General Terms and Conditions -CDD, AML and Compliance Management Tool

General Terms and Conditions applicable to Pay-As-You-Go Modules

1. Definitions

1.1. Capitalised words shall bear the following meanings:

Affiliates	means in relation to a Party, any entity that directly or indirectly Controls, is Controlled by, or is under common control with that Party from time to time;
Agreement	means these General Terms and Conditions together with the Pay-As-You-Go Module Specific Terms and Conditions;
Business Days	means the hours of 9:00am to 6:00pm CET, Monday to Friday, excluding public holidays, in Malta and “Business Hours” shall be interpreted accordingly;
Claim	means any allegation, claim, demand, debt, damage, fee, expense, cause of action, liability, loss, proceeding or action of any nature whether present, future, fixed or unascertainable, actual, or contingent, whether at law, in equity, under statute, or otherwise;
Confidential Information	means ‘Confidential Information’ as defined in clause 3.1;
Control	in relation to a body corporate (“company A”), “control” means the power of a person (“P”) to secure: a) by means of the holding of shares or the possession of voting power in relation to that or any other body corporate, or b) as a result of any powers conferred by the articles of association or other document regulating that or any other body corporate, that the affairs of company A are conducted in accordance with P's wishes. In relation to a partnership, “control” means the right to a share of more than half the assets, or of more than half the income, of the partnership.
Customer	means the Customer as defined in the KYCP Licensing Agreement and where such KYCP Licensing Agreement permits, any sub-licensees of the Customer;
Disclosing Party	means the Party disclosing the Confidential Information;
Finopz	means Finopz Ltd, a private limited liability company incorporated in England and Wales with company registration number 11473895;
Intellectual Property	means all copyrights, trademarks, service marks, rights in or to processes, know-how, show-how, methods, trade secrets, designs, patents, moral rights (where applicable) and other rights in the nature of intellectual property rights (whether registered or not) in any part of the world;
KYCP Licensing Agreement	means the KYCP licensing agreement entered into between the Customer and the Licensor or Finopz, as applicable;
KYCP Portal	means the online portal that pertains to the Customer for such time that the KYCP Licensing Agreement is in force;
Licensor	means Aqubix Limited, a private limited liability company incorporated in Malta with company registration number C44882;
Parties	means collectively the Licensor and the Customer;
Party	means either the Licensor or the Customer;
Pay-As-You-Go Credits	means the money deposited in the KYCP Portal for the Customer to be able to use the Pay-As-You-Go Modules;
Pay-As-You-Go Module / Module	means any Pay-As-You-Go Module as defined in the Term Sheet of any Pay-As-You-Go Module Specific Terms and Conditions;
Pay-As-You-Go Module Specific Terms and Conditions	means the terms and conditions governing the use of the Pay-As-You-Go Module which terms and conditions the Customer must accept prior to using the Pay-As-You-Go Module; and
Receiving Party	means the Party receiving the Confidential Information.

1.2. Capitalised words not defined above shall bear the meanings set out the applicable Pay-As-You-Go Module Specific Terms and Conditions.

2. Use of Pay-As-You-Go Module

2.1. The Pay-As-You-Go Modules shall only be used in accordance with these General Terms and Conditions and the relevant Pay-As-You-Go Module Specific Terms and Conditions.

2.2. The Customer shall not, and shall ensure that any other person shall not, directly or indirectly:

(a) reverse engineer, decompile, disassemble or otherwise attempt to discover the modules, components and scripts, source code or underlying ideas or algorithms of the Pay-As-You-Go Modules or any Licensor or third party software embedded in, connected to or incorporated in the Pay-As-You-Go Modules;

(b) modify, translate, or create derivative works based on the Pay-As-You-Go Modules;

(c) rent, lease, lend, distribute, sell, resell, assign, host or otherwise transfer rights to the Pay-As-You-Go Module in whole or in part;

(d) use the Pay-As-You-Go Module for timesharing, application service provider, or service bureau purposes or to provide time sharing, facility management, or data processing or otherwise for the benefit of third parties;

(e) publish or disclose to third parties any evaluation of the Pay-As-You-Go Module without the Licensor’s prior written consent;

(f) create any link to the Pay-As-You-Go Module or frame or mirror any content contained on, or accessible from, the Pay-As-You-Go Module;

(g) otherwise replicate or seek to replicate the functionality or look and feel of the Pay-As-You-Go Module;

(h) install or use non-Licensor software or technology which would subject Licensor or its intellectual property or technology to any other licence terms;

(i) work around any technical limitations in the Pay-As-You-Go Module and/or any restrictions set out in this Agreement;

(j) copy, modify, remove, alter, cover or obfuscate any copyright notices or other proprietary rights’ notices placed or embedded on or in any part of the Pay-As-You-Go Module; and/or

(k) use all or any of the Pay-As-You-Go Module, part thereof or any data derived from the Pay-As-You-Go Module or its use to train, improve or test (directly or indirectly, and either by itself or through a third party) any machine learning or artificial intelligence technology or process. Customer shall be responsible for promptly notifying Licensor of such violations as they come to the Customer’s attention.

2.3. Customer acknowledges that Licensor or its Affiliates and/or its or their respective licensors, if any, own and retain all proprietary right, title and interest in and to the Pay-As-You-Go Module and any technical documentation or other materials related to the Pay-As-You-Go Module (collectively “Documentation and Materials”), including, without limitation, any and all copyrights, patents, trademarks, trade names and other intellectual property rights embodied in or used in connection with the Documentation and Materials and including, without limitation, any modifications, enhancements, translations, localizations, or other derivative works thereof, whether made by Licensor or by Customer.

2.4. Customer agrees that it will not, at any time during or after the expiration or termination of this Agreement for any reason, assert or claim any interest in or do anything that may adversely affect the validity or enforceability of any copyright, patent, trademark, trade name, logo or other proprietary right, title or interest belonging to or licensed to Licensor and/or its Affiliates including, without limitation, any act, or assistance to any act, which may infringe or lead to the infringement of any patent, copyright or other intellectual property right in the Pay-As-You-Go Module and/or the Documentation and Materials.

2.5. Customer is granted only those limited rights in the Pay-As-You-Go Module, and the published Documentation and Materials accompanying the Pay-As-You-Go Module, as expressly set forth in this Agreement.

2.6. Customer agrees to take all additional or further steps required to grant and give full effect to such ownership, including by execution of any documents or instruments.

2.7 While Customer is not required to do so, Customer may from time to time provide feedback to the Licensor with regard to the functionality and performance of the Pay-As-You-Go Module, including, without limitation, identifying potential errors and improvements (“Feedback”). Feedback provided by Customer may be used by Licensor and disclosed to its Affiliates and licensors to improve or enhance the Pay-As-You-Go Module, and Customer hereby grants to Licensor and any of the Licensor’s Affiliates and licensors a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, modify, make, have made, distribute, sell, offer for sale, display, perform, create derivative works, permit distribution and otherwise exploit such Feedback without restriction.

3. Confidentiality Obligations

3.1. The Parties agree that “Confidential Information” means:

(a) any information, technical data, or know-how (including, but not limited to, information relating to research, products, software, services, development, inventions, processes, engineering, marketing, techniques, customers, pricing, internal procedures, business and marketing plans or strategies, finances, employees and business opportunities) which, if disclosed in written format, is marked as “Confidential” or “Proprietary” and, if disclosed orally, summarized in written format within ten (10) days of disclosure, marked as “Confidential” and provided to the Receiving Party;

(b) that a reasonable person, based on the type of information disclosed or the circumstances surrounding its disclosure, would recognize as confidential, trade secret or proprietary information of the Disclosing Party; and/or

(c) is a software program or related documentation, including all source and/or object code, and all parts and aspects thereof, that is the property of the Disclosing Party, in whatever form and whether or not marked as “Confidential”.

For the avoidance of doubt, Feedback shall not be considered to be Confidential Information.

3.2. Notwithstanding clause 3.1 above, the term “Confidential Information” shall not include information that the Receiving Party can establish:

(a) was, or has subsequently become, part of the public domain through no fault of the Receiving Party;

(b) was known by the Receiving Party prior to disclosure hereunder and for which the Receiving Party was under no prior confidentiality obligation;

(c) was received by the Receiving Party from a third party who is under no obligation of confidentiality with respect to such information; or

(d) was developed by the Receiving Party independently without benefit of, or based on, the disclosures made hereunder.

3.3. The Parties agree that all Confidential Information shall:

(a) unless required to be disclosed by the Receiving Party by law, regulation or order of a court of competent jurisdiction or otherwise expressly permitted under this Agreement, not be copied or distributed, disclosed or disseminated in any way or form by the Receiving Party to anyone except its own employees, consultants and professional advisors (and in the case of the Licensor, its licensors, subcontractors, Affiliates and suppliers) who have a reasonable need to know the Confidential Information and who agree to keep the material confidential;

(b) be treated by the Receiving Party with the same degree of care to avoid unauthorised disclosure to any third party as is used with respect to the Receiving Party’s own information of like importance which is to be kept secret, but with no less than reasonable care;

(c) not be used by the Receiving Party for its own purposes or for any other purpose except in performance of this Agreement; and

(d) remain the sole property of the Disclosing Party (or, if applicable, of such Party’s Affiliates) or their respective licensors (if any) and be returned to the Disclosing Party (along with all copies thereof) within thirty (30) days of the Receiving Party’s receipt of a written request from the Disclosing Party setting forth the Confidential Information to be returned or immediately upon expiration or earlier termination of this Agreement.

3.4. Each Party acknowledges that in the event of a breach or threat of breach by a Receiving Party of this clause, money damages will not be adequate. Therefore, in addition to any other legal or equitable remedies, the Disclosing Party shall be entitled to seek injunctions or similar equitable relief against such breach or threat of breach.

4. Automatic Renewal: This Agreement shall automatically renew concurrently with any renewal of the KYCP Licensing Agreement, unless:

4.1. The Licensor provides the Customer with written notice that the Licensor chooses to or is required to cease providing the Pay-As-You-Go Module or is otherwise prevented from providing the Pay-As-You-Go Module. In such a case, the Licensor shall provide the Customer with such written notice at least thirty (30) days prior to the cessation of the Pay-As-You-Go Module; or

4.2. The Customer provides the Licensor with prior written notice that the Customer does not wish to renew this Agreement in whole or in part with respect to a particular Pay-As-You-Go Module; or

4.3. The Customer has not: (i) paid any Pay-As-You-Go Credits into the KYCP Portal or (ii) used any Pay-As-You-Go Credits in the KYCP Portal for a period of six (6) consecutive months; or

4.4. Any termination rights are exercised by either Party in accordance with this Agreement.

5. Automatic Termination: In addition and without prejudice to any termination rights set out in this Agreement, this Agreement shall automatically terminate on expiration or termination of the KYCP Licensing Agreement for any reason or on the date on which the Licence and Support Services provided under the KYCP Agreement cease, whichever is the earlier, without either Party needing to provide notice of termination of this Agreement to the other Party.

6. Consequences of Termination:

6.1. Upon expiration or termination of this Agreement:

(a) All remaining Pay-As-You-Go Credits shall not be refunded, unless the Agreement is terminated in terms of clause 4.1 or clause 13.1(g) of this Agreement;

(b) each Party shall immediately return to the other all Confidential Information in its possession, custody or control in whichever form held (including all copies or embodiments thereof) in accordance with clause 3.3(d); and

(c) Each Party shall immediately cease all use of all the other Party’s and its Affiliates’ trademarks, logos and/or trade names, and will not use any mark or name that is confusingly similar to any trade name of the other Party or any of its Affiliates or any product name, trademark or service mark associated with any products owned or licensed by a Party to the other or to any of its Affiliates, or associated with any services delivered by a Party or any of its Affiliates, including, without limitation, any product name, trademark or service mark associated with the Modules or any Module-related services.

7. Fees:

7.1. In order to make use of the Pay-As-You-Go Modules, the Customer is required to top-up its KYCP Portal with Pay-As-You-Go Credits by raising a ticket on their respective JIRA board requesting the amount of credits they wish to purchase. Licensor will then raise the invoice.

7.2. Invoices shall be settled by the Customer within thirty (30) days of issuance by the Licensor.

7.3. The Licensor reserves the right to refuse any of the Customer’s requests for the issuance of invoices for credits in the event that the Customer has any unpaid invoices pertaining to the Customer’s use of the Pay-As-You-Go Modules and/or the KYCP Agreement.

7.4. All Pay-As-You-Go Credits shall be exclusive of VAT. Pay-As-You-Go Credits shall only be used within the KYCP Portal for the purpose of using the Pay-As-You-Go Modules.

7.5. Invoices shall be issued in the currency requested by the Customer and accepted by Aqubix. The Customer acknowledges and accepts that the Pay-As-You-Go Credits required in order to use Pay-As-You-Go Modules may be in a currency that is different to the currency paid by the Customer and the Licensor shall determine the appropriate exchange rate.

7.6. The Licensor may impose a top-up limit on the amount of topped up Pay-As-You-Go Credits the Customer may have in its KYCP Portal at any particular point in time. Should the Customer exceed this limit, the Customer will not be able to top-up until the Pay-As-You-Go Credits have been reduced to this meet the limit or less.

7.7. The chargeable usage made through the Customer’s use of the Pay-As-You-Go Modules will be automatically deducted from the amount of Pay-As-You-Credits in the KYCP Portal. The Customer shall be unable to use any Pay-As-You-Go Modules unless the Customer’s KYCP Portal contains sufficient Pay-As-You-Go Credits for the services being requested.

7.8. If the Customer’s Pay-As-You-Go Credits are inactive for a period of six (6) consecutive months from the last top-up or chargeable activity, this Agreement will be deemed to be terminated and all remaining topped up Pay-As-You-Go Credit will not be refunded to Customer.

7.9. The amount of Pay-As-You-Go Credits required for each Pay-As-You-Go Module is subject to change. In the event of any changes to the credits required as set out in Pay-As-You-Go Module Specific Terms and Conditions, the Customer shall be informed prior to their implementation.

7.10. Pay-As-You-Go Credit values are subject to change. In the event of any changes to the credits as set out in Pay-As-You-Go Module Specific Terms and Conditions, the Customer shall be requested to accept such changes prior to their implementation. Should the Customer elect not to accept such changes, the Customer shall not use their Pay-As-You-Go Credits for the relevant Pay-As-You-Go Module.

8. Pay-As-You-Go Module Availability & Acceptance:

8.1. The Customer acknowledges that the Pay-As-You-Go Module is not fault-tolerant nor is it free from errors, conflicts or interruptions and that errors may be identified. The Customer therefore accepts the responsibility of determining that the Pay-As-You-Go Module is suitable in terms of functional fitness, quality and performance for use on the systems on which it may be accessed and used and for the purposes for which it has been purchased and configured. This includes conducting sufficient functional and performance testing of software on systems on which it may be used and accessed and providing any necessary notices or warnings to the Customers’ users.

8.2. The Customer understands and accepts that the Pay-As-You-Go Module’s availability is dependent on third parties through which the Licensor offers the Pay-As-You-Go Module to the Customer. The Licensor shall not be held liable for any unavailability of the Pay-As-You-Go Module that is not attributable to the Licensor.

8.3. Neither Licensor, its Affiliates, its licensors nor their respective suppliers make any warranties or representations as to the performance of the Pay-As-You-Go Module or services to Customer or any other person or entity. Without limiting the broad application of the foregoing, all warranties are hereby disclaimed and to the extent permitted by applicable law, all implied warranties and conditions, including but not limited to implied warranties or conditions of merchantability, fitness for a particular purpose and non-infringement are hereby excluded.

9. Liability:

9.1. Subject to clause 9.4 and without prejudice to clauses 9.2 and 9.4, in no event shall either Party be liable for any loss of use, loss of opportunity, loss of data, loss of profits, loss of business or any other special, indirect, consequential, incidental, and/or punitive damages arising out of or in connection with this Agreement or the performance of the Pay-As-You-Go Modules or performance of services provided hereunder or otherwise related to the Pay-As-You-Go Modules or of any other obligations relating to the Pay-As-You-Go Modules, even if a Party, its Affiliates, its licensors, or any of their respective suppliers have been advised of the possibility of such damages and notwithstanding the failure of any essential purpose.

9.2. Subject to clause 9.4 and without prejudice to clause 9.1 and 9.4, Licensor shall not be liable to the Customer for any loss or damage caused by:

(a) a distributed denial-of-service attack, viruses or other technologically harmful material that may harm the Customer’s computer equipment, computer programs, data or other proprietary material due to Customer’s use of the Pay-As-You-Go Module or due to it downloading any material posted on the Pay-As-You-Go Module or on any website linked to it; and/or

(b) any unavailability, bug, defect, default, error and/or other issue arising out of or connected to the Pay-As-You-Go Module, including any loss of Customer’s data or breach of security of the platform, where such unavailability, defect, default, error and/or other issue is not attributable to the Licensor; and/or

(d) any loss or damage incurred by the Customer in relation to a security incident affecting Licensor’s servers.

9.3. Subject to clauses 9.1, 9.2 and 9.4, the liability of a Party towards the other Party (the “Indemnified Party”) for direct damages incurred by the Indemnified Party arising out of or connected to this Agreement (whether arising under contract, tort, strict liability, breach of warranty or otherwise) shall be limited to the total fees paid by the Customer to the Licensor for the use of the specific Pay-As-You-Go Module forming the subject matter of the claim during the twelve (12) months immediately preceding the claim.

9.4. Nothing in this Agreement shall limit or exclude the liability of either Party for:

(a) The indemnities set out in this Agreement or any loss or damage incurred by the Licensor related to intellectual property rights;

(b) death or personal injury caused by its negligence, or that of its employees, agents or sub-contractors;

(d) any act, omission, matter or liability for which may not be excluded or limited by law.

9.5. In addition to what is stated elsewhere in this Agreement, the Licensor may from time to time, at the request of the Customer and at no additional charge, provide advice and assistance to the Customer on issues relating to compliance and anti-money laundering. For the absolute avoidance of doubt, the Customer acknowledges that any advice and assistance provided by the Licensor and any of its personnel is provided purely on an as-is basis, without any warranty of any kind or nature, and while the advice and assistance are provided in good faith and efforts are made by the Licensor to provide correct advice and assistance, the Licensor and its personnel shall have no liability for any advice and assistance so provided or the consequences thereof and the Customer acknowledges and agrees that if it chooses to make reliance on any such advice and assistance, this shall be made at the Customer’s own risk.

10. Licensor Indemnity:

10.1 If the Pay-As-You-Go Module or the operation thereof becomes, or in Licensor’s or the ultimate licensors’ opinion is likely to become, the subject of a third party claim of infringement of intellectual property which in the Licensor’s opinion will lead to or is likely to lead to the Customer being prevented from using the Pay-As-You-Go Module as per the terms of this Agreement (an “IP Claim”), the Licensor shall, subject to clause 10.2 and provided that the Customer complies with clause 10.3 below:

(a) procure for Customer the right to continue to use the Pay-As-You-Go Module pursuant to this Agreement; or

(b) replace or modify the Pay-As-You-Go Module to make it non-infringing; or

(c) terminate the Pay-As-You-Go Module Specific Terms and Conditions and Customer's right to use the Pay-As-You-Go Module by providing the Customer with seven (7) days prior written notice.

The Customer acknowledges and accepts that the foregoing shall constitute the Customer’s sole and exclusive remedy of Licensor with respect to any infringement or alleged infringement of any intellectual property rights or proprietary rights with respect to the Module or the use thereof.

10.2. The Licensor shall have no liability or obligation to the Customer for any IP Claim in terms of clause 10.1 above if the IP Claim is based upon or connected to:

(a) any use of the Pay-As-You-Go Module not in accordance with this Agreement or for purposes not intended by the Licensor; and/or

(b) any modification of the Pay-As-You-Go Module made by any person other than the Licensor where such modification is not authorised by the Licensor; and/or

(c) the combination, operation or use of the Pay-As-You-Go Module with equipment, data or software not supplied by Licensor (other than as approved by Licensor), or arising from any alteration or modification of a Pay-As-You-Go Module by anyone other than the Licensor, except where the cause giving rise to the IP Claim can be directly and solely attributable to the Module; and/or

(d) the Customer’s negligent use of the Pay-As-You-Go Module.

10.3. If the Customer becomes aware of an IP Claim, the Customer shall immediately provide the Licensor with written notice of the IP Claim specifying the nature of the claim in reasonable detail. Furthermore, the Customer shall:

(a) not make any admission of liability, agreement or compromise in relation to the IP Claim without the prior written consent of the Licensor;

(b) give the Licensor and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable the Licensor and its professional advisers to examine them and to take copies for the purpose of assessing the IP Claim; and

11. Customer Indemnity

11.1. The Customer agrees to defend, indemnify and hold the Licensor, its parents, subsidiaries, officers, directors, employees, successors, Affiliates, licensors and assigns (the “Licensor Indemnified Parties”) harmless from any claim, demand, damages, costs and expenses (including reasonable legal fees), incurred by the Licensor Indemnified Parties relating to, deriving, arising or resulting from third party claims instituted against any of the Licensor Indemnified Parties in connection with, due to or arising out of:

(a) the Customer’s breach of this Agreement and/ or any of its representations or undertakings made pursuant to this Agreement;

(b) the Customer’s willful misconduct or negligent acts, omissions or misrepresentations;

(c) any use of the Pay-As-You-Go Module by the Customer, its affiliates, employees, agents, successors and assigns other than in accordance with this Agreement; and/or

(d) any unauthorised modification of the Pay-As-You-Go Module by the Customer, its affiliates, employees, agents, successors and assigns, including any claims for intellectual property infringement arising therefrom.

12. Representations and Warranties:

12.1. Each Party warrants and represents that, as at the date of this Agreement:

(a) it has full capacity and authority to enter into and to perform this Agreement;

(b) this Agreement is executed by a duly authorized representative of that Party;

(d) it shall comply with its obligations in terms of this Agreement and at law; and

(e) it is not a party to any contract or agreement preventing it from entering into this Agreement and carrying out its obligations herein.

13. Compliance with EU Regulation 2022/2554/EU (“DORA”):

13.1. To the extent that the Customer is a financial entity as defined in article 2(2) DORA:

a) the Parties agree that the services provided to the Customer in terms of this Agreement do not constitute a service supporting a critical or important function for the purpose of Chapter V of DORA.

(b) the Licensor confirms that the locations where the services are to be provided and where the data is to be processed are Malta and England. The Licensor shall notify the Customer at least ten (10) days in advance of any envisaged change in location.

(c) the Licensor shall assist the Customer in accessing, recovering and returning, in an easily accessible format personal and non-personal data pertaining to the Customer in the event of the insolvency, resolution or discontinuation of the business operations of the Licensor, or in the event of the termination of this Agreement;

(d) the Licensor shall provide assistance to the Customer at a cost that is commensurate to the fees incurred by the Licensor when an ICT incident that is related to the Module provided to the Customer occurs;

(e) the Licensor shall fully cooperate with the competent authorities and the resolution authorities of the Customer, including persons appointed by them;

(f) the Licensor shall, on reasonable notice being provided by the Customer, participate in the Customer’s ICT security awareness programmes and digital operational resilience training in accordance with Article 13(6) DORA;

(g) the Customer shall be entitled to terminate this Agreement by providing the Licensor with no less than twenty (20) days prior written notice in the following circumstances:

i. significant breach by the Licensor of applicable laws, regulations or contractual terms and where breach is remediable, the breach not being remedied within twenty (20) days from notification by Customer;

ii. circumstances identified throughout the monitoring of ICT third-party risk that are deemed capable of altering the performance of the functions provided through this Agreement, including material changes that affect the arrangement or the situation of the Licensor;

iii. the Licensor’s evidenced weaknesses pertaining to its overall ICT risk management and in particular in the way it ensures the availability, authenticity, integrity and, confidentiality, of data, whether personal or otherwise sensitive data, or non-personal data; or

iv. where the competent authority can no longer effectively supervise the Customer as a result of the conditions of, or circumstances related to, this Agreement.

14. Further Assurances: Each Party agrees to do all things and execute all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to the provisions of this Agreement.

15. Entire Agreement: This Agreement contains the entire agreement between the Parties with respect to its subject matter, and supersedes any and all prior written or oral proposals, representations, understandings or agreements between the Parties relating to the same. Neither of the Parties has relied on or is relying on any other representation not expressly contained herein in entering into this Agreement.

16. Priority:

16.1. In the event of any conflict between the subject matter of these General Terms and Conditions and the Pay-As-You-Go Module Specific Terms and Conditions, the following order of priority shall apply:

(a) The Pay-As-You-Go Module Specific Terms and Conditions; and

(b) The General Terms and Conditions.

16.2. The Data Processing Agreement shall prevail in respect of any matter (including claims and liabilities) pertaining to the processing of personal data by the Licensor in its capacity as the Customer’s processor.

17. Amendments: Except for any updates contemplated by the Pay-As-You-Go Module Specific Terms and Conditions, including updates to policies and documentation referred to therein, this Agreement shall only be amended by another written agreement executed by all the Parties.

18. No Waivers: No failure to exercise or delay in exercising any right, power or remedy under this Agreement operates as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting that waiver unless made in writing.

19. Severability: If any provision or part-provision of this Agreement 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 this Agreement. If any provision or part-provision of this Agreement is deemed deleted under this clause, 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.

20. Acceptance: This Agreement is accepted by the Customer when clicking the ‘The Terms and Conditions are hereby accepted’ button in the Customer’s KYC Portal. The individual accepting this Agreement on behalf of the Customer represents and warrants that he or she has been duly authorised to do so.

21. Survival: Any provision of this Agreement that expressly or by implication is intended to come into force on or after expiry or termination of this Agreement shall remain in full force and effect.

22. Choice of Language: The English language version of this Agreement shall be the official text hereof, despite any translations or interpretations of this Agreement in other languages.

23. Notices: Any notice required to be given by either Party to the other shall be deemed given on the date sent by e-mail to the other Party, provided that it is sent to the email address specified by the other Party for notifications. Both Parties agree to keep each other promptly updated regarding each Party’s correct and current email address.

24. Remedies cumulative: The rights, powers and remedies provided to a Party in this Agreement are in addition to, and do not exclude or limit, any right, power or remedy provided by law or equity or any agreement.

25. Force Majeure. The Licensor shall not be liable for any loss or damage which may be incurred by the Customer as a result of any delay or failure in performance of its obligations under this Agreement or interruption of service resulting directly or indirectly from acts of God, civil commotion, war, strikes, labour disputes, third party Internet service interruptions or slowdowns, vandalism or "hacker" attacks, acts of terrorism or governmental demands or requirements or any causes beyond the reasonable control of the Licensor. Should any of the aforementioned events continue for a consecutive period of three (3) months, the affected Party may terminate this Agreement with immediate effect by providing prior written notice to the other Party.

26. Relationship of the Parties: Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party. Each Party confirms it is acting on its own behalf and not for the benefit of any other person.

27. Interpretation: This Agreement shall not be interpreted to the disadvantage of either Party merely because it was prepared by that Party or by its legal advisors. The headings used herein are for reference and convenience only and shall not be considered substantive parts of this Agreement and shall not enter into the interpretation hereof.

28. Assignment:

28.1. This Agreement shall be binding on and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns. The Customer may not assign this Agreement without (i) also assigning the KYCP Licensing Agreement and (ii) obtaining the Licensor’s prior written consent. Without prejudice to the aforesaid, the Customer may assign this Agreement without the consent of, but upon prior written notice to the Licensor, to any successor in interest by operation of law or pursuant to a merger, corporate reorganization, or sale of all or substantially all of the Customer’s assets or controlling interest provided it does not involve a direct competitor of Licensor and/or the Licensor’s licensors and provided that the KYCP Licensing Agreement is also assigned. Any prohibited assignment shall be null and void.

28.2. The Licensor may assign this Agreement to any third party, parent, subsidiary or affiliate or to any successor to its business without notice to Customer and without obtaining Customer’s consent.

29. Subcontracting: The Licensor may subcontract any or all of its obligations hereunder. If the Licensor wishes to subcontract its performance of this Agreement (in whole or in part) to any other entity the Licensor shall give Customer written notice prior to subcontracting its obligations under this Agreement describing which entity it is subcontracting to and what obligations it will be subcontracting. Where the Customer does not consent to the subcontracting of Aqubix’s obligations under this clause, the Licensor may, acting reasonably, either maintain the infrastructure for the Customer or terminate this Agreement with effect from the date of the subcontractor’s appointment without penalty.

30. Data Protection: The Parties shall each ensure compliance with their respective obligations under all applicable data protection laws including but not limited to the Data Protection Act (Chapter 586 of the Laws of Malta) and the General Data Protection Regulation (2016/679/EU) in their capacity as individual and separate data controllers. Any information notices, consents or other applicable requirements that may be required to be fulfilled for the processing of personal data in terms of this Agreement shall be carried out by each of the Parties. Without prejudice to the aforesaid, the Licensor and its licensors may be required to process personal data on behalf of the Customer for the purpose of the Customer’s use of the Pay-As-You-Go Module. Where this is the case, the Licensor’s Data Processing Agreement shall apply.

31. Governing law: This Agreement (and any dispute, controversy, proceedings or claims of whatever nature arising out of in any way relating to this Agreement or its formation) shall be governed by and construed in accordance with the laws of Malta.

32. Dispute Resolution:

32.1. Without prejudice to either Parties’ rights or remedies hereunder the Parties hereto agree to use all reasonable efforts in good faith to resolve any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination of invalidity hereof (“Dispute”). If the Dispute is resolved by the Parties within fourteen (14) Business Days after one Party provides notice to the other Party of such Dispute ("Dispute Notice") together with any relevant supporting documentation, the agreement and/or settlement shall be recorded in writing and signed by each of the Parties within seven (7) days of the expiration of the fourteen (14) Business Day period.

32.2. In the event that such Dispute is not resolved on an informal basis within fourteen (14) Business Days after one Party provides a Dispute Notice, either Party may, by written notice to the other Party refer the matter to an arbitral tribunal composed of three (3) arbitrators. Each Party shall appoint an arbitrator and the third arbitrator shall be selected by mutual agreement of the appointed arbitrators. Nothing in this clause shall be construed to:

(a) prevent either Party from seeking a temporary restraining order or injunctive or other equitable relief with respect to a breach (or attempted breach) of this Agreement by the other Party; or

(b) prevent a Party from instituting litigation or other formal proceedings to the extent necessary to: (i) avoid the expiration of any applicable limitations period; and/or (ii) to preserve a superior position with respect to other creditors.

32.3. Arbitration shall be held in Malta. The arbitral award shall, without prejudice to the residual jurisdiction of the Courts of Malta, be final and binding on both Parties.

Malta:	+356 2141 1400
UK:	+44 (0) 114 392 0015