employer).

13. VARIATION

No variation of the Agreement (or of any of the documents referred to in the Agreement) shall be valid unless it is in writing and signed by or on behalf of each of the parties to it. The expression “variation” shall include any variation, supplement, deletion or replacement however effected.

14. WAIVER

14.1 No failure or delay in exercising or relaxation by Licensor of any of these terms and conditions shall operate as a general waiver of the relevant term, condition, right or power and no partial or single exercise of any term, condition, right or power shall preclude any other or further exercise of some or any of Licensor’s other rights and remedies against the Licensee.

14.2 No waiver of any breach of any term of the Agreement shall (unless expressly agreed in writing by the waiving party) be construed as a waiver of a future breach of the same term or as authorizing a continuation of the particular breach.

15. NO PARTNERSHIP OR AGENCY

Nothing in the Agreement (or any of the arrangements contemplated by it) is or shall be deemed to constitute a partnership between the parties nor, except as may be expressly set out in it, constitute either party the agent of the other for any purpose. Neither the Licensee nor its agents have any authority of any kind to bind Licensor in any respect whatsoever.

16. ASSIGNMENT

Neither party may assign this Agreement or any interest hereunder except with the prior written consent of the other. Licensor may transfer its rights and obligations under this Agreement (in whole or part) at any time to any Affiliate or to any successor of any part of its business or operations, provided that 30 Business Days’ written notice of such proposed assignment is given to the Licensee.

17. OFFER OF EMPLOYMENT

The parties undertake that they shall not for the duration of the Agreement and for a period of 12 months following termination solicit, procure or attempt to procure the employment of any persons employed at any time by the other party during the course of the Agreement. Nothing in this Agreement shall prevent a party at any time from running recruitment advertising campaigns nor from offering employment to any of the other party’s partners, members, directors or employees, as the case may be, who may respond to any such campaign.

18. FURTHER ASSURANCE

Each party agrees to execute such documents and waivers and generally do everything further that may be necessary to fulfil its obligations under the Agreement.

19. DATA PROTECTION

Licensee shall be exclusively responsible for all Licensee Customers data and its protection under the rules and regulations of its jurisdiction and the Licensor shall not be considered either as controller or processor of such data.

20. ENTIRE AGREEMENT

The Agreement, including the Schedules hereto, sets out the entire agreement and understanding between the parties in respect of the provision of the products and services hereunder and supersedes all proposals or prior agreements whether oral or written, and all communications between the parties relating to the subject matter of the Agreement and all past courses of dealing or industry custom. It is agreed that no party has entered into the Agreement or any other document referred to in the Agreement in reliance upon any statement, representation, warranty or undertaking of the other party or any of the other party’s employees, officers, agents or advisers which is not expressly set out or referred to in the Agreement or such other document.

21. GOVERNING LAW

The Agreement shall be governed by and construed in accordance with the laws of Estonia without reference to its conflicts of law provisions. Any such dis¬pute regarding the Agreement shall be subject to the exclusive jurisdiction of the courts of Estonia, and the parties agree to submit to the jurisdiction and venue of these courts.

By signing the Business Terms of Agreement you agree to these Terms and Conditions.

Terms And Conditions

1. DEFINITIONS

1.1 For purposes of these Terms and Conditions, the following terms shall have the following meanings, save as otherwise set out herein:

Affiliates - shall mean, with respect to a person, any other person which directly or indirectly controls, is controlled by or is under common control with the first person. For the purposes of this definition “control” means the ability to direct, or cause the direction of, the management or policies of such person whether by means of ownership of voting securities or partnership interests, representation on board of directors or similar governing body, or contract or otherwise. In respect of the Licensee, it shall, where appropriate, procure that each of its Affiliates who use the Software complies with the terms of the License hereunder and shall retain the responsibility for its Affiliates compliance to the same extent as applicable to the Licensee;

Agreement - shall mean the Business Terms of the Agreement, incorporating these Terms and Conditions and any Service Level Agreement that may be signed for support of the Agreement;

Business Day - shall mean a day (other than a Saturday or Sunday or public holiday) on which banks are generally open in Estonia for the transaction of normal banking business;

Confidential Information - shall mean any information which either party (the Disclosing Party) may find beneficial to disclose or allow to be disclosed or make available to the other party (the Receiving Party) relating to itself or its Affiliates pursuant to or in connection with the Agreement (whether orally or in writing) and whether or not such information is expressly stated to be confidential or marked as such including, but not limited to, trade or business secrets, discoveries, ideas, concepts, customer names, marketing plans, formulas, computer programs, processes, data, ideas, Software, Software Documentation, Program Improvements, , drawings, inventions (whether patentable or not), algorithms, source code, object code, know-how, software listings, schematics, and other technical, financial, or business information, other than information that is in the public domain at the date of the Agreement, information that subsequently comes into the public domain after the date of the Agreement, otherwise than as a result of a breach of the Agreement, information which the Receiving Party obtains or its employees, agents or advisers obtain from a third party not under any confidentiality obligation to the Disclosing Party in respect of such information, information which the Receiving Party or its employees, agents or advisers at the time of disclosure already has in its possession and which is not subject to any confidentiality obligations on the Receiving Party’s part to the Disclosing Party, information which is independently developed by Receiving Party or its employees, agents or advisers who had no access to the information disclosed by the Disclosing Party and information which the Receiving Party may be required to disclose by any law, rule or regulatory authority (provided however that the Receiving Party shall take all reasonable steps to give the Disclosing Party sufficient notice in order to contest such requirement);

Developed Work - shall mean a modification, revision, abridgement, translation, condensation or expansion of the Software or Software Documentation or any form in which the Software or Software Documentation may be recast, adapted, transferred, by Licensor under this Agreement;

Fees - means all the monies due from Licensee to Licensor, payable as per clause 4 of these Terms and Conditions and as per the Software License Agreement;

Installation - shall mean the point in time at which, in Licensor’s reasonable professional opinion, the Licensee has acquired access to the Software which has been set up for Licensee’s use;

License - means the license granted under clause 2.1;

Licensee Customers - shall mean any customer of the Licensee who by using Licensee’s services, after having completed any registration process as implemented by the Licensee, will be using EasyTech Software;

Software - shall mean EasyTech Platform, which is a hosted and managed proprietary system online developed, and the components thereof, owned and maintained by Licensor, that facilitates trading of Assets and accesses the financial markets, including any replacement software, any related software, websites, URLs, software, ancillary software and deliverables such as reports, compilations and databases as well as a web trader, terminal and mobile application;

Software Documentation - shall mean all documentation relating to or distributed with the Software for aiding the use and application of the Software, in whatever form, including operating manuals, technical literature, software user manuals, installation guides and reference manuals whether in physical or electronic version;

Software Improvements - shall mean those improvements or updates or modifications generally released as to the Software by Licensor, and designated by Licensor as program improvements, including, but not limited to, (i) additions of substantial functionality incorporating improvements provided to the Licensee to correct program faults and (ii) patches and bugs correcting errors and/or program faults;

Support Services - shall mean all the services offered by Licensor and are related to the support of the Software as those are referred in the Service Level Agreement between Licensor and Licensee;

SLA - shall mean the Service Level Agreement, if signed separately, between Licensor and Licensee; and

EasyTech Platform - shall mean the Software.

1.2 In these Terms and Conditions, unless the context requires otherwise:

  1. references to persons shall include individuals, bodies corporate (wherever incorporated), and unincorporated associations and partnerships;
  2. the headings are inserted for convenience only and shall not affect the construction of the Agreement;
  3. references to the singular include the plural and vice versa and references to one gender include all genders;
  4. any reference to any enactment or statutory provision is a reference to it as it may have been, or may from time to time be, amended, modified, consolidated or re-enacted;
  5. the words including and in particular shall be construed as being by way of illustration or emphasis only and shall not be construed as, nor shall they take effect as, limiting the generality of any earlier words;
  6. references to any statute, legislation or regulation are references to Estonian statutes, legislation or regulations unless otherwise specified; and
  7. references to any time, are to the local time in Estonia.

2. LICENCE OF SOFTWARE

2.1 Licence

  1. Licensor grants to the Licensee and the Licensee hereby accepts, a non-exclusive, non-transferable, fee based license with the right to use the Software, subject to the Terms and Conditions, during the term of the Agreement:
    1. to access the Software and configure such in accordance to Licensee’s needs and operations; and
    2. to receive and use the Software Documentation for the purposes of use of the Software for Licensee’s business.
      The License for the avoidance of doubt shall not give the Licensee a right to the source code of the Software.
  2. Licensor shall create the necessary access to the Software through via a specifically designed graphical user interface, accessible through Application Programming Interface (“API”). Such access is strictly confidential, non-transferable and is only to be used by the Licensee. Passwords and logins to the created access will survive for the duration of the Agreement, but replacement passwords and logins may be provided by Licensor if requested by the Licensee.

2.2 Software Improvements

  1. Licensor may install Software Improvements in the Software from time to time and shall provide the Licensee with reports of the errors and “patches” (which correct errors or defects in the Software) which are dealt with in the Software.
  2. The Licensee acknowledges and agrees that, it will be obliged to accept any Software Improvements and that Licensor will intervene in the Software as much as is necessary for the purpose of installing the Software Improvements, save in the case of emergency, and that any Software Improvements the Licensee receives will form part of the Software for the purposes of the Agreement and shall be subject to the same proprietary rights and Licensee’s undertakings set out herein, including but not limited to, those set out in clause 3 below. The Licensee is entitled to use the Software Improvements on the same terms and conditions as the Software but not further or otherwise.

3. INTELLECTUAL PROPERTY RIGHTS AND LICENSEE’S UNDERTAKINGS

3.1 Intellectual Property Rights

  1. The Licensee acknowledges and agrees that the Software, Software Documentation (including the Software Improvements) and all copies thereof (whether in machine-readable or printed form and howsoever and wheresoever arising) and all copyright, database rights, patents, trade secrets, trademarks and other proprietary or intellectual property rights of any nature whatsoever therein, including, without limitation, in the Developed Work, compilations, or collective works thereof and all related technical know-how and all rights therein (regardless of whether pending, perfected, registered, issued or otherwise protectable) (Licensor Intellectual Property Rights) are and will, unless otherwise stated herein or the parties agree otherwise in writing, remain the sole property of Licensor.
  2. Licensor reserves the right to grant licenses or to use or otherwise exploit the Software and the Software Documentation to any other person or body.
  3. In the event that new intellectual property rights evolve or are developed by Licensor from the Software, including but not limited to, inventions, designs or processes evolving as a result of the performance by Licensor of its obligations under this Agreement, including the provision of Software Improvements, the Licensee acknowledges that the same will be the property of Licensor.
  4. The Licensee shall not during or at any time after the expiry or termination of the Agreement in any way dispute or question or take any action to jeopardise, limit or interfere in any manner with Licensor’s ownership and rights with respect to the Software and Software Documentation. The Licensee shall have only those rights in or to the Software and Software Documentation expressly granted to it pursuant to the Agreement.
  5. For the avoidance of doubt, all legal and beneficial right, title and interest in all and any Licensee Intellectual Property Rights, whether pre-existing or independently developed by or on behalf of the Licensee and/or its Affiliates will remain the absolute property of the Licensee or the relevant Affiliate.

3.2 Licensee’s Undertakings

  1. The Licensee undertakes only to use the Software in the manner and for the purposes as set out in the Agreement and only to the extent permitted by the applicable law to the Licensee as a lawful user (i.e. a party with an express right to use). Licensee is obligated to have all necessary authorisations and licentiates of its jurisdiction of governance and use the Software at all times in a legitimate manner and in a manner that will not be to the detriment of the Licensor’s good reputation.
  2. The Licensee undertakes that it will:
    1. not itself or through any Affiliate, subsidiary, agent or third party:
      1. copy, reproduce, translate, adapt, vary, modify or otherwise reproduce the Software, save where the Licensee may copy the Software Documentation to the extent reasonably necessary for use of the Software under this Agreement.
      2. The Licensee shall not develop its own software application with similar features to the Software if such development is a result of directly or indirectly using, copying, reproducing, translating, adapting, varying or modifying the Software’s source code, object code, the Software Documentation and/or the Confidential Information in existence at the time of the Licensee’s software development, or in any way infringing Licensor’s Intellectual Property Rights set out in clause 3.1, in order to develop the Licensee’s software;
      3. reverse engineer, decompile, bug fix, disassemble or otherwise attempt to derive the source code, techniques, processes, algorithms, know-how or other information from the Software (collectively, "Reverse Engineering") or permit or induce the foregoing. If however, directly applicable law prohibits enforcement of the foregoing, Licensee may engage in Reverse Engineering solely for purposes of obtaining such information as is necessary to achieve interoperability of independently created software with the Software, or as otherwise and to the limited extent permitted by directly applicable law, but only if: (a) Reverse Engineering is strictly necessary to obtain such information; and (b) Licensee has first requested such information from Licensor and Licensor failed to make such information available (for a fee or otherwise) under reasonable terms and conditions. Any information supplied to or obtained by Licensee under this section is Confidential Information of Licensor, may only be used by Licensee for the purpose described in this section, and will not be disclosed to any third party or used to create any software which is substantially similar to the expression of Licensor’s Software.
      4. sell, resell, distribute, redistribute, lease, licence, sub-licence or otherwise deal with the Software or any part or parts or variations, modifications, copies, releases, versions or enhancements thereof or have any software or other program written or developed for itself based on any Confidential Information supplied to it by Licensor, save as permitted pursuant to the terms of the Agreement; nor
      5. use the Software or any part thereof for any improper or unauthorised purposes or take any action which is reasonably likely to bring Licensor into disrepute with any relevant regulator;
    2. supervise and control use of the Software and retain the Software under its exclusive control, in accordance with the terms of the Agreement and not to download and or make any copies of the Software; and
    3. not provide or otherwise make available the Software in whole or in part, in any form to any person other than the Licensee’s Affiliates, and any of Licensee’s and its Affiliates employees, agents or contractors, without prior written consent from Licensor; and
    4. effect and maintain adequate security measures to safeguard the Software from access or use by any unauthorised body or person; and
    5. at Licensor’s written request, and at Licensor’s cost, make available to any relevant regulator such information which is in the licensee’s possession or control as the relevant regulator may request of Licensor, within the time frame specified by the regulator.
  3. The Licensee undertakes to, and to procure that its Affiliates and any of Licensee’s and its Affiliates employees, officers, directors and agents shall not remove or alter any trademark, trade name, copyright, or other proprietary notices, legends, symbols, or labels appearing on the Software and Software Documentation delivered to Licensee by Licensor.
  4. The Licensee undertakes to comply fully with all applicable from time-to-time laws, rules and regulations relating to the export of software and/or technical data.
  5. The Licensee shall not participate in any illegal, deceptive, misleading, or unethical practices or other practices that may be detrimental to the Software, Licensor or the public interest. Furthermore the Licensee is obliged to comply with anti- money laundering laws and regulation of national and international authorities at all times. In the event the Licensee is reported and or found liable by any authority to have committed or there is a suspicion to have committed an act of money laundering, sponsoring terrorist activities, or drug trafficking or any other form of proceed form an illegal source or criminal activities and or fraudulent activities, the Licensor shall immediately terminate the Agreement and withdraw the license.
  6. The Licensee will permit Licensor to check the use of the Software and Software Documentation at all times during normal business hours upon reasonable notice from Licensor and will procure that Licensor is provided with such access to Licensee's System, as is reasonably requested by Licensor for such purpose, including but not limited to, checking that the Software is being used in accordance to its license.
  7. The Licensee undertakes to keep all access codes including those that may from time to time be provided as replacement(s) of the initial access codes, provided by Licensor strictly confidential.
  8. The Licensee will be solemnly responsible to monitor and restrict the access and usage of the Software by any person strictly not authorised to use and or access the Software.
  9. The Licensee is also responsible for maintaining any systems of its own, so that no viruses can contaminate the Software.
  10. The Licensee undertakes to notify Licensor of any anticipated change in its corporate status, such as a change of its registered office, business address, name (company name, trade name and business name), re-domiciliation, merger, acquisition, split, transfer of assets that affects the subject of this Agreement and a material change in ownership or control of the Licensee.
  11. The Licensee shall pay all costs and expenses incurred for the access to the internet which is necessary to use the Software as well as for acquiring and maintaining all systems necessary comprising among other things, all hardware, software, databases, domains, webpages and interfaces, website infrastructure, back office systems, CRM functions, financial reporting systems and anything related to its business, helpful and ancillary to the use of the Software.
  12. The License shall promptly and without unreasonable delay, provide and make available to Licensor all materials requested by Licensor to proceed with the set -up of the Software in the environment of the Licensee.
  13. The Software shall be fully managed by the Licensee as part of Licensee’s environment of business and operational systems.

4. FEES

4.1 Fees

  1. The Licensee shall, subject to clause 4.2, pay to Licensor the non-refundable and non-creditable fees which shall be the Monthly Fees/Set Up Fees (the Fees), in consideration of the grant of the Licence to the Licensee.
  2. In addition:
    1. Licensor retains the right to charge such amount as may be agreed in writing between Licensor and the Licensee in respect of Software services requested by the Licensee in addition to those to be provided pursuant to the terms of the Agreement;
    2. after the expiry of the Initial Term, fees payable under the Agreement may be subject to increase. The revised fees will take effect on expiry of the period expressly referred in the notice for such increase, unless the Licensee notifies Licensor within such period that it wishes to terminate the Agreement for reasons concerning the increase of the Fees;
    3. the Licensee shall not be entitled to withhold payment of any sum by reason of any right of set-off or any claim or dispute with Licensor, whether relating to the quality or performance of the Software or otherwise.

4.2 Payment

  1. Licensor will issue an invoice in respect of any fees due under the Agreement and the Licensee shall procure that all payments due under the Agreement are paid by electronic funds transfer to such bank account as Licensor may from time to time notify the Licensee in writing within five (5) Business days of receipt of such invoice for the relevant fee, clear of any outgoing, intermediary and incoming bank charges resulting from the payment. All payments shall, unless otherwise specified, be made in Euro. In the event of late or no payment, Licensor may consider this as material breach of the present Agreement.
  2. The fees payable under the Agreement shall be solely for the Licence of the Software and shall not relate to any other services which Licensor may provide to the Licensee including, but not limited to hosting services, connectivity services, technical support services or any other service.
  3. In addition to the option in clause 9 below, if the Licensee fails to pay any amount payable by it under the Agreement, on condition that such amounts are due and payable, Licensor reserves the right to claim an annual interest of 9% on the balance due.
  4. The fees payable pursuant to the Agreement are exclusive of all taxes, duties or levies, however designated or computed. Licensee shall be responsible for and pay all taxes based upon the use of Software, or upon payments due under the Agreement, including but not limited to sales, use, or VAT, duties, withholding taxes and other assessments now or hereafter imposed on or in connection with the Agreement.

5. WARRANTY

5.1 The Licensee acknowledges that the Software has not, (except as expressly set out in this Agreement) been produced to meet the individual requirements of the Licensee and cannot be tested in every possible combination.

5.2 Licensor warrants and undertakes for the duration of this Agreement that:

  1. it will discharge its obligations to provide the Software under this Agreement with the due skill, care and diligence required according to good industry practice;
  2. at the time of the installation, the Software (together with any subsequent Software Improvements) does not, so far as Licensor is aware having exercised best efforts, contain any Trojan horse, worm, logic bomb, time bomb, back door, trap door or keys, as such terms are commonly understood in the Software development industry, which is likely to materially harm the Software; and
  3. so far as Licensor is aware having exercised best efforts, the Licensee’s use and operation of the Software in accordance with the terms of this Agreement will not infringe any intellectual property rights of any nature whatsoever of a third party.

Except as expressly stated in this Agreement, Licensor excludes all other representations, conditions, terms or warranties of any kind, whether express or implied (either in fact or by operation of laws, common law, case law or otherwise) with respect to the Software and/or the Software Documentation, including but not limited to, the implied conditions as to satisfactory quality and fitness for purpose. Except as expressly stated in this Agreement, Licensor does not warrant that the operation of the Software will be entirely uninterrupted or error free, or that all Software defects can be corrected and or the use of the Software in association with third party products.

5.3 Licensor makes no warranty or representation that the Software will be free from all viruses.

5.4 Licensor shall use all reasonable efforts to provide uninterrupted availability and operation of the Software and in any event excluding reasonable periods of downtime for maintenance, installation of periodic upgrades and related support.

5.5 Each party warrants and represents to the other for the duration of the Agreement, with respect to itself, that:

  1. it is duly incorporated and validly existing under the laws of its jurisdiction of incorporation;
  2. it has obtained all necessary consents, powers, licenses and authorizations and has the requisite corporate power and authority to enter into the Agreement and to perform its obligations hereunder;
  3. neither the Agreement nor the implementation of the transactions contemplated by it (including, but not limited to, in the case of the Licensee only, the execution of trades by the Licensee Customers on the Software) will result in:
    1. a violation or breach of any provision of the memorandum and articles of association, bye-laws or equivalent constitutional documents of it;
    2. a violation or breach of any applicable laws or regulations or any order or decree or judgment of any court, governmental agency or regulatory authority applicable to it; or
    3. a requirement for the party to obtain any consent or approval of, or give any notice or make any registration with, any governmental, regulatory or other authority which has not been obtained or made at the date of the Agreement on a basis which is unconditional and cannot be revoked;
  4. the Agreement and the obligations created thereunder are binding upon it and enforceable against it in accordance with their terms and that it is not subject to any law or regulation which prevents that party’s performance of the Agreement; and
  5. there is no reason or reasons which will, or might reasonably be expected to, lead to the revocation, refusal or application of conditions to any current license or registration of the Licensee and/or the Licensor, as applicable.

6. INDEMNITY

6.1 Licensor agrees to indemnify and defend at its own expense the Licensee (save as otherwise set out herein) from and against any and all claims, costs, damages, losses or expenses (including reasonable legal fees) suffered or incurred by the Licensee in respect of claims of infringement of any copyright, patents, trademarks, industrial designs, or other intellectual property rights relating to the Software, provided that:

  1. the Licensee promptly, and in any event within thirty (30) Business Days of becoming aware of the claim, notifies Licensor in writing of any such claim and Licensor has sole control of the defence of such claim, subject to the undertaking by Licensor to use competent counsel; and
  2. the Licensee gives Licensor such assistance, information and co-operation, at Licensor’s expense, as Licensor may reasonably require to settle or oppose any such disputes.

6.3 For the avoidance of doubt, Licensor shall have no liability for, and Licensee shall indemnify from and against all reasonable loss, costs and expenses suffered by Licensor arising from third party actions, proceedings and claims only to the extent attributable to the Licensee from:

  1. any failure by the Licensee to perform its obligations under the Agreement;
  2. modification, alteration, enhancement variation or addition to the Software not performed or authorised in writing by Licensor;
  3. incorrect or improper use, abuse or corruption of the Software or the Software Documentation including misuse of the Software on any systems other than the specified hardware platform for such Software;
  4. use of other than the then-supported, unaltered version of the Software as provided by Licensor or otherwise authorised or approved by Licensor in accordance with the terms of this Agreement, unless the infringing portion is also in the then-supported, unaltered or authorised version.

Licensee shall not be entitled to settle or compromise any action, proceeding or claim related thereto without the prior written consent of Licensor (not to be unreasonably withheld or delayed).

6.4 Licensee agrees to indemnify and defend at its own expense Licensor (save as otherwise set out herein) from and against any and all claims, costs, damages, losses or expenses (including reasonable legal fees) suffered or incurred by Licensor in respect of claims of infringement of any copyright, patents, trademarks, industrial designs, or other intellectual property rights relating to the Licensee’s Intellectual Property Rights. Licensee shall not be entitled to settle or compromise any claim related thereto without the prior written consent of Licensor (not to be unreasonably withheld or delayed).

7. LIMITATION OF LIABILITY

7.1 The remedies provided herein are Licensor’s and Licensee’s sole and exclusive remedies. Neither Licensor nor the Licensee and their respective suppliers shall be liable for any claim against the Licensee or Licensor (as the case may be) by any third party with respect to the infringement of any intellectual property rights or otherwise, save as set out in clause 6 above.

7.2 Subject to clause 7.6, Licensor and the Licensee expressly exclude liability for any loss of profits, loss of business, loss of revenue, goodwill or anticipated savings, loss of use or data, interruption of business, and for indirect, special, incidental or consequential damages of any kind, even if the other has been advised of the possibility of such damages and notwithstanding any failure of essential purpose of any limited remedy.

7.3 Subject to clause 7.6, the entire liability of Licensor towards the Licensee for damages in any way related to the subject matter of the Agreement, and regardless of whether the claims for such damages are based in contract, tort (including negligence) or otherwise, shall not exceed the total amount received by Licensor from the Licensee during any twelve (12) month period of this Agreement preceding the event that resulted to the damages.

7.4 In no event will Licensor or its suppliers be liable for:

  1. failure of the Software to perform the facilities and functions set out in the Agreement, save as expressly provided herein; or
  2. any misuse of the Software or the Software Documentation by Licensee Customers or the Licensee’s agents and contractors and any use of the Software or the Software Documentation by Licensee Customers, in so far as such use relates to the performance and/or enforcement of transactions.

7.5 Save as set out herein, the rights and remedies provided for pursuant to the Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies which the party may possess at law or in equity.

7.6 Nothing in this Agreement shall be taken as excluding or limiting the liability of Licensor or the Licensee, as appropriate, in respect of the indemnity in clause 6, breach of clause 8 (confidentiality), such party’s fraud or wilful misconduct.

7.7 For the avoidance of doubt, the parties shall take reasonable steps to mitigate their losses, costs or damages arising out of or in relation to this Agreement.

8. CONFIDENTIAL INFORMATION

8.1 Each party agrees to treat as confidential and keep secret all Confidential Information, to use such Confidential Information only as permitted under the Agreement, to take all reasonable precautions to prevent any unauthorised disclosure or use of Confidential Information, and must not without the consent of the party disclosing the information (the Disclosing Party):

  1. exploit the Confidential Information in whole or in part, other than is strictly necessary to enable the party receiving the information (the Receiving Party) to perform its obligations hereunder; nor
  2. disclose the Confidential Information in whole or in part or make any aspect of the Confidential Information available to any person, subject always to clause 8.2 below, other than to:
    1. those employees, agents, contractors of the Receiving Party who need to know or to use the same to further permitted uses of such information hereunder; and
    2. to any person who is for the time being appointed by either party to maintain the Software, and then only to the extent necessary to enable such person to do so.

8.2 The Receiving Party undertakes to ensure that any person to whom any part of the Confidential Information is disclosed pursuant to clause 8.1(b) is made aware prior to the disclosure that the Confidential Information is confidential and that they owe an express duty of confidence to the Disclosing Party and to take appropriate steps to implement and enforce such confidentiality obligations.

8.3 Each party agrees to promptly notify the other if it becomes aware of any breach of confidence pursuant hereto and to give the other party all reasonable assistance in connection with any proceedings which that party may institute.

8.4 The obligations of confidentiality set out in this clause 8 shall survive termination of the Agreement and, as soon as possible following termination of the Agreement, but in any event within three (3) months thereafter, the Receiving Party shall, and shall procure that any of its employees with access thereto shall, upon the Disclosing Party’s instructions, either deliver to the Disclosing Party or destroy, all copies of the Software, Software Documentation and Confidential Information and any other materials provided by the Disclosing Party to the Receiving Party pursuant hereto, which are in its possession or under its control, and shall deliver to the Disclosing Party a certificate signed by an officer of the Receiving Party certifying that the same has been done, unless the Receiving Party has obtained the Disclosing Party’s prior written consent to retain one copy for archive purposes which the Disclosing Party may authorise, together with any conditions the Disclosing Party may impose in respect of such continued retention.

8.5 Unless required by law, and except to assert its rights hereunder or for disclosures to its own employees on a “need to know” basis, both parties agree not to disclose the detailed terms of the Agreement or matters relating thereto without the prior written consent of the other, which consent shall not be unreasonably withheld.

8.6 If either party is requested to disclose any of the other party’s Confidential Information pursuant to any judicial or governmental order, such party will not disclose such Confidential Information without, to the extent practicable, first giving the other written notice of the request and reasonable opportunity to contest the order and/or obtain confidential treatment for such disclosure.

8.7 Licensor may only use the Licensee’s name in Licensor’s own marketing material, including Licensor’s website, with the prior written consent of the Licensee for advertising purposes only and, subject to relevant rules and regulations, for so long as the use of the Licensee’s name would not objectively be considered to be harmful to the reputation of such party or would not objectively be considered likely to lead any person to reduce their level of business with such party.

9. TERM AND TERMINATION

9.1 In addition to the right of the party to terminate the Agreement without cause by notice as set out in the Business Terms of the Agreement, either party may terminate the Agreement at any time and with immediate effect by serving a notice of termination on the other party if:

  1. the other commits any breach of any term of the Agreement and fails to remedy such breach within twenty-one (21) Business Days after the receipt of a request in writing from the first party to do so (such request to contain a warning of that party’s intention to terminate); or
  2. the other commits any material or continuing breach of any term of the Agreement which is not capable of being remedied, including but not limited to any breach of clause 2.1 or clause 5 or 6.

9.2 Either party may terminate the Agreement at any time and with immediate effect by serving a notice of termination on the other party if the other party:

  1. presents a petition or has a petition presented against it by a creditor for the appointment of an administrator or for its winding up;
  2. convenes a meeting to pass a resolution for voluntary winding up or the making of an administration order;
  3. enters into any liquidation (other than for the purposes of a bona fide reconstruction or amalgamation);
  4. calls a meeting of its creditors, or has a receiver, administrator, administrative receiver, liquidator or any other similar officer or insolvency practitioner appointed in respect of all or any of its undertakings or assets;
  5. suspends payment of its debts or becomes unable to pay its debts as they fall due, or the value of its assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities;
  6. refuses or becomes unable to meet any sums due to the other party when such sums fall due;
  7. ceases to carry on business as a going concern or ceases to be in a position to fulfill the Agreement;
  8. any security created by any mortgage or charge becomes enforceable against the party and the mortgagee or charge takes steps to enforce the security or charge;
  9. the party takes or suffers any similar action or occurrence in any jurisdiction;
  10. the party ceases or threatens to cease to carry on business or any substantial part of its business;
  11. the party has been convicted of any criminal or fraudulent offence; or
  12. any relevant regulator, requires the Agreement to be terminated or imposes any requirement or restriction which materially affects the ability of either party to take the action required of it under the Agreement, including but not limited to, revoking or amending a license granted to that party in a manner which is prejudicial to the interests of the other party, or Licensor has reasonable cause to suspect that such action will be taken in relation to a party.

9.3 Termination of the Agreement shall not act as a waiver of any breach of the Agreement and shall not act as a release of either party from any liability for breach of such party’s obligations under the Agreement.

9.4 Both Licensor and the Licensee will have the right to terminate this Agreement with no reason provided that each party give the other a 60 days’ notice stating in such notice the exact date of termination.

9.5 Upon termination or expiration of the Agreement:

  1. Licensor will be discharged from any further obligation to perform under the Agreement and all Licenses granted pursuant to clause 2.1 for the use of the Software and Software Documentation shall terminate;
  2. the Licensee shall pay to Licensor on demand all sums then properly due and owing, including all agreed costs, and expenses and other fees incurred by Licensor pursuant hereto in connection with the performance of its obligations to the Licensee up to the date of such termination for which the Licensee has provided its written approval and Licensor has paid or is legally obliged to pay, and all arrears of fees, charges or other payments arising in respect of the Software or the Agreement, on condition that such amounts are due and payable to Licensor, and that Licensor will use reasonable endeavours to avoid or mitigate such costs or expenses; and
  3. subject to clause 9.5(a) the Licensee and Licensor (as the case may be) shall comply with its obligations to return or destroy Software Documentation, if appropriate, and Confidential Information set out in clause 8.4 above.

9.5 Termination will be without prejudice to any rights and remedies that the terminating party may have in law or equity and shall not affect any accrued rights or liabilities of either party nor the coming into force or the continuance of force of any provision which is expressly or by implication intended to come into force or continue to be in force on or after such termination including, clauses 3, 4, 7, 8 and 10 to 20 which shall survive the termination of the Agreement.

10. NOTICES

10.1 Any notice or other communication to be given by one party to the other under or in connection with the Agreement, shall be in writing and signed by or on behalf of the party giving it. It shall be served by delivering it by hand, or sending it by pre-paid recorded delivery or special delivery to the address set out in clause 10.2 and in each case marked for the attention of the relevant party set out in clause 10.2 (or as otherwise notified from time to time in accordance with the provisions of the Agreement). Any notice so served by hand post shall be deemed to have been duly given:

  1. in the case of delivery by hand, when delivered; and
  2. in the case of post, at 10am on the second Business Day following the date of posting, provided that in each case where delivery by hand occurs after 6pm on a Business Day or on a day which is not a Business Day, service shall be deemed to occur at 9am on the next following Business Day. References to time in this clause are to local time in the country of the addressee.

10.2 The addresses of the parties for the purposes of clause 10.1 are as set out in the Agreement or as notified from one party to the other at any given time this Agreement will be valid.

10.3 A party may notify the other parties to the Agreement of a change to its name, relevant addressee or address for the purposes of clause 10.2, provided that, such notice shall only be effective on:

  1. the date specified in the notice as the date on which the change is to take place; or
  2. if no date is specified or the date specified is less than 5 Business Days after the date on which notice is given, the date following 5 Business Days after notice of any change has been given.

10.4 In proving such service, it shall be sufficient to prove that the envelope containing such notice was properly addressed and delivered either to the address shown thereon or into the custody of the postal authorities as a pre-paid recorded delivery, special delivery or registered post letter.

11. SEVERABILITY

If any provision of the Agreement is held to be invalid or unenforceable, then such provision shall (so far as it is invalid or unenforceable) be given no effect and shall be deemed not to be included in the Agreement but without invalidating any of the remaining provisions of the Agreement. The parties shall then use all reasonable endeavors to replace the invalid or unenforceable provisions by a valid and enforceable substitute provision the effect of which is as close as possible to the intended effect of the invalid or unenforceable provision.

12. FORCE MAJEURE

Licensor will be under no liability to the Licensee in respect of anything which, apart from this provision, may constitute breach of the Agreement arising by reason of force majeure, namely, circumstances beyond the control of Licensor, including but not limited to, acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riot, civil commotion, including acts of local government and parliamentary authority; inability to supply the Software, materials, breakdown of equipment which inability affects the entire software development industry, and labor disputes of whatever nature and for whatever cause arising including (but without prejudice to the generality of the foregoing) work to rule, overtime bars, strikes and lockouts and whether between either of the parties hereto and any or all of its employees and/or any other employer and any or all of its employees and/or between any two or more groups of employees (and whether of either of the parties to the Agreement or any other employer).

13. VARIATION

No variation of the Agreement (or of any of the documents referred to in the Agreement) shall be valid unless it is in writing and signed by or on behalf of each of the parties to it. The expression “variation” shall include any variation, supplement, deletion or replacement however effected.

14. WAIVER

14.1 No failure or delay in exercising or relaxation by Licensor of any of these terms and conditions shall operate as a general waiver of the relevant term, condition, right or power and no partial or single exercise of any term, condition, right or power shall preclude any other or further exercise of some or any of Licensor’s other rights and remedies against the Licensee.

14.2 No waiver of any breach of any term of the Agreement shall (unless expressly agreed in writing by the waiving party) be construed as a waiver of a future breach of the same term or as authorizing a continuation of the particular breach.

15. NO PARTNERSHIP OR AGENCY

Nothing in the Agreement (or any of the arrangements contemplated by it) is or shall be deemed to constitute a partnership between the parties nor, except as may be expressly set out in it, constitute either party the agent of the other for any purpose. Neither the Licensee nor its agents have any authority of any kind to bind Licensor in any respect whatsoever.

16. ASSIGNMENT

Neither party may assign this Agreement or any interest hereunder except with the prior written consent of the other. Licensor may transfer its rights and obligations under this Agreement (in whole or part) at any time to any Affiliate or to any successor of any part of its business or operations, provided that 30 Business Days’ written notice of such proposed assignment is given to the Licensee.

17. OFFER OF EMPLOYMENT

The parties undertake that they shall not for the duration of the Agreement and for a period of 12 months following termination solicit, procure or attempt to procure the employment of any persons employed at any time by the other party during the course of the Agreement. Nothing in this Agreement shall prevent a party at any time from running recruitment advertising campaigns nor from offering employment to any of the other party’s partners, members, directors or employees, as the case may be, who may respond to any such campaign.

18. FURTHER ASSURANCE

Each party agrees to execute such documents and waivers and generally do everything further that may be necessary to fulfil its obligations under the Agreement.

19. DATA PROTECTION

Licensee shall be exclusively responsible for all Licensee Customers data and its protection under the rules and regulations of its jurisdiction and the Licensor shall not be considered either as controller or processor of such data.

20. ENTIRE AGREEMENT

The Agreement, including the Schedules hereto, sets out the entire agreement and understanding between the parties in respect of the provision of the products and services hereunder and supersedes all proposals or prior agreements whether oral or written, and all communications between the parties relating to the subject matter of the Agreement and all past courses of dealing or industry custom. It is agreed that no party has entered into the Agreement or any other document referred to in the Agreement in reliance upon any statement, representation, warranty or undertaking of the other party or any of the other party’s employees, officers, agents or advisers which is not expressly set out or referred to in the Agreement or such other document.

21. GOVERNING LAW

The Agreement shall be governed by and construed in accordance with the laws of Estonia without reference to its conflicts of law provisions. Any such dis¬pute regarding the Agreement shall be subject to the exclusive jurisdiction of the courts of Estonia, and the parties agree to submit to the jurisdiction and venue of these courts.

By signing the Business Terms of Agreement you agree to these Terms and Conditions.

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