Vispārīgi noteikumi

These “General Terms” are an integral part of the provision of services by the Service Provider to the Client in accordance with the main Agreement.

1. Definitions and Interpretation

• The following capitalised terms and acronyms shall have the meanings assigned to them below, unless the context requires otherwise:
• • • Account means the central means of access to the Services;
    • Affiliate means an entity that is (a) directly or indirectly owning or controlling a Party; (b) under the same direct or indirect ownership or control as a Party; or (c) directly or indirectly controlled by a Party; for so long as such ownership or control lasts. Ownership or control shall exist through direct or indirect ownership of fifty per cent (50%) or more of the nominal value of the issued equity share capital or of fifty per cent (50%) or more of the shares entitling the holders to vote for the election of the members of the board of directors or persons performing similar functions;
    • Agreement means this software as a services agreement including all its Annexes and other attached documents which may be amended and/or modified from time to time;
    • Annex means an annex which is incorporated into this Agreement;
    • Applicable Laws means all local, state, national, and international laws, regulations, and treaties that apply to the Parties, the Agreement, and the subject matter of the Agreement. This includes, without limitation, all forms of statutes, regulations, judgments, injunctions, orders, and decrees, as well as any governmental authorizations, licenses, and permits;
    • Business Day means any day which is not Saturday, Sunday or a public holiday in Estonia;
    • Client Data means all data, information, and materials provided, disclosed, or submitted by or on behalf of the Client to the Service Provider in connection with this Agreement. This includes, but is not limited to, personal data, confidential business information, customer details, technical data, and any other information provided by the Client for the purpose of enabling the Service Provider to perform its obligations under this Agreement or as otherwise agreed upon by the Parties;
    • Confidential Information means the Agreement, the data and documentation related to the businesses and clients of the Party and its Affiliates, including know-how and all other specifications, trade secrets, technical information, software, models, designs, business information, unpatented technology, research information, statistical information and analyses, information on methods, processes and facilities related either to any software or business activities of any of the Parties. For the avoidance of doubt, client information shall be deemed to be confidential. However, information that was in the possession of the disclosing Party without an obligation of confidentiality, before its disclosure and information that is generally available to the public shall not be deemed confidential;
    • Contract Year means a period of 12 (twelve) months commencing on the Effective Date and any anniversary thereof;
    • Control means the direct or indirect ownership of more than 50% of the share capital of a company or more than 50% of the voting power;
    • Deliverables means all results of work performed and specifically tailored by the Service Provider to the Client under this Agreement or a SoW in whatever form;
    • Documentation means manuals, user guides, technical documentation, and any other relevant material related to the Services and/or Deliverables provided by the Service Provider to the Client under the Agreement and/or the SoWs;
    • Effective Date means the date of concluding the Agreement;
    • Fees means the service or other fees payable by the Client in consideration for the Services, further specified in Section 6 and the Special Terms;
    • Force Majeure Event means unforeseeable circumstances which the Party, who has violated the obligation, is unable to control and the prevention of which by the same cannot be expected proceeding from the principle of reasonableness. Force majeure events include but are not limited to severe acts of nature, war, riot, acts of terrorism, the activities of public authorities (e.g. the state, local government) and other circumstances independent of the parties (e.g. strike, the general failure of the computer system, failure of communications lines or power failure, denial-of-service attack);
    • GDPR means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) as well as other applicable data protection laws;
    • Intellectual Property rights or IPR means all intellectual and industrial property rights and similar rights of whatever nature anywhere in the world whether currently existing or coming into existence in the future, whether recorded or registered in any manner or otherwise, including (but not limited to) any copyrights and related rights, industrial design rights and other design rights, registered designs, patents, utility models, inventions (whether or not patentable), trademarks, service marks, database and software rights, rights to layout-designs of integrated circuits, trade secrets, know-how, confidential information, business names, trade names, brand names, domain names and all other legal rights anywhere in the world protecting such property including, where applicable, all renewals, extensions and applications for registration, the right to apply for registration, and the right to sue for damages for past and then-current infringement in respect of any of the same;
    • Open Source Software means software that is, contains or is derived from software distributed as freeware, shareware or open source software, or under similar licensing or distribution models that: (a) require the licensing, disclosure or distribution of source code to any other person; (b) prohibit or limit the receipt of consideration in connection with licensing or distributing any software; (c) allow any person to decompile, disassemble or reverse engineer any software; (d) require the licensing or distribution of any software to any other person for the purpose of making derivative works; (e) are identified by the open source initiative as open source licensing or distribution models at www.opensource.org; or (f) is identified by the Free Software Foundation as free software licenses at www.gnu.org;
    • Personal Data means any information relating to an identified or identifiable natural person defined in the GDPR;
    • Renewal Period means the renewal period provided in Section 2.
    • Service Levels means the target performance levels applicable to the Services and any other service levels provided in the Service Level Agreement;
    • Services means services provided by the Service Provider under this Agreement, including the intelligent transport management solution, as well as any other services and SoWs agreed upon by the Parties from time to time;
    • SoW means a statement of work defining the services performed or to be performed and/or any Deliverables. All such statements of works shall be deemed as separate agreements between the Parties;
    • Term means the term of the Agreement provided in Section 1;
    • User means any individual who is authorized by the Client to access and use the Services under this Agreement. This includes, but is not limited to, the Client’s employees, representatives, consultants, contractors, agents, or other entities authorized by the Client;
  • In this agreement, the following rules of interpretation apply:
    • references to words “include” or “including” (or any similar term) are not to be construed as implying any limitation and general words introduced by the word “other” (or any similar term) shall not be given a restrictive meaning because they are preceded or followed by words indicating a particular class of acts, matters or things;
    • references to “hereby”, “herein”, “hereof”, “hereunder” or any similar expression shall refer to the Agreement as a whole and not to any particular provision thereof;
    • except where the context specifically requires otherwise, words importing one gender shall be treated as importing any gender, words importing the singular shall be treated as importing the plural and vice versa, and words importing the whole shall be treated as including a reference to any part thereof;
    • references to “form reproducible in writing” include electronic mail (including pdf);
    • references to “persons” or “individuals” include private individuals, legal entities, unincorporated associations and partnerships and any other organisations, whether or not they have separate legal personality;
    • the section and paragraph headings used in this Agreement are inserted for ease of reference only and shall not in any way affect or define the construction, meaning, or scope of any of the provisions thereof;
    • any reference to a section, paragraph, or an Annex means a reference to a section, paragraph, or an Annex of this Agreement;
    • the Annexes form an integral part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes its Annexes.

2. Order of Precedence
   • The following Annexes form an integral part of this Agreement:
     • Service Level Agreement;
     • Data Processing Agreement;
     • Technical and Organisational Measures;
     • Platform Security.
   • In the event of any discrepancy between any of the provisions of an Annex and of the General Terms, the provisions of the General Terms shall prevail, unless explicitly stated otherwise in the applicable Annex. This does not apply to the Data Processing Agreement and its provisions, which shall prevail in case of conflict with the provisions of any part of this Agreement.
3. Access To and the Use of the Services
   • Subject to all limitations and restrictions contained herein, the Service Provider grants the Client a non-exclusive and non-transferable subscription right to access and use the Services. The Client can:
     • use the Services via the HTTPS protocol and API endpoints;
     • make the Services available to Users via the mobile application.
   • To access and use the Services, the Client shall have the right to an Account with administrative control. The Service Provider shall create such an Account for the Client and disclose the credentials to the Client. The Client shall retain ultimate administrative control over their Account for the Term.
   • The Client shall have the right to create, designate, and terminate User accounts. Users shall be permitted to access the Services subject to User rights assigned to them by the Client. The Client agrees and acknowledges that they approve all creation, designation, and termination of User accounts.
   • The Client is responsible for keeping the Account secure while using the Services. The Client is responsible for all Client Data uploaded and all activity that occurs under the Account. The Service Provider cannot and will not be liable for any loss or damage from the Client’s failure to comply with this obligation. The Client will promptly notify the Service Provider if the Client becomes aware of any unauthorised use of, or access to, the Services through the Account, including any unauthorised use of the password or the Account.
   • The Client is responsible for obtaining any communication means necessary to use the Services. The Client’s mobile network’s data and messaging rates and fees may apply if the Client accesses or uses the Services from their device. The Client is responsible for acquiring and updating compatible hardware or software necessary to access and use the Services and applications and any updates thereto. The Service Provider does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of internet and electronic communications.
   • The Client shall use the Services only in accordance with this Agreement and Applicable Laws. Unless expressly otherwise agreed upon between the Parties, the Client shall not:
     • modify, copy, enhance, improve, alter, reverse engineer, decompile, disassemble, deconstruct, translate, decrypt, reverse compile or convert into human readable form the Services or any part thereof, except to the extent permitted by Applicable Laws;
     • work around any technical limitations of the Services or restrictions in the product documentation of the Services;
     • modify, enhance, improve, alter or (other than to Users) distribute the product documentation of the Services;
     • remove, deface, cover or otherwise obscure any proprietary rights notice or identification from the Services or documentation of the Services (including without limitation any copyright notice);
     • authorize or permit any third party to engage in the aforementioned activities.
   • The Client agrees to refrain from conducting any activity harmful to the Service Provider and/or the Services. The Client shall not:
     • use the Services in a manner that interferes with, corrupts, damages, or destroys the Services, including any software or the servers that administer the Services; or the data and information in the Services;
     • use the Services in any way that is or may be unlawful, illegal, fraudulent, harmful or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity;
     • transmit malware to the Services or use the Services maliciously;
     • significantly increase the workload of the Services above what is reasonably expected from the Client;
     • use the Services in any other way that is reasonably likely to result in damage to the Service Provider or another client of the Services.

4. Intellectual Property Rights
   • All IPR to the Services, including its components, any upgrades, additions, corrections, improvements, and any other proprietary software made available by the Service Provider to the Client will at all times remain the sole property of the Service Provider or its licensors. This Agreement does not transfer or convey any IPR from the Service Provider to the Client, nor does it grant the Client any rights in or to the Service Provider’s IPR, except for the limited rights expressly granted under this Agreement.
   • Subject to full and timely payment of all Fees, the Service Provider grants the Client a non-exclusive, non-transferable, non-sublicensable, limited right and license to access and use the Services for the duration of the Term. This license is provided solely for the Client’s internal business purposes, and the Client agrees to use the Services in accordance with the terms and conditions set forth in this Agreement.
   • The Parties acknowledge and agree that the Client and/or its Affiliates shall retain sole ownership of all IPR in and to the Client Data. This Agreement does not constitute a transfer of any IPR over the Client Data from the Client to the Service Provider. The Service Provider is authorized to use the Client Data exclusively for the purpose of rendering the Services as stipulated in this Agreement. Any such use shall be in compliance with the terms of this Agreement, the GDPR, and the Service Provider’s privacy policy. The Service Provider acknowledges that it has no right to disclose, replicate, or use the Client Data for any purpose other than as expressly permitted in this Agreement.
5. Availability
   • In accordance with the terms of this Agreement, the Service Provider commits to maintaining the availability of the Services as detailed in the Service Level Agreement annexed hereto.
   • The Service Provider shall use commercially reasonable efforts to ensure that the Services are available with the uptime and performance standards specified in the Service Level Agreement. However, the Service Provider does not warrant uninterrupted or error-free operation of the Services and does not guarantee that the Services will be available 24/7, year-round.
   • The Service Provider agrees to perform any maintenance or support activities for the Services with reasonable skill and care, in accordance with the terms outlined in the Service Level Agreement.
   • The Service Provider’s obligations regarding availability levels, incident management, support services, and maintenance of the Services are exhaustively defined in the Service Level Agreement. The Service Level Agreement also provides the Client’s sole and exhaustive remedies for the Service Provider’s breach of such obligations.
   • The Parties may, from time to time, agree on additional work relating to the Services based on the Client’s needs and requirements. Such additional work shall be agreed upon by the Parties in separate SoWs, which will detail the scope, usage, and fees associated with such additional work.
6. Fees
   • The Client shall pay to the Service Provider as consideration for the Services the Fees specified in the Service Provider’s website. The Fees cover the total fees for all Services to be performed under this Agreement. The Parties may agree on any additional fees payable by the Client for ancillary services.
   • All Fees are exclusive of ancillary fees and taxes. If VAT or any other taxes are applicable to any Fee, such taxes shall be added to the respective invoice pertaining to the relevant Fee.
   • The Service Provider shall issue invoices to the Client per the sums disclosed on the Service Provider’s website. All invoices shall be sent electronically to the Client’s invoicing address.
   • If the Client receives an invoice which it reasonably believes includes a sum which is not valid and properly due, the Client shall notify the Service Provider in writing within 10 days from the receipt of such invoice. The Service Provider shall review the disputed invoice and notify the Client whether the disputed invoice is correct, or if incorrect, the Service Provider shall issue a corrected invoice.
   • The Fee shall be deemed to be paid if such Fee is credited to the Service Provider’s bank account indicated on the invoice. The Client shall pay any additional costs required for payment of the Fee, such as bank transfer fees.
   • The payment term is 14 calendar days for each invoice, unless otherwise agreed upon by the Parties. The Client agrees to pay the Service Provider a late payment fee for undue delay of payment. The late payment fee shall be calculated per each day that the Client is in delay, and the daily amount shall constitute 0.06 % of the principal debt.
   • All sums payable under this Agreement shall be paid in euros (EUR) and shall be paid in full without any set-off, counterclaim, deduction or withholding unless required by law or unless the Service Level Agreement requires otherwise.
   • The Service Provider may unilaterally increase the Fees each Contract Anniversary, provided that such increase does not exceed 10% or the increase of Harmonized Consumer Prices Index (HCPI) per year in euro area as calculated by the Eurostat, whichever is smaller, unless agreed otherwise between the Parties.
7. Confidentiality
   • The Parties shall maintain and keep confidential and shall not disclose directly or indirectly to any third party the other Party’s Confidential Information and shall prevent the third parties’ access to such information. Either Party shall:
     • use Confidential Information only for performing the Agreement;
     • treat all Confidential Information as being strictly confidential and implement and maintain all such technical and organizational security measures as may be reasonably available (having regard to technical developments at the time) and as are appropriate in the circumstances to protect Confidential Information against unauthorized or unlawful processing, accidental loss, distribution or damage;
     • in case Confidential Information includes personal data, follow the disclosing Party’s instructions on processing personal data and adhere to the GDPR;
     • not, without the express prior written consent of the disclosing Party, disclose any Confidential Information to any person other than its advisers and members of governing bodies, directors, officers, members, employees, agents, managers, consultants, and individuals required to perform the Agreement, and will ensure that all those to whom Confidential Information is disclosed are aware of and observe the terms of this Agreement in all respects as if they were a party to this Agreement;
     • procure confidentiality undertakings from any third party to whom Confidential Information is disclosed under this Agreement;
     • only make physical copies of Confidential Information to the extent strictly necessary for the Purpose;
     • not copy or store Confidential Information electronically or transmit it outside the receiving Party’s usual place of business, unless otherwise agreed between the Parties in writing; and
     • not, without the disclosing Party’s prior written consent, use Confidential Information for its advantage, commercial or otherwise.
   • Notwithstanding the foregoing, disclosure of Confidential Information is not considered a breach of this Agreement if the receiving Party is required to disclose it by applicable law or a court of competent jurisdiction, but only to the minimum extent of such requirement and provided that the receiving Party, to the extent permitted by applicable law, gives the disclosing Party prior advance notice before making such disclosure so as to afford the disclosing Party a reasonable opportunity to object to and obtain a protective order or other appropriate relief regarding such disclosure.
   • The receiving Party shall notify the disclosing Party immediately in writing if it becomes aware that Confidential Information has been disclosed to an unauthorised third party and take all reasonable measures to prevent or reduce damage to the disclosing Party.
   • In case of any reasonable doubt, whether the particular information shall be treated as Confidential Information and whether and to what extent it might be disclosed to third parties, the Parties shall consider such information as Confidential Information.
   • Except for the limited right to use Confidential Information for performing this Agreement, this Agreement does not grant the receiving Party any right to such information, including to use, sell, copy, further develop or create derivative works based on such information. The disclosing Party remains the owner of the Confidential Information, regardless of any disclosure of the same.
   • The disclosing Party makes no representation or warranty as to the accuracy, completeness or otherwise of Confidential Information supplied, and the receiving Party agrees that it is responsible for making its own evaluation of such information.
   • Upon termination of this Agreement, each Party shall:
     • return to the other Party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other Party’s Confidential Information; and
     • erase all the other Party’s Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically practicable).
   • The confidentiality obligation in this Section 7 shall remain effective for an indefinite term after the termination of the Agreement due to whatever reason.
8. Data Security
   • The Service Provider shall implement technical and organisational measures to ensure the security, confidentiality, and integrity of the Client Data, including any Personal Data. The Service Provider shall at least meet or exceed:
     • the requirements of this Agreement, especially those detailed in Technical and Organisational Measures annexed hereto;
     • the requirements of the Data Processing Agreement annexed hereto, if it processes Personal Data; and
     • good industry standards and practices.
   • The Service Provider shall:
     • ensure at all times the confidentiality, integrity, availability, backup, and resilience of systems and services processing Client Data as per Platform Security requirements annexed hereto;
     • restore the availability and access to Client Data in a timely manner in the event of a security breach involving Client Data;
     • regularly test, assess and evaluate the effectiveness of technical and organizational measures for ensuring the security of the Client Data; and
     • as regards to Personal Data, pseudonymize and/or encrypt the Personal Data where so required in accordance with the Data Processing Agreement annexed hereto.
   • The Service Provider shall inform the Client without undue delay about any incidents in which the security of the Client Data has been compromised, including any events of accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to, the Client Data transmitted to, stored or processed by the Service Provider. The Service Provider shall inform the Client of Personal Data breaches in accordance with the Data Processing Agreement. The Service Provider shall take due measures in response to security incidents in order to restore the confidentiality, integrity, and availability of the Client Data.
9. Subcontracting
   • The Service Provider shall be entitled to use subcontractors in the performance of the Services under the condition that:
     • prior to engaging any subcontractor, the Service Provider shall conduct a thorough vetting process, which shall include, but not be limited to, an assessment of the subcontractor’s technical capabilities, compliance with relevant legal and regulatory requirements, financial stability, reputation in the industry, and history of service quality and reliability;
     • the Service Provider informs the Client 30 days in advance of contracting a major subcontractor, i.e. those subcontractors that maintain crucial infrastructure for the provision of Services; and
     • the Client shall have the right to object to any proposed major subcontractor based on reasonable grounds related to data security, confidentiality, or service quality. Such objection must be communicated to the Service Provider in writing within 14 days of receiving the notification. In the absence of any objection within this period, the Client is deemed to have no objection to the proposed subcontractors. The Service Provider shall not engage any major subcontractor to which the Client has reasonably objected.
   • Where the subcontractor will have access to Personal data, the Service Provider shall:
     • only use such subcontractors that can provide appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the GDPR and ensure the protection of the rights of the data subject; and
     • impose to the subcontractor the same confidentiality obligation and security requirements as it has under this Agreement.
   • The Service Provider shall evaluate its subcontractors on a regular basis, at least annually, to ensure ongoing compliance with the standards set forth in this Agreement and any changes in legal or regulatory requirements.
10. Change Management
    • The Client may at any time request a change of the scope of the Agreement, the ordered Services and/or new services by submitting a change request to the Service Provider (the Change Request), which shall include:
      • purpose of the change;
      • description of the content of the change;
      • functional requirements;
      • non-functional requirements, if applicable;
      • dependencies, if applicable; and
      • requested timetable for the implementation.
    • The Service Provider shall acknowledge receipt of the Change Request within 14 Business Days, responding either with:
      • a decline of the Change Request;
      • a tentative acceptance of the Change Request;
      • a recommendation for the pre-analysis of the Change Request; or
      • a draft SoW detailing the change.
    • The Service Provider may at its sole discretion reject any Change Request.
    • If the Service Provider responds with a tentative acceptance, it adds the requested changes to their product roadmap to be implemented free of charge but with no time commitment. In this instance, the Service Provider reserves the right to change the scope of the requested changes.
    • If the Service Provider responds with a recommendation for the pre-analysis, its response will contain a recommendation to the Client, containing:
      • details of the pre-analysis, including its scope, the Client’s contributions and outcome;
      • price of the pre-analysis;
      • terms for the performance of the pre-analysis;
      • a preliminary timetable for the pre-analysis; and
      • the deadline for the Client’s acceptance.
    • The Client shall respond to the recommendation within the predetermined time limit. If the Parties agree on the terms of the pre-analysis, the Service Provider will conduct the pre-analysis as specified in its recommendation or as otherwise agreed. Upon completion of the pre-analysis, the Service Provider will, at its sole discretion, decline the Change Request, tentatively accept the Change Request, or prepare a draft SoW.
    • Where the Service Provider responds to the Change Request with a draft SoW, the response shall include:
      • purpose of the change;
      • description of the change;
      • dependencies;
      • deliverables; and
      • cost and timeline.
    • The Client shall within 10 Business Days respond to the draft SoW. If the Client accepts the draft SoW, the Service Provider shall arrange the SoW to be signed by authorised representatives of the Parties.
    • The changes shall be implemented in the scope and within the timeframe stated in the SoW. Implementation includes analysis, development, testing of the change, and any other terms agreed upon in the SoW. Upon delivery and acceptance of the change, the change is launched in accordance with the Service Provider’s release timeline.
11. Indemnification
    • The Service Provider shall defend and indemnify at its own expense the Client against claims and actions that the use of the Services infringes the IPR of a third party (the IPR Claim), provided that the Client notifies the Service Provider without delay, in writing, after becoming aware of such claims, permits the Service Provider to independently defend or settle the claims, gives the Service Provider all reasonably necessary information and assistance available and all necessary authorizations and does not agree to the settlement of any such claim prior to a final judgment thereon, or make any admission in relation to the claim, without the prior written consent of the Service Provider. The Service Provider shall, to the extent possible, endeavour to protect the goodwill and reputation of the Client in connection with such claims.
    • If it is established that, or if in the justified opinion of the Service Provider, the use of the Services infringes the IPR of a third party, the Service Provider shall at its own expense either:
      • obtain the continued right to the use of the Services for the Client in accordance with the terms of this Agreement; or
      • modify or replace the Services in order to eliminate the infringement.
    • The Service Provider shall, however, not be liable to the Client for any IPR Claim if it:
      • results from the use of the Services in combination with any hardware, product, software or service of a third party not furnished by the Service Provider;
      • results from compliance with the Client’s instructions;
      • is based on or arising out of the use of the Services outside the scope set forth in the Agreement or in violation of this Agreement; or
      • results from compliance with international standards.
    • This Section 11 states the entire liability of the Service Provider and the Client’s sole and exclusive remedies for any IPR Claim. The Service Provider shall indemnify the Client and pay all direct damages, costs and expenses (including reasonable legal costs and expenses) awarded against or incurred by the Client as a result of any IPR Claim but shall not be responsible under this indemnity for any settlement or compromise made by the Client without its consent.
    • Without prejudice to the indemnity under Section 4, the Client shall indemnify and hold the Service Provider harmless from any damages, costs or fines awarded against or claimed from the Service Provider in respect of any legal action by the Client’s customers in connection with a breach of an agreement between the Client and its customers, provided that the Service Provider notifies the Client without delay, in writing, after becoming aware of such claims.
12. Limitations of Liability
    • Neither Party shall be liable to the other Party for any loss of profits, use, goodwill, revenue, or profits or for any incidental, indirect, special, consequential, or exemplary damages. However, neither Party limits its liability for causing death or personal injury, fraud, and any other act, error, or omission, for which liability may not be limited under Applicable Laws.
    • The Service Provider shall not be liable for any errors, unavailability, or malfunctions of the Services due to:
      • Force Majeure Events;
      • the fault or failure of computer systems or networks (including fault or failure of the internet or any public telecommunications network, network overload, disturbances or malfunctions);
      • third party integrations or the software or systems that make the Services available;
      • loss, alteration, or unauthorised access to the Client Data; or
      • any errors, bugs or any inappropriate functioning or malfunctioning of the Services which results from any changes or modifications to the Services made by the Client or any third party acting on behalf of the Client.
    • The Service Provider’s liability for the availability of the Services shall be defined, governed, and limited by the terms set forth in the Service Level Agreement. The Parties expressly acknowledge and agree that the Service Level Agreement contains specific provisions related to liabilities, including but not limited to, representations, warranties, remedies, and limitations of liability. In the event of any inconsistencies or conflicts between the terms of this Agreement and the Service Level Agreement concerning liability, the terms of the Service Level Agreement shall prevail.
    • Without limiting the above, the Service Provider’s liability shall be strictly limited to damages arising directly from its own wilful misconduct. The Service Provider shall not be liable for any acts, errors, or omissions that do not constitute wilful misconduct as defined under Applicable Laws. The Service Provider is not liable for any damages suffered by third parties.
    • The Service Provider’s liability is limited whether or not the Service Provider has been informed of the possibility of such damages, even if a remedy set forth in the Agreement is found to have failed its essential purpose. The Service Provider will have no liability for any failure or delay due to matters beyond the Service Provider’s reasonable control. Subject to Sections 1 and 12.2, the maximum aggregate liability of the Service Provider shall in no event exceed the amount that is equal to the Fees the Client paid to the Service Provider in the course of the previous three months from the occurrence of the event that resulted in the Service Provider’s liability, or if fewer than three months have passed since the Effective Date, 100% of the Fees attributable to the full calendar months that have passed since the Effective Date.
13. Representations and Warranties
    • Each Party represents and warrants to the other that:
      • the Party is properly constituted and incorporated under the respective Applicable Laws;
      • the Party has full authority to enter into and perform this Agreement;
      • the representative of the Party has all rights, including necessary internal corporate approvals (if applicable), necessary to enter into this Agreement;
      • the obligations of the Party set forth in this Agreement are valid, binding on and enforceable against the relevant Party; and
      • neither the signing nor the performance of this Agreement conflicts with or results in a violation of any provisions of: (a) any legal acts to which the Party is subject; (b) any agreement or obligation binding on the Party (if applicable); (c) any judgment, order, injunction, decree or ruling of any court or governmental or local authority to which the Party is subject; (d) the terms and conditions of any licence or permit granted to the Party.
    • The Service Provider represents and warrants that:
      • elements of the Services which constitute Open Source Software, if any, are delivered in a manner which is compliant with their licence terms; and
      • the Services are delivered in a manner which complies with Applicable Laws.
    • The Services are provided “as is” and, except as expressly set forth in this Agreement, without any warranties or representations of any kind, either express or implied. The Service Provider specifically disclaims all implied warranties, including but not limited to warranties of merchantability, non-infringement, and fitness for a particular purpose. Furthermore, the Service Provider makes no warranties or representations regarding the use of the Services, or results obtained or intended to be obtained in the course of using the Services. The Client acknowledges that it has relied on no warranties other than the express warranties in this Agreement and that no warranties are made by any of the Service Provider’s agents, employees, or representatives.
    • The Client acknowledges and agrees that, while the Service Provider endeavours to deliver high-quality services, no software service can be guaranteed to be completely free from bugs or errors. Accordingly, the Service Provider does not represent or warrant that the Services will operate with 100% uptime or be entirely free from bugs and errors. Furthermore, the Service Provider disclaims any warranties regarding the acts and omissions of third-party vendors and hosting partners, including but not limited to their ability to provide the necessary hardware, software, networking, storage, and related technology required to deliver the Services. The Service Provider’s obligations with respect to service availability and performance are solely as expressly set forth in the Service Level Agreement annexed to this Agreement.
14. Notices and Communications
    • Any notices, requests, or other communications to be given or made under this Agreement to a Party shall be directed to the respective designated contact person(s). Each Party is obliged to promptly notify the other of any changes in their designated contact person(s).
    • All documents to be furnished or communications to be given or made under this Agreement shall be at least in a form that can be reproduced in writing and in the English language, unless the Parties agree otherwise.
    • The Parties have designated the contact persons in a separate communication.
15. Term and Termination
    • This Agreement shall become effective and binding upon the Parties as of Effective Date, irrespective of the factual date of signing by the Parties. The initial Term of this Agreement is 1 (one) year.
    • This Agreement is subject to a Renewal Period of 1 (one) year. Unless the Parties have terminated this Agreement or expressly state otherwise, this Agreement will automatically renew for the Renewal Period at the end of the Term and the end of each subsequent Renewal Period.
    • Either Party may terminate the Agreement for any cause, by giving 90 days’ advance notice to the other Party.
    • Either Party may terminate this Agreement by giving 30 days’ advance notice upon the occurrence of a material breach committed by the infringing Party:
      • which it is not capable of being remedied; or
      • which is remediable, but is not remedied within 30 days, or such other period as may be agreed between the Parties, of the infringing Party’s receipt of a notice from the aggrieved Party relating to such breach and requiring such breach to be remedied.
    • In the event of termination:
      • the Service Provider agrees to provide reasonable assistance to the Client for the smooth transition of the Services to another provider or to the Client itself, for a period not exceeding 3 months after termination. This assistance may include transferring data, providing necessary documentation, and support in migrating services;
      • the Client shall be responsible for notifying the Users of the change in service provision. The Service Provider shall cooperate with the Client to ensure that such notifications are consistent with the terms of the Agreement and do not unfairly or inaccurately represent the Service Provider’s role or responsibilities;
      • the Service Provider shall provide the Client with all Client Data including Users’ data in its possession in a commonly used format, ensuring compliance with data protection laws and regulations. The Service Provider shall delete or anonymize any Users’ data in its possession upon confirmation of successful transfer, unless legally required to retain it; and
      • any final settlements, including outstanding payments or refunds, between the Parties shall be completed within 30 days following the effective date of termination. The terms for such settlements shall be based on the pre-existing contractual obligations and any additional agreements made during the termination process.
    • Termination of the Agreement does not release the Parties from their outstanding obligations arising from the Agreement and does not affect the rights or remedies of a Party arising out of breach of the Agreement.
    • Termination of this Agreement shall, however, not affect the validity of such terms which by their nature survive the termination of this Agreement.
16. Final Provisions
    • This Agreement constitutes the entire agreement between the Parties relating to the subject matter hereof, and supersedes any previous communications, whether oral or written, between the Parties in respect of the subject matter hereof.
    • The Service Provider is an independent contractor and nothing in the Agreement shall render the Service Provider an employee or agent of the Client and the Service Provider shall not present themselves towards third persons as such.
    • No amendment to this Agreement shall be effective unless formalized in writing and signed by the Parties.
    • The Parties may not transfer or otherwise assign any of their rights or obligations arising from the Agreement to a third party without the prior written consent of the other Party.
    • The invalidity of any portion of this Agreement shall not render this Agreement itself or any other portion hereof invalid. If any provision of the Agreement is held invalid or unenforceable, the remaining provisions will remain in full force and effect. The Parties shall take due measures to replace the invalid or unenforceable provision with a provision that best reflects the intent of both Parties.
    • This Agreement is governed by and construed in accordance with the laws of the Republic of Estonia, except for the conflict of laws rule.
    • All disputes arising from the Agreement shall be settled via negotiations. If an amicable settlement cannot be reached, the dispute shall be exclusively settled in accordance with the laws of the Republic of Estonia, in Harju County Court in Tallinn.
    • This Agreement is executed in a single electronic copy in the English language.