Paynest Terms & Conditions
SPECIAL CONDITIONS
By the signatures of their duly authorized representatives on the Agreement between PAYNEST PORTUGAL LDA., a company incorporated in Portugal and having its offices at Av. Duque de Loulé, no. 12, 1050-093 Lisboa, with the unique registration number at the Commercial Registry Office of Lisbon (NIPC): 516961390, and share capital of € 104,00, hereafter referenced as "Software Provider” and the Customer, accept and understand these Terms and Conditions (hereafter the “T&Cs”).
Last Update: 28/11/2024
PART A
GENERAL CONDITIONS
All capitalized terms used in these General Conditions have the meaning given to them in Part B – Definitions unless they are also defined in capitalized and bold terms within the present General Conditions.
Preamble:
A. Whereas both Software Provider and Customer are duly incorporated and validly existing under the laws of the jurisdiction in which they carry out business.
B. Whereas both Software Provider and Customer have full power to enter into, and to exercise their rights and perform their obligations under this agreement, and this agreement, when executed, will constitute the valid, lawful and binding obligations of them, in accordance with its terms.
C. Whereas Software Provider developed a Platform that allows the Customer’s admin users to manage expenses and reimbursements, salary/bonus on-demand, financial coaching, instant cashback, and other employee finance related services through the Employer Dashboard (hereunder the “Employer Dashboard”). The service is then made available to Customer’s Eligible and Enrolled Employees through a Mobile Application (hereunder referred to as “Mobile Application”)
D. Whereas the Customer wishes to engage Software Provider for the provision of services, including the provision of the Software as a Service for its own internal business purposes.
E. Whereas Software Provider wishes to provide the Customer the agreed services including the Software as a Service under the terms of the Agreement and possesses all the necessary know-how, human, technical and financial resources, in order to deliver this engagement.
1. Scope of Service
1.1 Under the present Agreement, the Software Provider shall provide the Customer with the following Services (hereunder the “Services”):
1.1.1 Access to the Employer Dashboard on the Cloud Environment by the Customer and by its Enrolled Employees (through the Mobile Application), and provision of the Platform Services;
1.1.2 Provision of API (if any, as defined in the Special Conditions) for the purpose of giving Enrolled Employees the ability to make Requests;
1.1.3 Maintenance and Support Services of the Platform, namely:
a) Telephone or remote assistance regarding Customer's proper and authorized use of the Platform, during Software Provider's normal business hours (09:00h to 17:00h, except weekends and public holidays);
b) Reasonable efforts to solve Errors reported by Customer, provided that the Customer provides Software Provider with a reasonably detailed explanation and sufficient documentation including all relevant underlying data, to allow Software Provider to establish the existence of any Error and to assist Software Provider in its efforts to diagnose and correct the Error. If a reported Error results from the Customer or its Enrolled Employees act or omission, then Customer shall reimburse Software Provider for the costs incurred by Software Provider as a result of committing human and other resources to the investigation of the existence of the Error and all related services thereto;
1.1.4 Additional Financial Literacy Workshops only and if requested by the Customer and agreed by the Software Provider at the time of the request. The fees, procedure and dates for specific Financial Literacy Workshops will be agreed between the parties and invoiced separably.
1.2 Within the Platform, the Software Provider provides the following services to the Customer and its Enrolled Employees (hereafter the “Platform Services”):
a) Management and reimbursements of expenses between Enrolled Employees and Customer;
b) Immediate Access to the Earned Wages or Earned Bonuses as defined by the Customer (“salary on demand and bonus on demand”), where Enrolled Employees may execute a Request (for each Earned Wage Payment or Earned Bonus Payment a Transaction Fee may be owed to Software Provider, as defined in the annual contract);
c) Coach Services;
d) Instant cashback;
e) Employer Dashboard, enabling the Employer to onboard/offboard employees, set/change limits of employee's requests and enablement to review the history of requests along with level of corporate funds available;
f) Financial quizzes;
g) Internal communication channel between Enrolled Employees and financial coaches or support team provided by Software Provider;
h) Internal communication channel between Enrolled Employees and Customer;
i) Allow Enrolled Employees to view their historic transactions of Earned Wage and Earned Bonus Payments and remaining amount of Earned Wage that can be accessed during the Salary Period.
1.3 The Platform Services made available to Customer under the present Agreement, and consequently to its Enrolled Employees, are defined in the Special Conditions.
1.4 If specific instructions or implementations are required to access the Platform (such as API) or if a timeline is deemed necessary, such procedures will be defined in the contract between both parties. Notwithstanding, if Software Provider has completed all its tasks under the Specific Conditions and Timeline, but Customer has not completed their own (within the timeline of the Specific Conditions and Timeline), due to acts or omissions of Customer, Customer will be obliged to start paying the Services Fees to Software Provider, as foreseen in the present Agreement, regardless of the availability and use of the Platform by Customer and its employees.
1.5 For the purpose of providing the Maintenance and Support Services, the Customer must contact Software Provider, during Software Provider's normal business hours (09:00h to 17:00h, except weekends and public holidays), to the following contacts: support@paynest.co or +351 210 200 077
1.6 Software Provider will implement periodic interventions on the Platform, to ensure its maintenance and implement upgrades, which can be:
a) Urgent: in case there is an event that compromises the functioning of the Platform, Software Provider will immediately intervene, being Customer notified of such intervention immediately before it;
b) Planned: when necessary, Software Provider may proceed with a planned intervention on the Platform, notifying Customer of the date of such intervention with 2 (two) days prior notice.
1.7 The interventions mentioned in the previous paragraph will take the time necessary to proceed and achieve its purpose, and Customer may not refuse any of such interventions. However, in case of planned interventions, Customer can request Software Provider to change the date and/or schedule of such interventions, if the date and/or schedule indicated by Software Provider may disrupt the normal functioning of its business. A new date and/or schedule will be agreed between the Parties.
1.8 Customer recognizes that during such interventions, Customer and its Enrolled Employees may not have access to the Platform and to the Platform Services. Such impediment will not be reimbursed by Software Provider to Customer.
1.9 At any time following the Agreement Termination date, Software Provider shall cease providing all Maintenance and Support Services and if Customer subsequently wishes to reinstate them, Customer shall pay to Software Provider the Service Fees that would have been charged during the period between termination and reinstatement.
2. Procedure for use and registration on the Platform
2.1 To use and register its employees on the Platform, Customer will provide Software Provider the following data regarding each employee (hereafter the “Payroll Data”):
a) First and last name (mandatory);
b) IBAN of employee’s bank account (mandatory);
c) Net and Gross Salary (optional);
d) Employment start date (mandatory);
e) Tax number (mandatory);
f) Active or inactive state (mandatory);
g) Employee’s number (optional);
h) E-mail (optional/ mandatory if there is no telephone);
i) Telephone (optional/ mandatory if there is no e-mail);
j) Gross salary (optional);
k) Salary currency (optional);
l) Job title (optional);
m) Department/team (optional).
2.2 With such information, an Enrolled Employee Account will be registered and opened. To access the Platform and its Enrolled Employee Account, Enrolled Employees need to download the Mobile Application and enter their tax number and confirm their identity by entering the access code received on their e-mail or by sms.
2.3 Customer should immediately update any changes to the Payroll Data through the Employer Dashboard.
2.4 Customer will open a Customer’s Account with the Banking Partner or Certified Payment Institution indicated by Software Provider (hereafter “Paynest Wallet”), and grant Software Provider access to such bank account, to allow the provision of the Platform Services, namely the management and reimbursements of payroll, expenses and the access to Earned Wages and Earned Bonuses.
2.5 Besides the Payroll Data, Software Provider or the Banking Partner or Certified Payment Institution may request additional information regarding the Customer, necessary to the fulfilment of legal obligations regarding anti-money laundering and KYB requirements. Such information must be delivered without undue delay.
2.6 Non-provision of the KYB or the mandatory Payroll Data will preclude the provision of the Services by Software Provider.
2.7 Software Provider may request additional information regarding Customer or its employees, which shall be provided as soon as possible, except if Applicable Law forbids the disclosure of such information.
3. Software Provider’s obligations in relation to the Earned Wage or Earned Bonus
3.1 Without prejudice of other obligations under the Agreement and without prejudice of the Customers obligations foreseen in the present Agreement, the Software Provider undertakes to perform the following obligations in relation to the Earned Wage or Earned Bonus:
3.1.1 Process and accept every Request unless:
a) the Request when aggregated with the Enrolled Employee’s previous Requests, exceeds the Maximum Amount;
b) the relevant Request exceeds the Request Maximum Amount;
c) it is made between the Reconciliation Day and the last day of the Salary Period (inclusive);
d) the balance in the Paynest Wallet is insufficient to meet the whole Request;
e) the Software Provider reasonably believes a third-party might have access to the Enrolled Employee’s Account;
f) the probation period of the Enrolled Employee based on its Employment Agreement and Applicable Law has not yet expired;
g) the Enrolled Employee has, prior to the filing of the Request, filed a request for a leave of absence, and has been updated on the Employer Dashboard;
h) the Enrolled Employee has given notice to the Customer in relation to the termination of the Employment Agreement, and has been updated on the Employer Dashboard;
3.1.2 If a Request is accepted according to the previous number, instruct the Certified Payment Institution or Banking Partner to:
3.1.2.1 make a corresponding payment from the Paynest Wallet to the Bank Account;
3.1.2.2 transfer the Transaction Fees, from the Paynest Wallet to the Software Provider’s account.
4. Customer’s Obligations in relation to the operation of the Platform
4.1 Without prejudice to all other obligations under the Agreement, the Customer undertakes to perform the following obligations in relation to the operation of the Platform and the Mobile Application:
4.1.1 Each month, Customer must ensure that Customer’s Paynest Wallet has enough funds to cover the aggregate value of the Earned Wage and Earned Bonus;
4.1.2 As soon as reasonably practicable, give Software Provider notice if it has a good reason to believe that (a) the Employment Agreement will be terminated or suspended for any reason; or (b) an Enrolled Employee’s salary date and/or circumstances will change in a way that will or might reduce their Net Salary; (c) an Enrolled Employee has requested a leave of absence; or (d) it becomes aware of any other fact or matter that will or might affect Software Provider’s ability to process payments for an Enrolled Employee;
4.1.3 Take all reasonable steps to prevent unauthorized access to and/or use of the Platform, and tell Software Provider immediately if it becomes aware that unauthorized access and/or use has or might have occurred;
4.1.4 (if it gives notice under paragraph 4.1.5), tell the Enrolled Employees that it has done so; and
4.1.5 Ensure that the Enrolled Employees will use the Mobile Application in accordance with the Agreement.
5. Invoicing and Payments
5.1 Services Fees. Customer will pay to the Software Provider the Services Fees for the provision of the Services. The Software Provider will issue the respective invoice on the 5th of the following month and Customer shall be deducted of invoice amount directly from the Paynest Wallet.. Without prejudice of clause 5.7. below, Software Provider will issue the invoices for the Services Fees regarding all Enrolled Employees covered by the Agreement, with at least the Minimum Aggregate Enrolled Employees.
5.2 Transaction Fees. Software Provider shall deduct Transaction Fees directly from the withdrawn amount (Earned Wage/ Earned Bonus Payment) of the Enrolled Employee in accordance with Clause 3.1.2.
5.3 Expense Reimbursements. Customer shall reimburse Software Provider for traveling and out-of-pocket expenses incurred by its personnel solely to the extent traveling is necessary for the performance of the Services and if previously agreed in writing between Customer and Software Provider.
5.4 Taxes. All amounts payable by Customer to Software Provider under this Agreement exclude any taxes, withholding taxes, value added taxes, levies and duties that may be imposed upon Customer’s payments under Applicable Law, save only for taxes arising from Software Provider's net income. All sums payable under this Agreement shall be paid in full and without any deductions (for items such as income, corporation, or other taxes, charges and/or duties), except where the Customer is required by law to deduct withholding tax from sums payable to Software Provider, in which case Customer shall pay to Software Provider such additional amount (along with the payment to which the withholding or deduction relates) in order to ensure that Software Provider receives the same total amount that it would have received if no such withholding or deduction had been required.
5.5 Nonpayment. If Customer fails to pay Software Provider, as per the present clause and clause 13.2, Software Provider reserves the right to either (a) suspend the performance of any or all of its obligations and the provision of the Services under this Agreement, until all due and payable amounts are paid in full, or (b) terminate, immediately, this Agreement as per Section 13.
5.6 Other Terms. (a) All invoices issued by Software Provider shall be sent to the designated Customer's address or e-mail address. (b) All fees and other amounts paid by Customer under this Agreement are non-refundable. (c) All amounts referred to in this Agreement are in Euros.
6. Software Provider’s Warranties
6.1 Software Provider’s No Infringement. Software Provider warrants to Customer that (a) it has all rights necessary to grant to Customer access to the Platform, (b) the Platform, as and when Customer gets access to it on the Cloud Environment by Software Provider and if properly used for the purposes and in the manner specifically authorized by this Agreement, does not infringe any patent, copyright, trade secret or other proprietary right of any Person.
6.2 The warranties set out in this Section are the entire and exclusive warranties made by Software Provider with respect to the Software and any related services or matters pertaining to this Agreement. To the maximum extent permitted by law, all other warranties and representations (including any warranty of merchantability, satisfactory quality and fitness for any particular purpose), whether express or implied, are excluded.
7. Software Provider’s Indemnity
7.1 Software Provider shall undertake the legal representation of the Customer in relation to, and indemnify Customer against all liabilities, costs, expenses, damages and losses suffered or incurred by the Customer arising out of legal proceedings that are initiated by a third-party in relation to the actual or alleged infringement of a third party's intellectual property rights in violation of the warranties in Section 6.1 (hereinafter, “Third-Party IPR Claim against Customer”). In such a case, Software Provider retains the absolute discretion to determine the strategy which Customer shall adopt in any relevant judicial proceedings, including the right to dispose of a Third-Party IPR Claim against Customer by entering into binding settlement agreements.
7.2 If any Third-Party IPR Claim against Customer is initiated, or is likely to be initiated, then Software Provider shall have the right to proceed to the following remedies, in the following order of priority, which shall be superseded only if the action described in 6.2.1, and then the action described in 6.2.2 are objectively impracticable or the infringement cannot be remedied as a result thereof:
7.2.1 modify or replace part(s) of the Platform in order to remedy and cease any infringements upon the rights of third-parties, provided that the Platform functionality does not change in any material respect;
7.2.2 acquire on the Customer’s behalf the right to continue using the infringing part of the Platform;
7.2.3 remove all, or part thereof, of the Platform that infringes upon third-party rights, and refund Customer with the portion of the Services Fees paid following the filing of the Third-Party IPR Claim against Customer.
8. Customer's Prerequisites and Obligations
8.1 Data Security. With respect to the use of the Platform, Customer shall maintain (a) adequate technical and procedural access controls and system security requirements, in order to protect data privacy, confidentiality, integrity, authorization, authentication, non-repudiation, virus detection and eradication, (b) agreements with all Enrolled Employee who undertake to protect the confidentiality and proprietary items of Software Provider and disclaim any liability or responsibility of Software Provider with respect to such Enrolled Employee, except if and as provided to the contrary onto the Mobile Application Terms of Use and unless the Mobile Application Terms of Use exempt the Customer from doing so, and (c) back-up copies of data that is processed, in order to be restored in the event of any loss or damage.
8.2 Customer’s Notices. Customer shall give a prior written notice of fifteen (15) calendar days to Software Provider whenever Customer intends to change, modify, amend or expand the Platform Services.
8.3 Awareness Plan. Software Provider and Customer shall align on communication and awareness plan for Customer’s employees.
8.4 Compliance. The Parties shall comply with all obligations set out in the Data Processing Agreement and Applicable Law.
8.5 Promotion. The Customer shall promote in good faith the Mobile Application and the Platform to its Employees and service providers through use of the Awareness Materials.
9. Customer’s Representations and Warranties
9.1 Customer’s No Infringement. Customer warrants to Software Provider that Customer has the full legal right and authorizations to grant to Software Provider the right to use of the Customer Material, that it is lawfully entitled to do so, that it owns such Customer Material that the Customer Material is accurate, complete and up-to-date, and that on the Effective Date, such right does not infringe any patent, copyright, trade secret or other proprietary intellectual right of any Person. Customer hereby grants to Software Provider a non-exclusive right to use the Customer Material for the term of this Agreement for the purposes of fulfilling Software Provider's obligations under this Agreement.
9.2 Customer’s Use Restrictions on Software Provider 's Proprietary Items. Customer hereby acknowledges and agrees that Software Provider owns solely and exclusively, or is duly licensed to use, any and all right, title and interest in and to all Proprietary Items, which are provided on as-is basis on the Cloud Environment to Customer solely in connection with this Agreement and solely for its own internal business purposes and solely for the provision of the Services and on a strictly confidential and limited basis. The Customer explicitly acknowledges that this Agreement is not an agreement of sale of Proprietary Items (including Copies of them in Customer’s possession, and such items that were created by Software Provider specifically for or on behalf of Customer). Customer warrants to Software Provider that it shall not do, attempt to do, or permit any other Person to do, any of the following:
9.2.1 directly or indirectly, communicate, publish, display, loan, give or otherwise disclose any Proprietary Item(s) to any Person, or permit any Person to have access to, or possess of any Proprietary Item(s) unless explicitly authorized under the Awareness Plan;
9.2.2 use any Proprietary Item for any purpose, at any location or in any manner not specifically authorized by this Agreement;
9.2.3 make or retain any Copy of any Proprietary Item except as specifically authorized by this Agreement;
9.2.4 save as specifically permitted by Applicable Law, create or recreate in any manner (including the methods of re-engineering, reverse engineering, decompiling or disassembling) the Platform or the source code for the Platform;
9.2.5 modify, adapt, translate or create derivative works based upon the Platform, or combine or merge any part of the Platform with or into any other software or documentation save to the extent and in the circumstances permitted by Applicable Law;
9.2.6 refer to, obtain guidance from, or otherwise use any Proprietary Item as part of any effort to develop a program having any functional attributes, visual expressions or other features similar to those of the Platform or any Proprietary Item or to compete with Software Provider;
9.2.7 remove, erase or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in any Proprietary Item, or fail to preserve all copyright and other proprietary notices in any Copy of any Proprietary Item made by Customer;
9.2.8 sell, market, license, lend, sublicense, distribute any right to use any Proprietary Item, whether on Customer's behalf or otherwise;
9.2.9 otherwise grant to any Person, excluding the Enrolled Employees, any right to use any Proprietary Item, whether on Customer's behalf or otherwise.
10. Customer’s Indemnity
Customer shall indemnify Software Provider against all liabilities, costs, expenses, damages and losses suffered or incurred by Software Provider arising out of legal proceedings that are initiated by a third-party in relation to the actual or alleged infringement of a third party's intellectual property rights in violation of the warranties in Section 9.1 (hereinafter, “Third-Party IPR Claim against Software Provider”). In such a case, Customer retains the absolute discretion to determine the strategy which Software Provider shall adopt in any relevant judicial proceedings, including the right to dispose of a Third-Party IPR Claim against Software Provider by entering into binding settlement agreements.
11. Other Representations, Warranties and Limitations
11.1 Confidentiality and Disclosure Restrictions. All Confidential Information of the Disclosing Party in the possession of the Receiving Party shall be held in the strictest of confidence and the Receiving Party shall take all steps reasonably necessary to preserve the confidentiality thereof. Use or disclosure of Confidential Information shall not be permitted for any purpose except as necessary to implement or perform this Agreement, or except as required to fulfill that Party's obligations under Applicable Law, provided always that, where permitted by Applicable Laws, the Party making such disclosure gives notice to the other Party prior to such disclosure, such that the other Party is given a reasonable opportunity to obtain a protective order. The Receiving Party shall:
11.1.1 limit its use of, access to and disclosure of the Disclosing Party's Confidential Information to only those of its employees, officers, representatives or professional advisers where such disclosure, use or access is required for the performance of its obligations, or the preservation or exercise of its rights, under this Agreement;
11.1.2 advise all such employees, officers, representatives and professional advisers, before they receive access to or possession of any of the Disclosing Party's Confidential Information, of the confidential nature of the Confidential Information and require them to abide by the terms of this Agreement; and
11.1.3 be liable for any breach of this Agreement by any of its employees or any other Person who obtains access to or possession of any of the Disclosing Party's Confidential Information from or through the Receiving Party.
11.1.4 Each Party shall, immediately upon becoming aware of the same, give notice to the other of any unauthorized disclosure, misuse, theft or other loss of Confidential Information of the other Party, whether inadvertent or otherwise.
11.2 Software Provider may disclose Payroll Data and KYC information to the Banking Partner or Certified Payment Institution for the purpose of providing the Services.
11.3 Enforcement. Each Party acknowledges that the restrictions in this Agreement are reasonable and necessary to protect the other Party's legitimate business interests and that any breach of any of the provisions of Section 5.1, 8.1, 8.2, shall result in serious injury to the other Party for which money damages could not adequately compensate.
11.4 Non-Solicitation. Neither Party shall, or will attempt to, directly or indirectly (including through its Affiliates), solicit or entice away from the employment of the other Party any Person employed or engaged by such other Party in the provision and/or receipt of the Services, at any time from the Effective Dates of this Agreement, until 12 months after the termination of this Agreement other than by means of a publicized campaign, and not specifically targeted at any of the staff of the other Party. If either Party commits any breach of this clause, the breaching Party shall, on demand, pay to the claiming Party a sum equal to one year's remuneration cost, plus the recruitment costs incurred by the claiming Party in replacing such person. Both Parties agree that the foregoing sets out a fair and reasonable compensation for the damage suffered by other Party by the violation of this clause.
11.5 Compliance. Each Party warrants to the other Party that it is in compliance with all rules, laws and regulations as are applicable to it in the jurisdictions in which it is incorporated (or, if different have their principal place of business).
11.6 Data Privacy.
11.6.1. The Parties undertake to comply, at all times, with the data protection legislation, namely the obligations arising from Regulation (EU) 2016/679 of 27 April 2016 (“GDPR”) and Law No. 58/2019, of August 8.
11.6.2. The Parties acknowledge that the signing and execution of this Agreement implies the processing, by both Parties, of the personal data of the signatories, representatives and employees of the counterparty, responsible for monitoring the execution of this Agreement.
11.6.3. The purpose of processing personal data referred to in the previous number is: (i) managing the negotiation process and signing this Agreement; (ii) management of the normal execution of the Agreement, including operational, commercial, financial and legal management; (iii) compliance with legal obligations to which the Parties are subject; and (iv) the exercise or defence of rights or legitimate interests of each Party before any authorities in the context of judicial or administrative proceedings.
11.6.4. Each of the Parties acts as responsible for the processing of personal data carried out, being responsible for guaranteeing the legitimacy of that processing, particularly regarding the information to be provided to data subjects, in accordance with articles 13 and 14 of the GDPR. Each Party will be responsible for providing data subjects with a means of contact for the purpose of exercising their respective rights within the scope of the processing of personal data that each Party carries out.
11.6.5. Under the present Agreement, and for the provision of the Services to the Customer, the Software Provider will act as Processor and Customer as Controller. For this purpose, a Data Processing Agreement,, is signed between the Parties on the date of signature of this Agreement. Each Party shall comply with the responsibilities and obligations imposed upon them by the Data Processing Agreement.
12. Limitation of Liability
Software Provider’s limitations
12.1 With the exclusion of 12.8, the maximum aggregate liability of Software Provider under or in connection with a breach by Software Provider of its obligations under this Agreement, howsoever arising (including by way of contract and/or under an indemnity or in tort, including negligence or any other theory of law), shall under no circumstances exceed the amount of the current Services Fee calculated on an annual basis up to the month of occurrence of a respective breach, and as actually paid by the Customer to Software Provider prior to the occurrence of the respective breach.
12.2 Software Provider shall bear no liability under the indemnity in Section 7.1 unless Customer (a) gives written notice to Software Provider within fifteen (15) calendar days of the existence of any Third-Party IPR Claim, (b) allows Software Provider to have sole conduct of the defense, settlement negotiations and settlement of the Third-Party IPR Claim, (c) provides Software Provider with such reasonable assistance as is reasonably required by Software Provider regarding the Third-Party IPR Claim, and (d) ensures that it does not make any admissions or settlements concerning the Third-Party IPR Claim without the prior written consent of Software Provider.
12.3 Without prejudice to the generality of Section 6, Software Provider does not warrant that (a) the Platform will meet all of Customer’s requirements, or is of a particular quality or fit for any particular purpose, other than those described in this Agreement; (b) the operation or use of the Platform will be uninterrupted or error-free or that any errors will be corrected, other than as set out in this Agreement; and (c) the use of the Platform with any other software, or with inappropriate hardware, will not cause in disturbance to the Software or such other software. Any written, printed or other materials which Software Provider provides to Customer are provided on an "as is" basis, without warranty of any kind.
12.4 No action or claim of any type relating to this Agreement may be brought or made by Customer more than one (1) year from the date of the actual occurrence of the respective breach.
12.5 Software Provider shall not be liable for any damage, loss, costs, claims or expenses of the Customer to the extent they arise from:
12.5.1 a change to the Customer's business requirements in relation to the Services provided;
12.5.2 changes to Applicable Law following the Effective Date, which were not implemented by the Parties;
12.5.3 any unauthorized or improper use of the Platform by the Customer or its Enrolled Employees; or
12.5.4 Customer’s breach of this Agreement.
General limitations
12.6 Non-excludable liabilities. Nothing in this Agreement shall limit or exclude either Party's liability for (a) fraud or fraudulent misrepresentation, (b) damages caused to the life, moral or physical integrity or health of people;, (c) non-contractual damages caused to the counterparty or third parties; (d) liability for non-compliance, delay or defective performance, in case of malice or gross negligence; and (e) any other matter that may not otherwise be limited or excluded by Applicable Law.
12.7 Consequential Damages and Trading Losses exclusion. With the exception of 9.2, neither Party will be liable to the other, or any other person (whether in contract, tort (including negligence), for any breach of statutory duty, misrepresentation or otherwise) for any (a) loss of goodwill or reputation, (b) loss of opportunity, (c) loss of trade or business, (d) loss of revenue or profits, (e) loss of data, or any loss of use of, or access to, data, (f) any incidental, indirect, consequential, special, or punitive damages of any kind or nature whether or not foreseeable, even if a Party has been advised or was aware of the possibility of such loss or damages.
13. Term and Termination
13.1 The present Agreement shall be valid for a period defined in the Special Conditions, commencing on the Effective Date (the "Initial Term") . Thereafter, the Agreement will be automatically renewed for successive periods of 1 (one) year, unless otherwise communicated by any Party, by registered letter with acknowledgment of receipt sent to the address agreed in clause 14.1., with the minimum notice of 30 (thirty) days in relation to the end of the Initial Term or its successive and possible renewals (“Renewal Terms”).
13.2 Either Party may terminate this Agreement in case of breach of the other party obligations, if such breach is not remedied within thirty (30) calendar days after receiving notification of the breach.
13.3 Termination by Software Provider. Without prejudice to any other termination rights set out in this Agreement or pursuant the Applicable Law, Software Provider may immediately terminate this Agreement by registered letter with acknowledgment of receipt sent to the address agreed in clause 14.1., upon the occurrence of any of the following events:
13.3.1 Customer fails to promptly pay any sums due and payable under this Agreement within thirty (30) calendar days after Software Provider notifies Customer in writing of such failure to pay; or
13.3.2 Customer suffers an Insolvency Event, in compliance with the Applicable Law.
13.4 Effect of Termination.
13.4.1 Upon termination or expiry of this Agreement, Software Provider (a) shall discontinue providing all Services, (b) will immediately be entitled to payment of all pending obligations of Customer with respect to the period up to the date of termination.
13.4.2 Upon termination or expiry of this Agreement, Customer shall: (a) discontinue all use of all the Platform, (b) promptly return to Software Provider all copies of any affected Proprietary Items in the Customer's possession at that time, (c) give written notice to Software Provider certifying that all copies of the Platform or any other Proprietary Item have been permanently deleted from its computers, and (d) remain liable for all pending obligations due to Software Provider with respect to the period up to the date of termination and of the amount corresponding to the Termination Compensation.
13.4.3 In addition to the rights arising under the present clause, the provisions of Sections 11 and 12 shall survive any termination of this Agreement.
13.4.4 In case of termination of the present Agreement due to any Customer’s action or inaction (except termination due to breach of the Agreement by Software Provider), Customer will pay to Software Provider the Termination Compensation within 10 (ten) days after the termination of the Agreement.
14. Other provisions
14.1 Notices
14.1.1 Notice and Remedy of Breaches. Each Party shall promptly give written notice to the other of any actual or suspected breach of any of the provisions of this Agreement, whether or not intentional and the breaching Party shall at its expense take all necessary actions to prevent or remedy the breach.
14.1.2 All notifications, communications or authorizations to be made under this Agreement must be in writing, and sent to the respective counterparty, when required by law or by this Agreement, by registered letter with acknowledgment of receipt, to be sent to the address listed on the Special Conditions, which constitutes, for procedural purposes, a domicile convention.
14.1.3 Any change to the address identified above must be communicated immediately, in accordance with the terms referred to in the previous paragraph, under penalty of it being ineffective.
14.1.4 Except in the situations provided for in number 1 above, notifications, communications or authorizations to be made under this Agreement may be sent by email to the contacts indicated in the Special Conditions.
14.2 Parties in Interest. This Agreement shall bind, benefit and be enforceable by and against Software Provider and Customer and to the extent permitted hereby, their respective successors and assigns.
14.3 Assignment. The Software Provider may assign this Agreement or any of its rights hereunder, delegate any of its obligations hereunder, without the other Party’s prior written consent provided that the assignment is being done to an Affiliate of the Software Provider.
14.4 Customer’s Assignment limitation. Customer shall not assign any of its rights, obligations, warranties or any other legal right arising out of this Agreement, to either third-parties, or Affiliates, without Software Provider’s prior written consent. Customer must notify its intention to assign any of the foregoing and the purpose of such assignment, as well as the new number of Enrolled Employees and processed volumes, by submitting to Software Provider a prior written notice at least thirty (30) calendar days, also certifying that (a) the use of the Platform will not change, (b) the successor or its Affiliates is not a competitor of Software Provider, (c) the successor or its Affiliates will not breach any of the terms of this Agreement, and (e) Customer guarantees that the assignee will fulfil the obligations and warranties the Customer has undertaken. Any purported assignment by Customer in breach of this Section will be considered as null and void.
14.5 Relationship. The relationship between the Parties created by this Agreement is that of independent contractors and not partners, joint ventures or agents.
14.6 Third-Party Rights. A person who is not a Party to this Agreement shall not acquire any rights under it or be entitled to benefit from any of its terms. The rights of the Parties to vary or terminate this Agreement are not subject to the consent of any other person.
14.7 Entire Agreement. This Agreement constitutes the entire agreement and understanding of the Parties with respect to the subject matter of this Agreement and supersedes any prior agreements, representations, understandings or arrangements between the Parties (oral or written) in relation to such subject matter. Each Party acknowledges that: (a) upon entering into this Agreement, it does not rely, and has not relied, upon any representation (whether negligent or innocent), statement or warranty made or agreed to by any person (whether a Party to this Agreement or not) except those expressly set out in this Agreement; and (b) the only remedy available in respect of any misrepresentation or untrue statement made to it shall be a claim for breach of contract under this Agreement. Nothing in this Section shall limit or exclude any liability for fraud.
14.8 Modification and Waiver. No modification, or waiver of any breach of this Agreement, shall be effective unless performed in writing and signed by an authorized representative of the Party against whom enforcement is sought. Unless otherwise provided herein, under no circumstances shall any omission or delay of the Parties to exercise their legal or contractual rights arising out of this Agreement result in the weakening of such rights, be construed as a waiver or abandonment of such rights.
14.9 Publicity. Each Party shall be permitted to publicize the existence of this Agreement, provided that the other Party shall be provided with an opportunity to review and provide comment upon the contents of any such publicity materials before such materials become public. Without prejudice to the foregoing indent, the Software Provider may use the Customer’s name, brand and/or logo on its website solely for purposes of mentioning the existence of the business relationship governed under this Agreement.
14.10 Newsletters. Each Party accepts to receive from the other, newsletters and other information.
14.11 Awareness Plan. The Parties must agree on the Awareness Plan no later than two weeks from the Effective Date.
14.12 Severability. Each of the provisions contained in this Agreement shall be construed as independent of every other such provision, so that if any provision of this Agreement shall be determined to be illegal, invalid or unenforceable, then such determination shall not affect any other provisions of this Agreement.
14.13 Force Majeure. Neither Party shall be considered in breach of this Agreement (other than its payment obligations), as a result of a cause beyond its control, including (a) any act of God, (b) devastating fire, flood, earthquake, storm, (c) a public enemy, (d) military actions, (e) significantly adverse civil or regulatory authority actions, or change in any law or regulation, (f) permanent disruption of communications, power, other utility, unavailability of supplies or labor problems, or (g) any other cause, which could not have been prevented or mitigated by the non-performing Party with reasonable care.
14.14 Neither Party shall have any other rights or remedies against the other, except as specifically provided in this Agreement.
14.15 Applicable Law and Dispute Resolution. This Agreement shall be governed by the laws of Portugal. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and resolved by the courts of Lisbon, Portugal, since it is the place of the registered address of the Software Provider.
14.16 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. This Agreement may be executed by means of qualified electronic signature (QES) applications; in which case each counterpart shall be deemed an original.
