Gepard Platform Terms Of Service

Last updated: 30.12.2019
1.1 Basis of the agreement
Gepard Platform is supplied to Client according to the Terms of Service, that explain access to and use of the Gepard software.
1.2 The following definitions apply to this Agreement:
“Affiliates” means entities controlling, controlled by or under common control with Supplier or the Client.
“Agreement” means (subject to clause 10.1.1) the terms and conditions set out in this document (“Terms and Conditions”); the applicable order form (together with any renewal thereof); and Special Conditions (if any) agreed between Supplier and Client. In case of conflict between the following order of precedence: 1. Order form; 2. Special Conditions; 3. these Terms and Conditions.
“Charges” mean the fees payable by Client for the right of use of the Gepard Platform and Support Subscription as specified in the applicable ordering document.
“Client” means an entity specified as the Client on the applicable ordering document.
“Control”: an entity will be deemed to Control another entity if it has the power to direct or cause the direction of the management or policies of such entity, whether through the ownership of voting securities, by contract or otherwise.
“Documentation” means the technical documentation provided to Client for the relevant Gepard Platform functionality which will be provided once customization is completed.
“Subscription Period” means the period from the Start Date to the Initial Expiry as specified in the applicable ordering document; where the Start Date for the Gepard Platform has for any reason to be adjusted, Supplier may at its discretion either a) adjust the Initial Subscription Period to run from the revised Start Date or b) reduce it and invoice on a pro-rata basis for the reduced period.
“Renewal Period” means each successive 12 months period (or such other period as the parties may agree) following the expiry of the Initial Subscription Period.
“Special Conditions” means individually negotiated variations, amendments and/or additions to these Terms and Conditions or those of an ordering document and are deemed to be included in this Agreement.
“Start Date” in respect of Gepard Platform means the later of (a) the date specified as the date on which access to the Gepard Platform is intended to start and (b) the actual date on which access to that Gepard Platform is given.
“Supplier” means BInTime OÜ (Tartu trade register registration number 12055779).
“Gepard” means software provided by Supplier based on Gepard Platform products and Modules as specified in the SOW.
“Updates” mean any periodic Gepard Platform releases, if any, for purposes of 1) providing minor enhancements and/or improvements, patches, fixes, or the like to the Gepard Platform; or 2) resolving technical issues related to Client’s then-current Version of the Gepard Platform.
“User” means personnel of Client, Client’s Affiliates or contractors authorized by Supplier and Client to use the Gepard Platform as more particularly specified in the applicable ordering document.
“Version” means a new release of the Gepard Platform (outside a point release) that includes a major revision, alteration, improvement, modification, or the like, to the current Gepard Platform release.
2. Gepard Right of use
2.1 Grant
Subject to these Terms and to the payment of applicable Charges Supplier grants Client a worldwide non-exclusive, non-transferable right to use the Gepard Platform, as Software-as-a-Service, (including the version initially made available together with any Updates included in the Subscription Period, but excluding any new Gepard Platform feature or substantial additional functionality for which Supplier, in its sole discretion, generally charges Clients of the Gepard Platform additional services).
2.2 Other Restrictions
Client may not publish, transmit, retransmit, disseminate, broadcast, circulate, sell, resell, loan, lease, distribute or transfer Gepard Platform or copies to third parties, nor reverse engineer, decompile, disassemble or otherwise attempt to discern the source code of the components of the Gepard Platform. Client agrees to notify its employees, Affiliates, contractors and agents who may have access to Gepard Platform of the restrictions contained herein and to ensure their compliance with these restrictions.
2.3 Title
Client hereby acknowledges and agrees that all right, title and interest in and to the Gepard Platform, the Documentation and any other related materials are, and shall remain, vested solely in Supplier, its Affiliates and other Gepard Platform owners, if any, and Client shall not hold itself out as having any ownership or other rights with respect thereto, except as specifically granted hereunder. Except as expressly permitted herein, Client agrees that it shall make no use of the Gepard Platform, the Documentation or any other related materials without Supplier’s prior written consent. Any and all goodwill associated with such rights shall inure directly and exclusively to the benefit of Supplier.
3. CONFIDENTIAL INFORMATION
Client and Supplier understand and agree that in the performance of an Agreement each party may have access to private or confidential information of the other party, including, but not limited to, trade secrets, marketing and business plans and technical information, which is designated as confidential by the disclosing party in writing, whether by letter or by the use of a proprietary stamp or legend, prior to or at the time it is disclosed to the other party (“Confidential Information”). Both parties agree that the terms of this Agreement including without limitation its financial terms such as the Payments and the information contained in reports shall be deemed Confidential Information owned by the other party. Client acknowledges and agrees that the technical and functional specifications and the code and design of the Gepard Interface and all tools and utilities supplied by Supplier to Client are Confidential Information of Supplier. In addition, information that is orally disclosed to the other party shall constitute Confidential Information if within 10 days after such disclosure the disclosing party delivers to the receiving party a written document describing such Confidential Information and referencing the place and date of such oral disclosure and the names of the employees of the party to whom such disclosure was made. Each party agrees that: (i) all Confidential Information shall remain the exclusive property of the owner; (ii) it shall maintain, and shall use prudent methods to cause its employees and agents to maintain, the confidentiality and secrecy of the Confidential Information; (iii) it shall not, and shall use prudent methods to ensure that its employees and agents do not, copy, publish, disclose to others or use (other than pursuant to the terms hereof) the Confidential Information: and (iv) it shall return or destroy all copies of Confidential Information upon request of the other party. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it (i) is or becomes a part of the public domain through no act or omission on the part of the receiving party, (ii) is disclosed to third parties by, the disclosing party without restriction on such third parties, (iii) is in the receiving party’s possession, without actual or constructive knowledge of an obligation of confidentiality with respect thereto, at or prior to the time of disclosure under this Agreement, (iv) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto, (v) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information or (vi) is released from confidential treatment by written consent of the disclosing party.
4. CHARGES
4.1 Calculation of fees
Beginning on the Effective Date, Client shall pay to Supplier the fees (“Payments”) defined in the order within the time frame set in the Agreement.
4.2 Payment term
Invoices will be paid within thirty (30) days of receipt thereof. Supplier can require pre-payment of each term.
4.3 Taxes
All fees are exclusive of VAT and other taxes, fees and similar governmental charges related to the execution or performance of an Agreement, other than applicable income taxes imposed on Supplier related to its receipt of Payments.
4.4 Currency
All amounts are stated in Euro and shall be paid in Euro.
4.5 Interest & Administration
In case that invoices are not paid in time, Supplier can add reasonable administration fees and otherwise an administration fee of 25 EUR per invoice and charge an interest fee of one percent (1%) per month that the fee is overdue.
4.6 Invoicing per email
Invoices will be exclusively sent via the internet (i.e., by email).
5. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
5.1 Warranties
5.1.1 Except as specifically provided in this Agreement, the Gepard Platform is provided “as is” without warranty of any kind, express or implied, including but not limited to warranties of performance, merchantability, fitness for a particular purpose, accuracy, omissions, completeness, currentness and delays. Client agrees that outputs from the Gepard Platform will not, under any circumstances, be considered legal or professional advice and are not meant to replace the experience and sound professional judgment of professional advisors in full knowledge of the circumstances and details of any matter on which advice is sought.

5.1.2 Supplier warrants to Client that it holds itself the necessary rights to grant the rights specified in this Agreement and that it has the authority to enter into this Agreement with Client.
5.2 Exclusion of liability
5.2.1 Neither Supplier, its Affiliates nor any licensors of the foregoing make any warranty that access to any Gepard Platform will be uninterrupted, secure, complete or error-free.

5.2.2 Other than in respect of the warranty given in Clause 5.1.2 and 6.1 Supplier shall not be liable in contract, tort, delict or otherwise for any loss of whatsoever kind howsoever arising suffered in connection with the Gepard Platform.

5.2.3 Without prejudice to the generality of clauses 5.2.1 to 5.2.2, in no event, shall Supplier, its Affiliates be liable to Client for any claim(s) relating in any way to:
(a) Client's inability or failure to perform legal or other research-related work or to perform such legal or other research or related work properly or completely, even if assisted by Supplier, its Affiliates a or any decision made, or action taken by Client in reliance on the Gepard Platform; or (b) any indirect loss, profits (whether direct or indirect) or any consequential, exemplary, incidental, indirect or special damages relating in whole or in part to Clients' rights under this Agreement or use of or inability to use the Gepard Platform even if Suppliers, its Affiliates have been advised of the possibility of such damages.

5.2.4 Other than in respect of the warranty given in Clause 5.1.2 and 6.1 Supplier will have no liability whatsoever for any liability of Client to any third party which might arise.

5.2.6 Client shall accept sole responsibility for and Supplier shall not be liable for the use of the Gepard Platform by Client, or any User and Client shall hold Supplier harmless and fully indemnified against any claims, costs, damages, loss, and liabilities arising out of any such use.

5.2.7 Nothing in this Agreement confers or purports to confer on any third party any benefit or any right to enforce any term of this Agreement.
5.3 Limitation of Liability
5.3.1 Other than in respect of the warranty given in Clause 5.1.2 and 6.1, Client's exclusive remedy and Supplier's, (its Affiliates' and/or licensors of the foregoing entire liability under this Agreement if any, for any claim(s) for damages relating to the Gepard Platform made against them individually or jointly whether based in contract or negligence shall be limited to the aggregate amount of the Charges paid by Client relative to the specific aspect of the Gepard Platform which is the basis of the claim(s) during the 12 month period preceding the event giving rise to such claim.

5.3.2 None of the terms of this Agreement shall operate to: (a) exclude or restrict liability for fraud or for death or personal injury resulting from the negligence of Supplier or its Affiliates or the appointed agents or employees of Supplier or its Affiliates whilst acting in the course of their employment, or (b) affect statutory rights where this Agreement is entered into as a consumer transaction.

5.3.3 Except for claims relating to non-payment of the Charges or improper use of the Gepard Platform, no claim regardless of form which in any way arises out of this Agreement may be made, nor action based upon such claim brought, by either party to this Agreement more than one year after the basis for the claim becomes known to the party desiring to assert it.
5.4 Failures Not Caused by Supplier
Supplier will not be responsible to the extent that the Gepard Platform fails to perform due to one or more of the following: (1) the malfunction of Gepard Platform not provided by Supplier (2) the malfunction of hardware, (3) Client’s negligence or fault, (4) Client’s failure to follow the instructions set forth in the Documentation, (5) material changes in the operating environment not authorised by Supplier, (6) modifications to or changes in the Gepard Platform not made or suggested by Supplier or (7) Client’s failure to implement and maintain a proper and adequate backup and recovery system for the Gepard Platform and associated files. If Supplier discovers that a failure is caused by one of the above, Supplier reserves the right to charge Client for its work in investigating such failure. At Client’s request and at a fee to be agreed upon, Supplier will thereafter assist Client in resolving such failure. It is Client’s responsibility to develop and implement a proper and adequate backup and recovery system.
5.5 Exclusive Remedies
The remedies in clauses 5 (Disclaimer of Warranties and Limitation of Liability), 6 (Infringement Claims), 7 (Term and Termination), 9.4 (Remedies) and 10.3 (Remedies) are Client’s exclusive remedies and are in lieu of all other legal or equitable remedies and all liabilities or obligations on the part of Supplier for damages (except for death and personal injury) arising out of, relating to, or in connection with this Agreement, including, but not limited to, the licensing, delivery, installation, use or performance of the Gepard Platform or the integration of the Gepard Platform with other Gepard Platform or hardware.
6. INFRINGEMENT CLAIMS
6.1 Supplier warrants to Client that no Gepard Platform products to which Client has purchased, nor its features infringe any industrial or intellectual property rights of any third party.

6.2 Client shall promptly inform Supplier once Client becomes aware of:
(a) any unauthorized use of the Gepard Platform; (b) any actual, threatened, or suspected infringement of any intellectual property of Supplier, its Affiliates and/or licensors of the foregoing in the Gepard Platform which comes to Client's notice; and (c) any claim by any third party coming to its notice that the Gepard Platform infringes the intellectual property or other rights of any other person.

6.3 Client shall at the request and expense of Supplier do all such things as may be reasonably required to assist Supplier in taking or resisting proceedings in relation to any infringement or claim referred to in this clause and in maintaining the validity and enforceability of the intellectual property of Supplier, its Affiliates and/or licensors of the foregoing in the Gepard Platform.

6.4 In the event a claim of infringement is made against Supplier or Client with respect to the Gepard Platform, Supplier, for the purpose of settling such claim, may, at its option, in respect of such allegedly infringing Gepard Platform:
(i) substitute fully equivalent non-infringing Gepard Platform; or (ii) modify the Gepard Platform so that it no longer infringes but remains functionally equivalent. If, as a result of such claim, Client or Supplier is permanently enjoined from using the Gepard Platform by a final, non-appealable decree from a court of competent jurisdiction, Supplier will take one or both of the actions set forth in (i) and (ii) above or will obtain for Client at Supplier’s expense the right to continue to use the Gepard Platform.

6.5 Supplier’s obligations to Client pursuant to this clause 6 is contingent upon Supplier being given prompt notice and control of, and detailed information with regard to, any such claim, suit or proceeding. Client shall have the right to participate at its own cost in the defense of any such claim or action through legal counsel of its choosing. Client shall not settle any such claim or action without Supplier’s prior written consent.

6.6 This clause 6 contains Supplier’s entire obligation and the exclusive remedies of Client with regard to any claimed infringement arising out of or based upon the Gepard Platform used by Client.
7. TERM AND TERMINATION
7.1 This Agreement will, once approved by Supplier, commence on the Start Date and shall continue for the Initial Subscription Period and shall then renew for successive Renewal Periods until the end of the final Renewal Period unless earlier termination takes place in accordance with the provisions set out in clause 7.2.

7.2 This Agreement may be terminated by:
7.2.1 either party on written notice to the other if: (a) the other commits a material breach of this Agreement, provided that where the breach is capable of being remedied then the defaulting party shall have failed to remedy the same within 30 days of receiving a notice specifying the breach and requiring its remedy; or (b) the other is adjudicated bankrupt, enters into liquidation or any arrangement or composition with or assignment for the benefit of its creditors or if a trustee or a receiver or administrator or administrative receiver or receiver and manager is appointed against the whole or any part of its assets or business; or

7.2.2 either party on receipt of written notice by the other of not less than 90 days prior to, but not taking effect until, the expiry of the Initial Subscription Period or current Renewal Period; or

7.2.3 Supplier, with immediate effect, if any organization , which Supplier acting reasonably determines to be a Competitor of Supplier acquires Control of Client.

7.3 If at any time Supplier for any reason decides to cease general provision of the Gepard Platform, Supplier may, on providing not less than ninety (90) days’ written notice to Client, cease to provide any further Maintenance Services (see clause 9).

7.4 In the event of KPIs underperformance as set forth in the Statement of Work.

7.5 Upon termination for whatsoever reason, if Client has pre-paid any Charges in respect of Gepard Platform being terminated or cancelled Supplier’s sole liability to Client in respect of such termination shall be to refund the pre-paid Charges in respect of that Gepard Platform for the period following termination to the end of the Term. No such refund shall be required in event of termination for Client’s breach of this Agreement.

7.6 Expiry or termination of this Agreement shall be without prejudice to the accrued rights and obligations of the parties.
8. GENERAL PROVISIONS
8.1 Effect of Agreement
This Agreement (including any applicable ordering document) embodies the entire understanding between the parties with respect to the subject matter of this Agreement and supersedes any and all prior understandings and agreements, oral or written, relating to the subject matter.
8.2 Force Majeure
Supplier shall not be liable for any delay or failure in performing hereunder if caused by factors beyond its reasonable control, such as acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, explosion, power failure, equipment failure, failure of telecommunications or Internet services, industrial or labour dispute, inability to obtain necessary supplies and the like.
8.3 Notices
Except as otherwise provided, all notices and correspondence must be given in writing to Supplier at Kuklase TN 16-12, Mustamae Linnaosa, Tallinn, 13423 or info@gepard.io or such other addresses as may from time to time be notified to Client in writing; and to Client at the address set out in the applicable ordering document unless otherwise notified to Supplier in writing.
8.4 Governing Law and Assignment
The Agreement and License shall be governed by, and construed in accordance with, the laws of Estonia.
8.5. Survival
Clauses 3 (Confidential Information), 5 (Disclaimer of Warranties and Limitation of Liability), and 8 (General Provisions) shall survive any termination or expiry of this Agreement.
9. MAINTENANCE & SUPPORT TERMS
9.1 Maintenance & Support Services
Maintenance & Support Services consist of the following:

9.1.1 Updates Supplier may provide Updates to and/or new Versions for the Gepard Platform to Client which are accessible to Client free of charge having a valid Maintenance & Support subscription on basis of SaaS approach. Development costs related to Client`s own application(s) and add-ons shall not to be included in the Charges as Support hours and is a subject of a surcharge.

9.1.2 Support contacts. Supplier will provide telephone support for purposes of handling Client questions relating to the operation of the Gepard Platform. Support is provided by Supplier’s Project manager or Account executive or support@gepard.io.

9.1.3 Software defects and fixes shall be remedied within the agreed SLA agreement.
9.2 Supplier’s Obligations
9.2.1 Supplier’s obligations hereunder will extend only to (a) the Updates and Versions of the Gepard Platform provided to Client by Supplier, and (b) Gepard Platform that has not been modified or altered in any way by anyone other than Supplier.

9.2.2 Maintenance Services will not include services for the items for which Supplier is not responsible set forth in clause 5.4 of this Agreement.
9.3 Client Obligations
9.3.1 Client shall ensure that Supplier’s personnel are provided with such information under Client’s control as is reasonably necessary to enable Supplier to comply with its obligations hereunder.

9.3.2 Updates and New Versions In the event that Supplier determines that any of Client’s reported maintenance problems cannot be resolved due to Client’s failure to install Updates or procure new Versions of the Gepard Platform, Client will be given a reasonable opportunity to install such Updates or procure a new Version. If, after such opportunity, Client fails or otherwise refuses to install such Updates or procure such new Version, Supplier shall be relieved of its obligations under this clause 9.
9.4 Remedies
Client’s sole remedy for Supplier’s material breach of its obligations under this clause 9 will be to have Supplier re-perform the defective services so that they conform to the specifications provided herein.
10. TRAINING SERVICES
10.1 Training
Training is offered via a range of methods including skype, face to face and telephone sessions. Client should contact Supplier to arrange mutually agreeable methods, dates times, and possible costs.
10.2 Remedies
Client’s sole remedy for Supplier’s material breach of its obligations under this clause 10 will be to have Supplier re-perform the defective services so that they conform to the specifications provided herein.