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Terms of Service

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Contents

A.  Definitions  4

1.  Definitions of terms used  4

B.  Terms of Service  5

1.  Services  5

Our responsibilities  5

2.  Service levels  5

3.  Service Support  6

4.  Service changes  8

C.  Your responsibilities  8

1.  Service usage responsibilities  8

2. Services Usage Restrictions  8

D.  Accountability and responsibility of the Parties in case of error, omission, fraud and breach of contract  9

E.  Change of ownership and assignment  10

F.  Our personnel  10

G.  Our Service Security  11

H.  Disaster Recovery and Business Continuity  11

I.  Non-Oradian Product and Service  12

J.  Fees and payment for services  13

1.  Fees  13

2.  Overdue charges  13

3.  Suspension of service and acceleration  13

4.  Payment disputes  14

K.  Proprietary rights  14

1.  Reservation of rights  14

2.  Consent by You to host Your data and applications  14

L.  Confidentiality  15

1.  Definition of confidential information  15

2.  Protection of confidential information  15

3.  Compelled disclosure  16

4.  Parties Consent to use each other’s trademarks.  16

M.  Representations, warranties, exclusive remedies and disclaimers  16

1.  Representations  16

2.  Our warranties  16

3.  Disclaimers  17

N.  Mutual indemnification  17

1.  Indemnification by Us  17

2.  Indemnification by You  18

O.  Limitation of liability  18

1.  Limitation of liability  18

2.  Exclusion of consequential and related damages  18

P.  Term and termination  19

1.  Termination of Contract  19

2.  Refund of payment upon termination  20

3.  Your data portability and deletion  20

4.  Surviving Provisions  20

Q.  Governing law, jurisdiction, notices  20

1.  Notices  20

2.  Governing Law  21

R.  General provisions  21

1.  Anti-corruption  21

2.  Contract and order of precedence  21

3.  Relationship of the parties  22

4.  Third-party beneficiaries  22

5.  Waiver  22

6.  Severability  22

7.  Attorney fees  22

8.  Data Privacy and Protection  22

Appendix 1: Data Processing Agreement  24

1. Definitions and Interpretation  24

2.  Personal data types and processing purposes  25

3.  Provider’s obligations  25

4.  Provider’s employees  26

5.  Security  26

6.  Personal data breach  27

7.  Cross-border transfers of personal data  29

8.  Subcontractors  29

9.  Complaints, data subject requests and third-party rights  30

10.  Term and termination  31

11.  Data return and destruction  31

12.  Records  32

13.  Audit  32

14.  Warranties  32

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All capitalised terms used but not defined herein shall have the respective meanings given to them in the Service Agreement.

 

Business Day means working days (Monday to Friday) from 03:00 hours to 17:00 hours Central European Time (CET) or Central European Summer Time (CEST), as applicable. https://www.timeanddate.com/worldclock/converter.html

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Confidential Data means information, including Personal Data, in whatever form that the Parties hereto are obligated, by Law or contract, to protect from unauthorised access, use, disclosure, modification or destruction together with any data owned or licensed by the Parties that is not intentionally shared with the general public or that is classified by the Parties with a designation that precludes sharing with the general public.

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Data means electronic data and information that You input and update onto the Services and/or that We input, update, process and store at Your request in accordance with the Contract.

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Malicious Code means code, files, scripts, agents or programs intended to do harm, including but not limited to viruses, worms, time bombs and trojan horses.

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Non-Oradian Product and Service means any products and/or services that are not owned, and/or produced by Oradian and which are purchased for the purposes of interoperating with the Services.

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Personal Data has the meaning set out in the Data Processing Agreement.

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Security Breach is any event involving a known, actual, or suspected compromise of the security, confidentiality or integrity of Confidential Data and Personal Data.

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These terms apply to the Services that You have engaged Us to provide under the

Service Agreement and any addenda thereof. In case of any conflict between the Terms of Service and the Service Agreement or its addenda, the provisions of the Service Agreement and any such addenda shall govern.

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Our responsibilities

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2.1 We will use commercially reasonable efforts to make Our Services available 99.5% of the time.

2.2 In the event that We do not meet the agreed service requirements as specified under the Service Agreement, You are eligible to receive a Service Credit. Service Credits apply only to the following year’s subscription. If You do not renew, no monetary compensation or refund will be provided.

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3.1 We will provide support for the Services specified in the Service Agreement. We do not provide support for any malfunction or difficulties in connection with Your use of any content or services You obtained directly from third parties.

In providing support, We will use reasonable efforts to:

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3.2 When submitting a case We will classify the severity of the case based on Our professional opinion as defined under clause 3.6 here below.

3.3 All response times are measured from the point when a case has been properly submitted by an appointed Authorised User and Oradian has confirmed that the case has been received. Oradian shall confirm that the case has been received within one hour of having received the relevant support request during a Business Day. We do not represent, warrant, or guarantee that:

3.5 The response time indicates the time in which we guarantee to start working to resolve the submitted case, after we have confirmed receipt and confirmed the case.

3.6 Any changes and/or updates made to the below indicated response times shall be first notified to the Customer in advance via email to the duly appointed Customer Representative as defined under the Service Agreement.

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Case severity	Case description	Response time (up to)
Critical	Critical production case that severely impacts Your use of the Service. The situation interrupts Your business operations, and no procedural workaround exists. Service is down or unavailable. Large set of data is corrupted or lost. A critical feature or function is not available.	1 (one) hour (if the support case is submitted during a Business Day) . 4 (four) hours (if the support case is submitted outside of a Business Day)
			High	The Services are operational but important functionality is impacted or performance degradation is experienced. The case is causing an impact to certain portions of Your business operations and no reasonable workaround exists.	4 (four) hours (if the support case is submitted during a Business Day) . 1 (one) Business Day (if the support case is submitted outside of a Business Day)
			Medium	There is a partial, non-critical loss of use of the Services with a medium impact on Your business, but Your business continues to function. Short-term workaround is available, but not scalable.	. . 3 (three) Business Days
Low	There is a partial, non-critical loss of use of the Services with a low impact on Your business and its function.  Workaround is available.	. 5 (five) Business Days
Planned	Your use of the Services is not affected but You have a proposal that would improve Your use of the Services.	. Determined after the request is included in the product roadmap

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4.1 We will  communicate changes, updates and interruptions to Services that may affect Your operations and availability thereof. Oradian uses service updates to update Instafin to the latest released version. We will notify You about upcoming Planned Maintenance that may affect the Services via email to the duly appointed Customer Representative.

4.3 In the event of unplanned or emergency maintenance, We will notify You as soon as reasonably possible and provide status updates until the issue is resolved.

4.4 It is important to note that a notification will not be sent to You when Weekly Maintenance takes place in accordance with section B2.2.2(b) (Service levels).

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You are responsible for the following:

2. Services Usage Restrictions

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You shall not:

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1.1 In complying with Your local regulatory requirements, it is Your responsibility to ensure that:

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1.2 You will not in any manner use Our Services for the purpose of carrying out any activities which are considered illegal or unlawful under either the laws governing You or Oradian, including, but not limited to, fraud, money laundering, human trafficking and/or tax evasion. If We have reasonable belief that Our Services are being used to carry out illegal or unlawful activities, We will immediately suspend the provision of Our Services to You without prior written notification.

1.3 Oradian will report any identified incidents and/or problems, including but not limited to errors and omissions, security breach, misuse, irregularity, or fraud that may occur and affect the provision of Our Services to You, unless We are legally obliged not to report an incident of fraud that may be connected to You.

1.4 Except as otherwise set forth in the Contract, neither Party will be liable for immaterial breaches, provided that such breaches to the Contract are corrected following discovery thereof.

1.5 Upon the discovery of an inadvertent error, omission or breach by either Party, appropriate adjustments shall be made as soon as practicably possible to restore to the fullest extent possible to the position they would have been if no such inadvertent error or omission had occurred.

1.6 Notifications of any errors, omissions and/or breaches to the Contract relating to the provision of Services shall be sent in English Writing in accordance with Section Q1 (Notices) of the Terms of Service.

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1.1 Subject to clause 1.2 below, the Parties may not assign any of their rights or obligations under the Contract whether by operation of law or otherwise, without the other Party’s prior written consent which shall not be unreasonably withheld.

1.2 A Party may assign the Contract in its entirety without the other Party’s consent where such assignment is made in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of the Party’s assets PROVIDED THAT such assignment is made to:

(a)   a corporate related party which includes an entity that directly or indirectly controls, is under common control with, or is controlled by such Party; and/or

(b)  has entered into a Sale and Purchase Agreement to acquire all or substantially all of the assets of such Party and such assignment does not change and/or adversely affect the terms of the Contract including but not limited to security standards, data protection and service levels.

1.3 Subject to the foregoing, this Contract will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

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1.1 We are responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under the Contract, except as otherwise specified. Nothing under this Terms of Service and Service Agreement shall be construed to establish employer-employee relationship between You and Our personnel.

1.2 The roles and responsibilities of Our personnel are defined under Section F of the Service Agreement.

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1.1 We will ensure the security and integrity of the Services as well Your Data by complying with the following security measures:

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1.2 We shall further ensure that all software and infrastructure related to Our Services are kept up to date by applying the latest available security patches and upgrades. We shall also ensure full segregation of Your Data so that each Customer is running inside an isolated environment where Your Data and can only communicate within its dedicated database as well as only respond to Your Authorised User requests.

1.3 A Party will notify the other Party, immediately upon discovery and without unreasonable delay, any Security Breach involving any Confidential Data. The Party undergoing a Security Breach will use commercially reasonable efforts to contain such a breach and provide the other Party with a description of the Security Breach and the type of data that was the subject of the Security Breach. The Party undergoing the Security Breach agrees to take action at its own expense, to investigate the Security Breach, to take all commercially reasonable actions to identify, prevent, and mitigate the effects of any such Security Breach, and to carry out any recovery or other action necessary to remedy the Security Breach. Each Party must keep the Security Breach and information it receives about the other Party in connection with the Security Breach confidential and must not use or disclose that information without the prior written consent of the other Party except to the extent that it is required by Law.

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1.4. A Security Breach if not remedied within a reasonable time, that is by no later than the date and time agreed between the Parties, will be construed as a material breach of Contract.

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1.5 Subject to the Terms of Service in the event that the breaching party fails to rectify its Security Breach within an agreed period of time the non-breaching party shall be entitled to seek any possible remedy including but not limited to claiming for compensation for any loss or damage.

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1.1 We shall ensure availability of Our Services by implementing procedures and policies for backup, high availability and disaster recovery as well as continuously improve those procedures and policies to minimise possible data loss and recovery times, including periodically validating such procedures.

1.2 Our Services offers a maximum recovery point objective (“RPO”) of 15 (fifteen) minutes and recovery time objective (RTO) of 8(eight) hours.

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1.1 Any acquisition by You of a Non-Oradian Product and Service and any exchange of data between You and the provider of a Non-Oradian Product or Service is solely between You and the provider of the Non-Oradian Product and Service. We do not warrant nor support any Non-Oradian Product and Service and shall not be held liable or responsible for any loss or damage to any persons, property or information arising from Your acquisition, maintenance or use of a Non-Oradian Product and Service.

1.2 In cases where We procure a product and/or service from a third-party service provider as part of our services to You, We guarantee that the service will be at all times fully licenced and/or legally authorised for the purposes for which it has been purchased. In instances where a service provider ceases to make available to Us usage of their application for whatever reason beyond Our control, Oradian shall in the first instance endeavour to rectify such position by engaging a suitable service provider to replace the original service provider. If Oradian is unable to find a suitable service provider to replace the original service provider, You will not be entitled to any refund, credit, or other compensation, unless the removal of the service materially decreases the functionality of the Services. In cases where a refund is determined We will compensate You with the equivalent value of the decrease in functionality.

1.3 If You procure, install and/or enable a Non-Oradian Product and Service for use with Our Services, You will automatically grant Us permission to allow the provider of the Non-Oradian Product and Service to access Your Data as required for the interoperation between the Non-Oradian Product and Service with Our Services. We are not responsible for any disclosure, modification or deletion of Your Data resulting from use of a Non-Oradian Product and Service.

1.4 Subject to obtaining confirmation that Our duly appointed service providers are complying with the relevant data protections laws, You also hereby consent to Oradian sharing Your Data with Our service providers in cases where We procure a service from a third-party service provider as part of Our services to You.

 

1.5 The Services may contain features designed to interoperate with a Non-Oradian Product and Service. To use such features, You may be required to obtain the relevant authorisation from the provider of the Non-Oradian Product and Service as well as grant Us access to Your Non-Oradian Product and Service account(s). If the provider of the Non-Oradian Product and Service ceases to make its product and/or service available for interoperation with the Services on reasonable terms, We may cease providing the relevant service features without entitling You to any refund, credit, or other compensation.

1.6 We shall notify You if We are required by a licensor to remove a Non-Oradian Product and Service or receive information that the Non-Oradian Product and Service provided to You may violate the applicable law or any third-party rights. In such an event, You must promptly remove the Non-Oradian Product and Service from Your systems. If You do not take the required action accordingly, We may disable the applicable Non-Oradian Product and Service until the potential violation is resolved.

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1.1  The Service Agreement shall stipulate the Services to be provided and any work to be performed.

1.2 You will pay all fees specified in the Service Agreement. Fees are based on the Services purchased and/or Your actual usage. Our fees are non-cancellable and non-refundable to the extent permitted by law.

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1.3 You may not disclose the pricing terms and fee agreed under the Contract to any third party without prior consent from Oradian. You will notify Us immediately upon becoming aware of any unauthorised disclosure by You of the pricing terms and fee agreed under the Contract to a third party and will provide Us with assistance in remedying such unauthorised disclosure to the third party.

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If any invoiced amount is not received by Us within 5 (five) Business Days of the invoice date, without limiting Our rights or remedies, outstanding fees may accrue late interest at the rate of 1% of the outstanding balance per month or 12% per annum of the outstanding balance. We may also amend future Subscription renewals and the Service Agreement to include payment terms shorter than those specified under Your current Service Agreement.

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3.1 If payment for any amount or any fees due under the Service Agreement is overdue for 15 (fifteen) or more Business Days, We may, without limiting Our rights and remedies, accelerate Your overdue fees in that the amount becomes immediately due and payable and We may suspend Our Services to You until the outstanding amount is paid in full.

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3.2 We will notify You at least 7 (seven) Business Days before We suspend Our Services in accordance with clause 3.1 above and You acknowledge that We are not obliged to continue providing the Services in such a case. It is in Our discretion to suspend Our Services to You or terminate the Service Agreement in accordance with Section P1.2 (Termination of Contract) of the Terms of Service.

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3.3 You shall not, in any manner, use Our Services for the purpose of carrying out any activities which are considered illegal or unlawful under either of the laws governing You or Oradian including, but not limited to, fraud, money laundering, human trafficking, and/or tax evasion. In the event that Oradian has reasonable belief that the Services are being used to carry out illegal or unlawful activities, We will immediately suspend the provision of the Services to You without prior written notification.

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3.4 During the period of suspension, You will continue to have access to Your Data. and You retain Your right to remove and/or extract your Data, except in cases of suspension based on Section K3.3 (Suspension of service and acceleration) of the Terms of Service , or when Oradian is mandated or compelled by law, rules and regulations to restrict Your access to Your Data and the Services, or upon an order of a competent court of government entity to limit Your access and Your statutory right over Your Data.

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We may elect not to exercise Our rights under Section J2 (Overdue charges) or Section J3 (Suspension of service and acceleration) of the Terms of Service if in Our opinion You are disputing the applicable fees reasonably and are cooperating diligently to resolve the dispute.

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1.1 Subject to the limited rights stated under this Terms of Service, We and Our licensors reserve all rights, titles and interest in and to all the software used for the purposes of Your Subscription Services, including training material, documents shared with You to assist You with the use of the Services. No rights, titles and interests are granted to You under the Contract.

1.2 We own the Services including its source code and We and/or Our contractors own the hardware and software infrastructure which the Services run on. We own all documentation including but not limited to infrastructure documentation and procedures documentation used to maintain the Services.

1.3 You own Your Data that is inputted into the Services. You may at any time request export or remove parts of or all Your Data within thirty (30) days of Your written request to Us.

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2.1 You grant Us and Our Affiliates a worldwide, limited-term access to host, copy, transmit and display Your Data, any Non-Oradian Product and Service and program code created by or (in the case of any Non-Oradian Product and Service) for You as necessary for the purposes of rendering the Services. Accordingly, You warrant that Your Data has been collected in accordance with the applicable laws, rules and regulations, prior consent has been secured and appropriate notice has been given to data subjects on the extent and purpose of the data sharing between You and Oradian, and all requirements for data sharing under the applicable laws are complied with.

2.2 We acquire no right, title or interest from You or Your licensors under the Contract to Your Data of any Non-Oradian Product or Service.

 

2.3 You grant Us and Our Affiliates free worldwide, perpetual, irrevocable consent to incorporate any suggestions, enhancement requests, recommendations, corrections and feedback provided by You in relation to the Services.

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1.1 Your Confidential Information includes Your Data.

1.2 Receiving Party means a party when it receives Confidential Information, directly or indirectly, from the other party and Disclosing Party means a party when it discloses its Confidential Information, directly or indirectly, to the other party.

1.3 Our Confidential Information includes:

1.4 Confidential Information does not include any information that:

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2.1 The Receiving Party will use reasonable care to protect the Disclosing Party’s Confidential Information and to only use the Disclosing Party’s Confidential Information within the scope of the Contract.

2.2 Except as otherwise authorised by the Disclosing Party in writing, access to Confidential Information of the Disclosing Party shall be limited to the Receiving Party, its Affiliates’ employees and contractors who need access to the Confidential Information for purposes of meeting their obligations under the Contract.

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The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a part of, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

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The Parties hereby grant each other the right to use and display each other’s name and logo (“Trademarks”), as well as share and post articles, photos, videos and advertisements related to the Services for promotional means on their respective websites, social media platforms and other promotional material. Any usage of Trademarks and other promotional material and articles may be subject to the proprietor Party’s guidelines as may be provided from time to time. The Parties may also notify each other by email to discontinue the use of each other’s Trademarks with immediate effect. Neither Party shall use the other Party’s Trademarks in any manner that will disparage, harm or otherwise damage the other Party’s goodwill in its Trademarks. The Party using the Trademarks or sharing any social media articles related to the Services shall not, at any time, misuse the same or mispresent itself as an affiliate or other legal agent of the Party whose Trademarks are being used. Any rights relating to the usage of Trademarks or sharing of social media articles related to the Services shall be immediately discontinued in the event that the Contract between the Parties is terminated.

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The Parties represent that they are validly entering and agreeing to the Contract with legal power to do so.

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Oradian warrants that:

In case of a breach of the said warranties, Your exclusive remedies under the Contract, are those described under Section P1 (Termination of Contract) and Section P2 (Refund of Payment upon termination) of the Terms of Service.

 

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Except as expressly provided in this Terms of Service, neither party makes any warranty of any kind, whether the warrant is express, implied, statutory or otherwise stated. Each party disclaims all implied warranties, including any implied warranties of merchantability, fitness for a particular purpose or non-infringement to the maximum extent permitted by law. Beta services are provided “as is” and are exclusive of any warranties. Each party disclaims all liability and indemnification obligations for any harm or damages caused by any third-party providers.

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1.1 We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of the Services infringes or misappropriates their third–party rights to intellectual property (“Third–Party Rights Claim”). We will indemnify You from any damages, attorney fees and costs awarded against You as a result of the Third– Party Rights Claim and/or for amounts that You may have had to pay under a court-approved settlement in relation to a Third–Party Rights Claim, provided that You:

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1.2 If We receive information in relation to an infringement or misappropriation claim related to the Services, We may in Our discretion and at no cost to You:

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You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Services is in breach of the Contract, infringes or misappropriates such third party’s intellectual property rights or violates the applicable law (a “Third-Party Claim Against Us”), and You will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Third-Party Claim Against Us, provided We:

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1.1 Neither Party’s liability with respect to any single incident arising out of or related to the Contract will exceed the amount You pay within the 12 (twelve) months preceding the incident, provided that neither Party’s aggregate liability for all claims, losses, damages and costs incurred or suffered out of or related to the Contract exceeds the total amount You paid. The foregoing limitations apply to the maximum extent permitted by law, whether an action is in contract or tort and regardless of the theory of liability. The above limitations will not limit Your payment obligations under Section J (Fees and payment for services) of the Terms of Service.

1.2 Nothing in this agreement limits any liability which cannot legally be limited, including but not limited to liability for:

(a)   death or personal injury caused by negligence;

(b)   fraud or fraudulent misrepresentation.

To the maximum extent permitted by the law, in no event will either Party have any liability to the other Party for any lost profits, revenues or indirect, special, incidental, consequential, cover or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if a Party has been advised of the possibility of such damages.

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1.1 Either Party may terminate the Contract for cause:

1.2 Oradian may terminate the Contract by providing 10 (ten) Business Days written notice to You in case of late payment of any outstanding invoice issued to You. In such cases the Contract will terminate with the expiration of the notice period unless the full outstanding payment is paid by You and received by Oradian before the expiry of the notice period.

1.3 You may terminate the Contract in accordance with clause 1.1 above. In such cases the Contract will terminate with the expiration of the notice period unless there are no outstanding payments due to Us and in which case, We may agree to terminate the Contract prior to the expiration of the notice period.

1.4 The Parties will not be considered in breach nor incur any liability to the other Party for any losses or damages of any nature whatsoever incurred or suffered by that other Party if and to the extent that the performance of their respective obligations, excluding payment obligations, is prevented by an event of Force Majeure that arises during the Subscription Term.

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1.5 An event of “Force Majeure” shall mean an event beyond the control of the Party, which prevents it from complying with any of its obligations under the Contract including but not limited to: acts of government or sovereignty; hostilities; war (whether declared or not); invasion; act of foreign enemies; embargo; rebellion; revolution; insurrection, or military or usurped power; riot; civil commotion; labour strike/dispute; slowdown; sabotage; pandemic; epidemic; other disturbances; flood; Acts of God; non-performance by suppliers or subcontractors due to an event of Force Majeure (other than by companies in the same group as the party seeking to rely on this clause); or any other causes and more generally any other circumstances or situation whether similar or different which is reasonably beyond the control of the Party claiming Force Majeure.

1.6 The Party affected by Force Majeure (“Affected Party”) shall give notice to the other Party in writing within 2 (two) Business Days from the time of the occurrence of the Force Majeure.

1.7 Provided the Affected Party has complied with clause 1.6 above, if a party is prevented, hindered or delayed in or from performing its obligations under this agreement by a Force Majeure event, the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

1.8 If an event of Force Majeure prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than ten (10) Business Days, the Party not affected by the Force Majeure event may terminate this agreement by giving written notice to the Affected Party.

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If the Contract is terminated by You in accordance with Section P1 (Termination of Contract) of the Terms of Service, We will not refund any prepaid fees except in circumstances where it has been determined that Oradian has committed a material breach. If the Contract is terminated by Us in accordance with Section P1 (Termination of Contract) of the Terms of Service, You will pay any unpaid fees covering the Subscription Term. No event (save an event of Force Majeure), including terminating the Contract with cause will relieve You of Your obligation to pay any outstanding Subscription Fees payable to Us.

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Upon termination of the Contract, We will make Your Data available to You for export or download within 30 (thirty) days after the Contract is terminated or expired provided that all Your fees payable to Us are paid in full. After the 30 (thirty) days following Your Contract’s termination or expiration, We are not obliged to maintain or provide Your Data unless there is a dispute as to the fees payable by You, in which case We shall be obliged to maintain Your Data until the dispute is resolved. We will delete or destroy all copies of Your Data stored in Our systems or otherwise in Our possession or control, unless legally prohibited or there is an unresolved dispute between the Parties. Upon request, Oradian shall issue a certificate confirming that Your Data has been deleted.

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Section J (Fees and Payment for Services), Section K (Proprietary rights), Section L (Confidentiality), Section M (Representations, warranties, exclusive remedies and disclaimers.), Section N (Mutual Indemnification), Section O (Limitation of liability), Section P2 (Refund of Payment upon termination), Section P3 (Your data portability and deletion), Section Q (Governing law jurisdiction, notices) and Section R (General provisions) of the Terms of Service will survive any termination or expiration of the Contract.

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The Contract shall be governed by, and construed in accordance with, the laws of England. The courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with the Contract.

The Parties agree to the applicable governing law above without regard to conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.

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By accepting the Terms of Service You confirm that You have not received, been offered and/or will accept any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with the Contract. Reasonable gifts and entertainment provided in the ordinary course of business do not form part of the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our legal department at legal@oradian.com.

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2.1 Subject to section B1 (Services) of the Terms of Service the Terms of Service supersedes all prior and current agreements, proposals or representations, written or oral, concerning its subject matter.

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2.2 We have the right to modify and amend the Terms of Service from time to time and the most current version will be posted on Oradian’s website and/or sent to You by email. If an amendment is material, as determined in Oradian’s reasonable discretion We will notify You by email 30 (thirty) days in advance of any material change being effected. Except in the case of an amendment being made to satisfy legal requirement We will provide You with advance notice of material amendments.

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2.3 If an amendment has a material adverse impact on the data privacy or security of Your Data and You do not agree to the amendment You may terminate the Contract by notifying Us within 30 (thirty) days of receiving notice of the amendment or date of publication of the updated version (otherwise, you will have been deemed to have consented to the amendment).

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2.4 The terms and conditions of the updated version of the Terms of Service shall apply to all existing Service Agreements following the date of publication of the updated version.

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2.5 Any changes made to the Service Agreement must be in writing and signed by both Parties. The Service Agreement shall take precedence in cases of a conflict or inconsistency between the Service Agreement and the Terms of Service.

The Parties are independent contractors. The Contract does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.

This Contract is entered into solely between and may only be enforced by the Customer and Oradian, and, subject to section N (Mutual indemnification), and section O (Limitations of liability) hereof “, this Contract will not be deemed to create any rights in third parties, or to create any obligations of a Party to any such third parties.

No failure or delay by a Party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

6.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.

6.2 If any provision or part-provision of the Contract is deemed deleted under clause 6.1 above, the Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

You will pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due to Us under the Contract following Your breach of Section J (Fees and payment for services)).

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Our Services include processing of personal data on behalf of and in accordance with Your instructions. Your Data is processed in accordance the EU General Data Protection Regulation 2016/679 and other applicable laws.

By signing the Service Agreement You are agreeing and providing consent for Us to process Your Data and those of Your clients in accordance with the Data Processing Agreement included under Appendix 1 herein for the purposes of providing the Services.

You also confirm that You have obtained the necessary consent from Your clients, the data subjects to share their personal data with Us for the purposes of procuring the Services for which you have engaged Us.

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Appendix 1: Data Processing Agreement

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Background

Operative Provisions

1. Definitions and Interpretation

The following definitions and rules of interpretation apply in this Agreement.

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The Customer warrants and represents that the Provider’s expected use of the Personal Data for the Business Purposes and as specifically instructed by the Customer will comply with the Data Protection Legislation.

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ANNEX A

ORADIAN APPPOINTED SUB-PROCESSORS

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Personal Data Processing Purposes and Details

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Personal Data Processing Purposes and Details

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