IMburse AG Terms and Conditions

1.   DEFINITIONS AND INTERPRETATION
 

1.1   Definitions

In this Agreement:

"Administrators" means certain designated employees of the Customer who belong to the Customer's IT department.
 

"Affiliate" means any Person which, directly or indirectly, controls, is controlled by or is under common control with another Person, and for the purposes of this definition, "control" (including, with correlative meanings, the terms "controlled by" or "under common control") means the power to direct or cause the direction (through the election or appointment of the Persons who direct) of the management and policies of any Person, whether through the ownership of securities, by contract or otherwise.
 

"Agreement" means the agreement concluded between the Service Provider and the Customer incorporating these Terms and Conditions and the Plan.
 

"API" means the Software's application programming interfaces provided by the Service Provider for usage by the Customer.
 

"API Documentation" means the description of the Software's API provided by the Service Provider to the Customer during the setup process.
 

"Available" has the meaning assigned to such term in Clause 2.1(a) of Schedule 1.
 

"Average Response Time" has the meaning assigned to such term in Clause 2.2(a) of Schedule 1.
 

"Business Day" means a day, other than a Saturday, Sunday or statutory holiday, when banks are generally open for the transaction of banking business in Zurich, Switzerland, if the term "Business Day(s)" is used in relation to the Service Provider, or at the corporate seat of the Customer, if the term "Business Day(s)" is used in relation to Customer, respectively.
 

"Confidential Information" means all information and data, and all documents and other tangible materials and things which record it, relating to or used in a Party's business, whether or not owned by a Party or any of its Affiliates, which is not generally known to the public or to the other Party or its competitors, and was disclosed by a Party (the "Disclosing Party") to the other Party (the "Receiving Party"). Confidential Information does not include any information that:
 

  (a)  is in or comes into the public domain other than as a result of a disclosure by the Receiving Party;

  (b)  was known to the Receiving Party or in its possession prior to its being furnished by or on behalf of the Disclosing Party;

  (c)  becomes available to the Receiving Party from a source other than the Disclosing Party, without such disclosure being a breach of confidentiality; or

  (d)  was independently developed by the Receiving Party without reference to the Disclosing Party's Confidential Information.

"Customer Data" means all information and data provided by or on behalf of the Customer to the Service Provider by way of using the Software. All Customer Data shall be Confidential Information.

"Customer's Interfaces" has the meaning assigned to such term in Clause 8(a).

"Fees" shall mean the fees or other charges for the Services performed pursuant to this Agreement.

"Force Majeure Event" has the meaning assigned to such term in Clause 17.

"Incident" means any unavailability of the Software and any deviation of the Software's functionality from the functionality described in the Software's Reference Manual and the API Documentation.

"Intellectual Property" means any trademarks, trade names, business names, brand names, domain names, service marks, copyrights, including any performing, author or moral rights, designs, inventions, patents, franchises, formulas, processes, know-how, technology and related goodwill, and any patent applications, patent registrations, issued patents, continuations in part, divisional applications or analogous rights or license rights therefore, and all other intellectual or industrial property.

"Intellectual Property Rights" means any and all rights in and to Intellectual Property.

"Invoicing Period" means the invoicing period set out in the Plan.

"Maintenance Window" has the meaning assigned to such term in Clause 4.3(e).

"Marketplace" means the Microsoft Azure Marketplace.

"Microsoft" means the Microsoft entity which invoices the Customer or charges its credit card for the purpose of paying for the

Customer's usage of the Software under this Agreement.

"Operating Services" has the meaning assigned to such term in Clause 4.3(a).

"Plan" means the plan offered by the Service Provider on the Marketplace and chosen by the Customer using the Marketplace. The Plan forms an integral part of this Agreement.

"Recurring Fee" has the meaning assigned to such term in Clause 9.1(a)(i).

"Reference Manual" means the technical and user interface documentation of the Software provided by the Service Provider to the Customer during the setup process.

"Response Time" has the meaning assigned to such term in Clause 2.2(a) of Schedule 1.

"Service Hours" means the service hours set out in Schedule 1.

"Service Levels" means the service levels set out in Schedule 1.

"Service Provider's Worker" shall mean any director, officer, employee, agent, representative, contractor or subcontractor of, or under the control and direction, of the Service Provider or an Affiliate of the Service Provider.

"Services" means any services to be provided by the Service Provider to the Customer under this Agreement.

"Setup Services" has the meaning assigned to such term in Clause 4.2.

"Service Credit" shall mean a service credit owed by the Service Provider pursuant to Clause 4 of Schedule 1.

"Severity Levels" or "Levels" have the meaning assigned to such terms in Schedule 1.

"Software" means the software which the Service Provider makes available to Customer for use under this Agreement.

"Support Services" has the meaning assigned to such term in Clause 4.4.

"Tax" means any tax, duty, or levy imposed by any governmental body.

"Tenant" means a tenant created for the Customer in the Software.

"Term" means the term of this Agreement as provided for by the Plan.

"Terms and Conditions" means this document.

"Transaction" means any initiation of a collection or disbursement request via the Software's API, irrespective of whether the collection or disbursement is successfully processed by the payment service provider.

"Transaction Fee" has the meaning assigned to such term in Clause 9.1(a)(i).

"VAT" means any consumption and use, goods and services, harmonized sales, value-added, sales and other similar Taxes that ultimately are determined to be exigible on Services.

1.2  Interpretation

  (a)  Any term denoting the singular shall be interpreted to also denote the plural and vice versa.

  (b)  Any reference to a "Clause" shall be deemed to be a reference to a clause of these Terms and Conditions unless the circumstances provide otherwise.

  (c)  Any reference to a "Schedule" shall be deemed to be a reference to a schedule of these Terms and Conditions unless the circumstances provide otherwise.

  (d)  "Including" shall be deemed to mean "including (without limitation)".

2.  HIERARCHY

  (a) In case of conflicts between the Plan, these Terms and Conditions and the Schedules, the following hierarchy shall apply (documents set out higher in the following list shall prevail over documents set out lower):

    (i)    the Plan;

    (ii)   these Terms and Conditions;

    (iii)  the Schedules to these Terms and Conditions.
 

  (b)  Lower ranking documents may however deviate from higher-ranking documents (and prevail over the higher-ranking documents) where:

    (i)    the higher-ranking document explicitly provides for deviations in lower-ranking documents (e.g. by stating that a provision shall apply "unless otherwise agreed" or similar); or

    (ii)   the lower-ranking document explicitly refers to the provision of the higher-ranking document which it aims to deviate from and explicitly states that it aims to deviate from such provision.
 

  (c)  In case of conflict between terms set out in documents of the same hierarchy level, the terms set out in the document agreed upon later than the other document(s) shall prevail (application of the lex posterior rule).

3.  LICENSE

3.1  License Grant

The Service Provider hereby grants Customer a right to use the Software for its own business purposes as a SaaS solution hosted by the Service Provider, and subject to the terms and restrictions as set forth in Clause 3.2 hereinafter (the "License").

3.2  License Terms and Restrictions

  (a)  The License is a non-exclusive, non-transferable, non-sublicensable right to use the Software as provided (and hosted) by the Service Provider.

  (b)  The License shall begin on the effective date of this Agreement and shall expire upon the termination of this Agreement.

  (c)  Usage of the Software is restricted as set out in the Plan.

  (d)  Customer shall not allow any third parties (except for the Affiliates of the Customer) to access and/or use the Software or otherwise make the Software available to any such third parties or use the Software on behalf of any such third parties without the Service Provider's prior written consent.

  (e)  The Service Provider shall have the right to take any and all measures necessary or useful to prevent or terminate any unauthorized usage by third parties.

4.  SERVICES AND SERVICE PROVIDER'S RESPONSIBILITIES

4.1  Performance of the Services

The Service Provider shall provide the Services set out in this Agreement in accordance with the Service Levels.

4.2  Setup

The Service Provider shall set up the Software for Customer's use, which shall comprise the following services (collectively, the "Setup Services"):

  (a)  initial account setup;

  (b)  provision of sandbox and production environment access.

4.3  Operation of the Software

  (a)  The Service Provider shall provide the Software to Customer as a SaaS solution accessible over the Internet (the "Operating Services"). The Software shall be accessible to Customer in its then current version. The interconnection point (the "Interconnection Point") shall be the interface of the router connecting the data center used by the Service Provider for the hosting of the Software to the Internet. The Service Provider shall not be responsible for the availability of the connection between the Interconnection Point and Customer's network or clients.

  (b)  The Service Provider will update the Software to new versions at its discretion and make those updates available to Customer under this Agreement. Updates shall be notified to Customer reasonably in advance.

  (c)  The Service Provider reserves the right to amend the Software's Reference Manual. Such amendments will not decrease the scope of operation or functionality of the Software except as specifically agreed by Customer.

  (d)  The Service Provider shall be free in amending the Software's API at any time. Any amendment of the API making necessary changes in the Customer's Interfaces, and any deprecation of API functionality, shall be announced to the Customer six (6) months in advance. The Customer will then have to update the Customer's Interfaces within such timeframe.

  (e)  The Service Provider shall notify the Customer reasonably in advance of planned outages of the Software (each a "Maintenance Window") during which the Software will be unavailable. The Service Provider reserves the right to use shorter announcement periods should this be unavoidable due to technical or security reasons.

 

4.4  Support

  (a)  The Service Provider shall provide second and third level support to the Customer's Administrators (the "Support Services").

  (b)  As part of the Support Services, the Service Provider shall render the following services with respect to the then current version of the Software (as well as, during the interval set out in Clause 4.3(d), the last version of the Software):

    (i)    continuously monitor for Severity Level 1 Incidents and disruptions of the access to the Software in its sphere of responsibility;

    (ii)   receive Incident reports from the Customer;

    (iii)  analyze and remedy all Incidents reported by the Customer or recognized by the Service Provider's monitoring tools in line with the Service Levels.

  (c)  Incidents may be reported by the Customer by using the following communication vectors:

    (i)   Service provider will make available a ticketing system, which may be operated by a third party, that needs to be used to log all Incidents.

    (ii)  Service provider reserves the right to change the ticketing system at any time and shall notify Customer at least 3 months prior to any change.

  (d)  All Incident reports shall be accompanied by a reasonable detailed description of the steps leading to the Incident.

  (e)  Should an analysis of incidents reported by the Customer show that such Incidents are not due to the Software or the operation thereof by the Service Provider, then the Customer shall remunerate the Service Provider's respective efforts on a time and materials basis at the then-current rates of the Service Provider.

4.5  No further Services

  (a)  Aside from the Setup Services, the Operating Services and the Support Services, the Service Provider shall have no obligation under this Agreement to render any support, development or other similar services with respect to the Software. This also includes the setup of new payment service providers. Any such services shall be rendered solely based on a separate written agreement.

  (b)  Should the Service Provider, for whatever reason, at its own discretion render Services other than the Services set out above to be covered by the Fees set out in this Agreement, then such Services shall be invoiced to the Customer on a time and materials basis at the then applicable rates of the Service Provider.

5.  HANDLING OF CUSTOMER DATA

  (a)  The Service Provider shall:

    (i)   store Customer Data in adequately operated and secured data centers (the "Data Centers");

    (ii)  not store any Customer Data outside of the Data Centers without Customer's express prior written consent, it being understood that the Service Provider's Workers located outside of the Data Center may have access to Customer Data when rendering Services under this Agreement. Notwithstanding the foregoing, it is understood that:

  1. certain elements of Customer data may be subject of service provision by other cloud providers that are used by the Software, which might lead to Customer Data being temporarily stored outside of the Data Centers (it being understood however that all such third-party providers shall not permanently store any such data);

  2. monitoring logs may be stored temporarily outside of the Data Centers; and

  3. Service Provider workers may have to temporarily download certain datasets in order to fix errors arising in the usage of the Software (i.e. for debugging purposes) or for product development analysis purposes, which temporary storage of data shall be deleted promptly once the respective issue has been fixed or analysis made.

  (b)  The Service Provider will only use Customer Data as necessary to perform the Services and will not use the Customer Data for any other purpose. Service Provider may however use the Customer Data for purposes other than the performance of Services on an anonymized or aggregated basis (the "Anonymized Data"). Service Provider will use industry best practices to ensure that the Anonymized Data cannot be de-anonymized, reverse engineered, combined with other data or be used by any other method, in any manner that might potentially indicate that the Anonymized Data relates to Customer or any identifiable individual.

  (c)  The Service Provider will use industry best practices in handling Customer Data and in providing the Services. The Service Provider will use encryption of the Customer Data in transit and at rest. In no event will the Service Provider use data protection practices that are less stringent than what a prudent service provider would use in comparable circumstances.

  (d)  If the Service Provider becomes aware that any Customer Data within the Service Provider's possession, whether pursuant to providing the Services or otherwise, has been misappropriated or otherwise accessed, used or disclosed contrary to applicable privacy laws or this Agreement (collectively, a "Data Breach"), Service Provider shall immediately notify Customer of the Data Breach and provide all reasonable assistance to Customer in responding to the Data Breach.

 

6.  SUBCONTRACTORS

  (a)  The Service Provider may subcontract any part of its Service provision under this Agreement (e.g. by usage of a third-party cloud platform vendor) and/or otherwise use third party vendors to render its Services under this Agreement without the prior consent of Customer.

  (b)  The Service Provider shall be and remain wholly liable for the acts and omissions of any subcontractors as if such acts and omissions had been made by the Service Provider.

 

7.  THIRD-PARTY TERMS

  (a)  In cases where the Service Provider would contract directly with third-party payment or settlement providers (such as providers of gift card or voucher services), such third-party provider might require the Service Provider to pass on certain terms to the commercial users of the third-party solution.

  (b)  In such cases, the Service Provider might make the usage of the third-party provider services dependent on the acceptance of its terms, which would be displayed for acceptance upon the activation of the third-party provider's service in the administration portal of the Software. In such case, the Service Provider may rely on the accepting click of the Customer's user as acceptance of such terms by the, and it shall be the Customer's responsibility to ensure that its administrative users have the necessary authority to accept such terms of the Customer's behalf.

8.  CUSTOMER'S RESPONSIBILITIES

  (a)  The creation, operation and maintenance of the Customer-side interfaces to the Software's API (the "Customer's Interfaces") shall be the sole responsibility of the Customer. The Customer shall only use the API as described in the API Documentation.

  (b)  The Customer shall also be solely responsible for any data conversions necessary to integrate the Software with its systems.

  (c)  The Customer shall use the Software solely in accordance with the restrictions set out in this Agreement and/or any other contractual documents applicable between the parties as well as in accordance with the technical specifications set out in the Reference Manual and the API Documentation.

  (d)  The Customer shall be responsible for the safekeeping of all of its encryption keys used in connection with the Software, and the    (e)  Customer is aware that third parties may be able to create Transactions on behalf of the Customer if its encryption keys are leaked to such third parties.

The Customer shall be responsible for the conclusion of the necessary agreements with the payment service providers.

  (f)  Furthermore, Customer shall also:

    (i)     provide the Service Provider with such information, co-operation, assistance, facilities and resources as reasonably required and requested by the Service Provider to enable it to perform the Services;

    (ii)   act reasonably and in good faith and give prompt attention to any matter raised by the Service Provider, particularly relating to Customer's obligations and/or the performance of the Services;

    (iii)   implement reasonable and appropriate business continuity and disaster recovery measures to mitigate against any reasonably foreseeable risks;

    (iv)   maintain and be responsible for Customer Data back-up and relevant restoration measures;

    (v)    be solely responsible for compliance with all know-your-client (KYC) and other anti-money laundering laws and regulations; and

    (vi)   create the technical and other prerequisites necessary for the Service Provider to render its Services; and

    (vii)  promptly notify the Service Provider after becoming aware of any Incident.

9.  FEES, INVOICES AND PAYMENT

9.1  General

  (a)  The Customer shall pay to the Service Provider for its Services a recurring fixed fee (the "Recurring Fee") and, in certain cases, an additional Fee per Transaction (the "Transaction Fees").

  (b)  All Fees and rates are quoted excluding VAT, if any.

  (c)  All Fees are invoiced to the Customer by Microsoft on the Service Provider's behalf or charged by Microsoft on Service Provider's behalf to a credit card provided by the Customer.

  (d)  The Payment of Fees to Microsoft for the benefit of the Service Provider shall be deemed a payment to the Service Provider.

9.2  Recurring Fee

  (a)  The Recurring Fee shall comprise the making available of the Software and a certain amount of Transactions. It shall be invoiced at the beginning of each respective Invoicing Period.

  (b)  The Recurring Fee shall be invoiced at the beginning of the invoicing period for the whole Invoicing Period.

  (c)  In case of this Agreement beginning or ending during the Invoicing Period, the Recurring Fees shall be invoiced on a pro-rata basis.

  (d)  The Recurring Fee is based on the number of Tenants named in the Plan (or, absent a specification, one Tenant). If additional Tenants are required, then the Recurring Fee shall increase by the amounts per Tenant set out in the Plan. The respective increase shall apply, on a pro rata basis, from the date of increase of the number of Tenants. In case of a decrease, the increases in Recurring Fees allotted due to earlier increases in Tenants shall be deducted from the Recurring Fee from the beginning of the next Invoicing Period. Under no circumstance shall the Recurring Fee fall below the Recurring Fee set out in the Plan.

9.3  Transaction Fees

  (a)  The Recurring Fee includes the number of Transactions set out in the Plan per year. Should the Customer exceed this included number of Transactions in a year, then it shall pay additional Transaction Fees, which are calculated on a per-Transaction basis for all Transactions exceeding the number of Transactions included in the Recurring Fee in the respective year.

  (b)  The Transaction Fees are invoiced at the end of each Invoicing Period in arrears.
 

9.4  Expenses

  (a)  All Fees set out in this Agreement exclude out of pocket expenses, if any.

  (b)  Normally, fees for the usage of the payment service providers' interfaces are invoiced to the Customer directly by the payment service provider. Should any payment service provider invoice the Service Provider for its service provision, then such payment service provider fees shall be borne to the Customer.
 

9.5  Payment terms

The payment terms are set forth and governed by the Microsoft Services Agreement and the Plan.
 

9.6  Taxes

  (a)  Subject to Clause 9.7(b), in the event that Customer is obliged by local law to withhold withholding taxes due to cross-border billing, the Customer will pay the charge to the Service Provider less of the required withholding or deduction and shall remit the amount so deducted or withheld to the relevant tax authority.

  (b)  If any withholding or deduction is required pursuant to Clause 9.7(a), the Customer shall pay to Service Provider such additional amount as will ensure that Service Provider receives the same total amount that it would have received if no such withholding or deduction had been required.

10.  CONFIDENTIAL INFORMATION

  (a)  The Receiving Party shall keep the Disclosing Party's Confidential Information confidential, and will not, except as set forth in the following paragraph, disclose any of the Disclosing Party's Confidential Information in any manner whatsoever. The Receiving Party has no rights to the Disclosing Party's Confidential Information, except the limited right to use such Confidential Information in connection with the Services. The Receiving Party may only use the Disclosing Party's Confidential Information for purposes directly related to the Services

  (b)  Notwithstanding Clause 10(a), the Receiving Party may disclose the Disclosing Party's Confidential Information only:

    (i)    with the prior written consent of the Disclosing Party;

    (ii)   to its employees, contractors or subcontractors solely for the purpose of assisting the Receiving Party in connection with the Services, but, with respect to subcontractors, only if such subcontractor has been informed of the confidential nature of the Confidential Information and is obligated to maintain its confidentiality upon terms similar to those set out herein; or

    (iii)  as required by applicable law or legal process, in which event the Receiving Party shall give the Disclosing Party prompt notice thereof so that the Disclosing Party may seek a protective order and/or waive the provisions of this Clause 10; provided that in the absence of such order or waiver, if the Receiving Party, in the opinion of its counsel, a copy of which will be provided to the Disclosing Party upon request, would stand liable for contempt or suffer other censure or penalty for failure to disclose, the Receiving Party may disclose such Confidential Information as is legally required without liability hereunder.

  (c)  Both Parties agree to keep the terms of this Agreement confidential and will not disclose such terms except to its employees or agents that need to know.

  (d)  Upon termination of this Agreement or at any time upon request by the Disclosing Party for any reason, the Receiving Party will promptly destroy, cause to be destroyed or deliver to the Disclosing Party all documents (and all copies thereof) and electronic data, regardless of format or medium, furnished to Receiving Party by or on behalf of the Disclosing Party and which contain, in whole or in part, Confidential Information. The Receiving Party continues to be bound by its obligations of confidentiality and non-use hereunder notwithstanding the return or destruction of Confidential Information. Notwithstanding the foregoing, the Receiving Party may retain Confidential Information to the extent that it is required for compliance with applicable laws or its obligations pursuant to this Agreement.

  (e)  The obligations set out in this Clause 10 shall survive the termination or expiry of this Agreement.

11.  DATA PROTECTION

  (a)  Service Provider shall comply (and cause of its subcontractors to comply, if applicable) with all applicable privacy and data protection laws (collectively, "Applicable Privacy Laws"). The Service Provider acknowledges that the Customer is required to comply with the Applicable Privacy Laws, and Service Provider shall not, by its act, its omission or any other means, cause Customer to be in violation of Applicable Privacy Laws.

  (b)  To the extent that Service Provider obtains any personal information in connection with this Agreement, Service Provider shall make no use of such personal information except solely as required and only to the extent required, to perform the Services.

  (c)  If requested by the Customer, the Service Provider will enter into separate data processing and data export agreements, as required.

12.  INTELLECTUAL PROPERTY

  (a)  Any and all Intellectual Property Rights pertaining to the Software and to Services performed under this Agreement shall remain the sole property of the Service Provider and/or its third-party Service Providers.

  (b)  The Customer shall retain all Intellectual Property Rights in its Intellectual Property and all information, Customer Data, materials, or software furnished by the Customer to the Service Provider.

13.  REPRESENTATIVES AND WARRANTIES

  (a)  The Service Provider represents and warrants that the Software shall operate as described in the Software's Reference Manual and the Software's API shall operate as described in the API Documentation.

  (b)  While aspiring to offer non-stop availability of the Software, the Service Provider cannot represent or warrant that the Software will be available at any time. The Service Provider does however warrant that the software will be available in accordance with the Service Levels set out in this Agreement.

  (c)  This Agreement exhaustively sets out the applicable rights and remedies of the Customer in case of a breach of any of the above warranties.

  (d)  Any further warranty shall be excluded.

14.  THIRD PARTY RIGHTS INDEMNITY

  (a)  Service Provider shall indemnify and hold the Customer harmless from and against all claims related to, arising out of or in connection with any claim by a third party that Customer's use of the Software infringes any Intellectual Property Right. In the event that a final court decision has determined that an infringement of third-party rights took place, or if Customer is, due to an interim or final court decision, hindered from using the Software, Service Provider shall, at its option and expense:

    (i)    procure for Customer the right to continue using the infringing Software;

    (ii)   modify the Software to make it non-infringing; or

    (iii)  replace the Software with a non-infringing software having equivalent functionality.

  (b)  The indemnity in Clause 14(a) above shall not be applicable where any infringement is the result of:

    (i)     the combination of the Software with any third-party product not supplied by Service Provider;

    (ii)   any modification made to the Software by Customer or a third party not authorized by Service Provider; or

    (iii)  the use of the Software in a manner not contemplated by this Agreement.

  (c)  With regard to Clause 14(a) above, Customer shall:

    (i)     promptly notify Service Provider after receipt of summons or the commencement of any claim, action of other proceeding by a third party;

   (ii)     keep the Service Provider fully informed with respect thereto;

   (iii)     provide reasonable assistance to Service Provider;

   (iv)     abstain from making any representations, admissions or concessions to or agreements with the third-party claimant concerning the claim; and

   (v)     leave the conduct of negotiations and litigation in connection with such claim to the Service Provider, with Customer reserving the right to receive at its own cost advice from legal counsel of Customer's choosing.

  (d)  Clause 15 (Limitation of Liability) shall also apply to the indemnities set out in this Clause 14.

15.  LIMITATION OF LIABILITY

  (a)  Each Party shall be liable without limitation for any damages arising as a result of gross negligence or intent.

  (b)  No Party shall be liable for lost profits, indirect or consequential damages.

  (c)  Each Party's liability shall be limited to the total of the Fees paid under this Agreement in the 12 months prior to the event giving rise to the liability.

  (d)  Notwithstanding the foregoing, the Customer shall be fully liable without limitation for any knock-on-effects and respective damages that result from the Customer not adhering to its KYC and anti-money laundering obligations, including blockages by payment services providers due to such breaches of laws and regulations.

16.  PAYMENT DEFAULT

  (a)  Customer shall automatically be in default with any payment not received by Microsoft on behalf of the Service Provider within the agreed payment period.

  (b)  Service Provider shall notify Customer (itself or via Microsoft) with a default notice and provide ten (10) Business Days to cure the default. If Customer fails to cure the default, Service Provider shall notify Customer (itself or via Microsoft) with a second default notice and provide five (5) Business Days to cure the default.

  (c)  Should Customer be in default with any payment, then the Service Provider may, after having delivered to Customer two default notices in accordance with Clause 16(b) above and having waited for the second late payment curing period provided for by Clause 16(b) to end, block Customer's access to the Software. Such blocking of Customer's access shall not constitute a waiver of, or otherwise remove, Customer's obligations to pay the respective license fees.

  (d)  Customer shall owe to the Service Provider default interest of 5% p.a. on any payment with which it is in default.

17.  FORCE MAJEURE

A Party will be excused from delays in delivery and performance of contractual obligations under this Agreement caused by acts or omissions that are beyond the reasonable control and without the fault or negligence of said Party including delays caused by acts of God or of the public enemy, fires, floods, explosions, epidemics, quarantine restrictions, lawful acts of public authorities, freight embargoes, interruptions or disruptions of the public transportation, electric or communication infrastructure, civil insurrection or war (each a "Force Majeure Event"). The suspension of performance shall be of no greater scope and of no longer duration than is required by the relevant Force Majeure Event. Notwithstanding any other provisions of this section, should the Force Majeure Event last for more than 20 days, the non-affected Party may terminate this Agreement immediately upon written notice to the affected Party.

18.  TERM AND TERMINATION

18.1  Term

This Agreement shall be effective from the date on which it concluded using the Marketplace shall automatically terminate at the end of the Term.

18.2  Ordinary termination

Neither Party may terminate this Agreement during its Term.

18.3  Termination for cause

  (a)  If a Party (the "Non-Defaulting Party") reasonably believes that the other Party is in default of any of its material obligations under this Agreement, the Non-Defaulting Party may notify the other Party (the "Defaulting Party") in writing of the alleged defaults.

  (b)  The Defaulting Party shall, within thirty (30) days of the date of receipt of written notice, remedy or commence to the satisfaction of the Non-Defaulting Party, to remedy such defaults. If the alleged defaults are not cured in this thirty (30) day period, or if the Defaulting Party has not taken steps that are objectively adequate to commence curing the alleged default, the Non-Defaulting Party may terminate this Agreement without adhering to a notice period by delivery of a written termination notice to the Defaulting Party.

  (c)  A Party may terminate this Agreement immediately upon written notice to the other Party if the other Party ceases to conduct business in the normal course, becomes insolvent or bankrupt, makes an assignment for the benefit of creditors, proceedings seeking relief, reorganization or rearrangement under any laws relating to insolvency, are instituted by or against the other Party, a receiver, liquidator, or trustee is appointed in respect of any property or assets of the other Party; or an order is made for the liquidation, dissolution or winding up of the other Party.

18.4  Renewal

  (a)  As long as the Service Provider offers the Plan, the Customer may renew this Agreement at any time throughout its Term using the respective functionality of the Marketplace, it being understood that the Service Provider may cease offering the Plan at the end of the respective Term at its discretion. In case of renewal, the term of this Agreement shall be prolonged by the renewal Term, and this Agreement shall not terminate.

  (b)  If the Service Provider ceases to offer the Plan, unless the Service Provider ceases its operations altogether, then the Customer shall be granted the right switch to a different Plan, which however may require the Customer's acceptance of different pricing and/or amended terms and conditions.

18.5 Consequences of Termination

  (a)  Upon termination of this Agreement:

    (i)   Customer shall pay to Service Provider, within thirty (30) days of such termination, all amounts owed to Service Provider for Services performed and reasonable expenses incurred under this Agreement; and

    (ii)  each Party shall immediately return to the other Party all Confidential Information and Intellectual Property and all copies, portions and abstracts thereof, that are in its possession or under its control, all as provided for, and within the limits set out, in Clause 10(d).

  (b)  Upon Customer's request, Service Provider shall promptly and without delay return or make available to Customer all Customer Data in a market standard generic format (e.g. JSON, database dump), at no additional cost to Customer. This provision will apply notwithstanding the termination of this Agreement for any reason. This provision will survive the termination of this Agreement, and will be binding upon any successor to the Service Provider. However, in the event of termination of this Agreement, the Service Provider shall have no further obligations once it has provided the Customer Data to Customer, and following Customer's receipt of such Customer Data, the Service Provider shall permanently delete all Customer Data remaining in the Service Provider's possession and shall certify such deletion to Customer in writing.

 

19.  VARIOUS PROVISIONS

19.1  Publicity and Marketing

Service Provider may use the name, logo, trademarks or trade names of Customer in publicity releases, promotional material, advertising, marketing or business-generating efforts.

19.2  Severability

Each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. The invalidity or unenforceability of any provision of this Agreement shall in no way affect the validity or enforceability of any other provision hereof. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement remain in full force and effect if both the economic and legal substance of the transactions that are contemplated in this Agreement are not affected in any manner adverse to any Party.

19.3  Non-Waiver

The waiver of a breach of this Agreement or the failure of a Party to exercise any right under this Agreement shall in no event constitute a waiver as to any other breach, whether similar or dissimilar in nature, or prevent the exercise of any right under this Agreement. The failure of either Party to enforce at any time any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of a Party to enforce each and every such provision thereafter.

19.4  Assignment

The Parties shall not assign this Agreement or any of the rights or obligations hereunder to any third party without the prior written consent of the other Party.

19.5  Parts of the Agreement

The Schedules to these Terms and Conditions shall form an integral parts of these terms and conditions.

19.6  Entire Agreement and Hierarchy

This Agreement is the entire agreement of the Parties with respect to the provision of the Services and supersedes and cancels all prior oral or written representations, communications, or agreements between the Parties.

19.7  Amendments

No alteration, amendment, waiver, cancellation or any other change in any term or condition of this Agreement shall be valid or binding on either Party unless agreed in writing.

20.  GOVERNING LAW AND JURISDICTION

  (a)  This Agreement shall be subject to the ordinary laws of Switzerland excluding their conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention).

  (b)  The ordinary courts in Zurich, Switzerland, shall have sole jurisdiction with respect to any and all disputes out of or in connection with this Agreement.

 

Schedule 1: Service Levels

 

1.  SEVERITY LEVELS

In this Agreement, the following Severity Levels shall apply:

  (a)  Level 1: The Software is not Available.

  (b)  Level 2: Mission-critical functionality of the Software is not available or materially impaired, which has a material impact on Customer's business, or payments are failing (if attempted multiple times) and there is no workaround available.

  (c)  Level 3: Other Incidents.

2.  DEFINITION OF SERVICE LEVELS

The provision of the Software and the other Services of the Service Provider shall be subject to the following service levels (collectively, the "Service Levels"):

2.1 Service Hours and contact details

  (a)  The Software shall be deemed "Available" if it is up and running on the Service Provider's infrastructure and the router that connects the Service Provider's infrastructure to the Internet is reachable from outside the data center where the Software is hosted.

  (b)  The availability of the Software shall be measured by the Service Provider as a monthly average over each calendar month and shall be calculated based on the following formula:

where:

a: Availability in the relevant calendar month [%]

t:   Time in the relevant calendar month [cumulated, in minutes]

w: Actual downtime resulting from Maintenance Windows during the relevant calendar month [cumulated, in minutes]

dt: Downtime of the Software in the relevant calendar month [cumulated, in minutes]

  (c)  Downtimes due to Force Majeure Events or third party integrations such as payment service providers shall be excluded from the above calculation. For the purposes of the calculation of the availability, the Software shall be deemed available during such downtimes.

  (d)  Recurring Fees shall be reduced pro rata temporis in case of downtime equal to or greater than one day per occurrence, regardless of cause, it being understood however that in case of Service Credits being owed, the reduction as per this clause 2.2(d) shall only be owed to the extent it exceeds the Service Credits owed.

  (e)  The Service Provider warrants an Availability of the Software of 99.5% per calendar month.

2.3  Response Time

  (a)  The time elapsed between the receipt of a call by the Software's API and the Software's response to such call via the relevant API (the "Response Time"), which shall exclude the time spent waiting for payment service providers' services to react and deliver information, shall be measured by the Service Provider on its infrastructure and shall therefore exclude delays introduced by the Internet or Customer's network infrastructure.
 

The "Average Response Time" shall be calculated as follows:

where:

rt: Average Response Time [in seconds]

s: Sum of all Response Times logged in the relevant calendar month [cumulated, in seconds]

n: Number of responses logged in the relevant calendar month [cumulated]

  (b)  Average Response Time is only warranted with respect to the functionality used by the Customer for the execution of Transactions. The Software's reporting and analytics features' response times shall not be taken into account when calculating the Average Response Time.

  (c)  The Service Provider warrants an Average Response Time of 5 seconds.

2.4  Reaction Times

  (a)  The time elapsed between an Incident becoming known to the Service Provider and the Service Provider starting analysis on the cause of the defect or disruption (the "Reaction Time") shall be measured by the Service Provider.

  (b)  Reaction Times shall start once notice regarding an Incident has been received by the Service Provider. In case of Severity Level 2 and 3 notices delivered outside of Service Hours, the respective Reaction Time shall begin at the beginning of the following block of Service Hours.

  (c)  Reaction Times shall end once the Service Provider has started to analyze the cause for the defect or disruption.

  (d)  The Service Provider shall assign to each defect or disruption the respective severity level.

  (e)  Reaction Times shall only run during Service Hours, except for Level 1 incidents, in respect of which Reaction Times shall also run outside of Service Hours.

  (f)  It is vital Customer raises every issue via the Service Provider's support communication vectors set out in Clause 4.4(c). If an issue is not raised in this way, the Reaction Time do not apply.

  (g)  The Service Provider shall in case of defects in the Software or disruptions of Customer's access to the Software adhere to the following reaction times:

  (h)  The Service Provider shall classify any reported incident to the correct Severity Level.

3.  SERVICE LEVEL REPORTING

The Service Provider shall the track time in the relevant calendar month, the Maintenance Windows and the downtime of the Software and provide the resulting Availability to the Customer on a monthly basis on an automated platform.

4.  SERVICE CREDITS

4.1  Breach of Availability Service Level

  (a)  In case of a breach of the Service Level regarding the Availability of the Software in a given month as warranted by the Service Provider in clause 2.1, the Service Provider shall owe a Service Credit as follows:

  (b)  Should the availability of the Software be less than 98% on a three months' rolling average, then Service Provider shall promptly analyze the reasons for such low availability and take the necessary measures to correct the low availability. Should the availability not return to at least 99% (measured per month) within two months after the 98% threshold has been breached, then the Customer shall have the right to terminate this Agreement for cause without adhering to any notice period. In case of such termination for cause, any pre-paid fees shall be reimbursed pro rata temporis. The termination right shall expire if not exercised within 30 days after it has arisen.

4.2  Breach of Reaction Times Service Level

  (a)  In case of a breach of the Service Level regarding the Reaction Times warranted by the Service Provider in clause 2.4, then the Service Provider shall owe the following Service Credits. The applicable percentage (i) relates to the pro-rata Recurring Fee for a month and (ii) depends on the number of occurrences (i.e. the number of Severity Level 1 and 2 incidents) per month ("n"). The number ("n") is separately calculated for Severity Level 1 and 2 incidents

Example:

If there have been 2 Severity Level 1 incidents and 6 Severity Level 2 incidents in a given month, and the average Reaction Time was lower than the warranted Reaction Time for both of the categories, then for (i) the breach of the average Severity Level 1 Response Time service level, the Service Credit in the right-hand column (n <= 3) and for (ii) the average Severity Level 2 Response Time service level, the Service Credit in the left-hand column (n > 3) shall apply, respectively.

4.3  Credit Mechanism

The Service Credits shall be credited to Customer on the next following invoice for the Recurring Fees.

4.4  Cap

In any case, the Service Credits for any given month shall not exceed 15% of the pro rata Recurring Fee for such month.

4.5  Full and Final Remedy

The Service Credits provided for in this Schedule shall be full and final remedy for the relevant breach of the warranted Availability and Reaction Times.

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