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Talexio Software as a Service (SaaS) Terms and Conditions

These Terms and Conditions regulate the services and/or software (as further defined in these Terms and Conditions) that you (hereinafter the “Customer”) procure and obtain from Talexio Ltd (hereinafter “Talexio”).

By clicking ‘I Agree’, or otherwise using the services and/or software, the Customer is agreeing to be bound by these Terms and Conditions as well as the respective Service Schedules reflecting the services and/or software packages being procured by the Customer and which Service Schedules might contain additional terms and conditions specifically relating to the service being obtained.

Background

Talexio has developed certain software applications and platforms which it makes available (either separately or collectively) to subscribers via the internet. The Customer wishes to use the Talexio services and/or software in its business operations. Talexio has agreed to provide and the Customer has agreed to take and pay for Talexio's services and/or software subject to these Terms and Conditions and the respective Schedules.

1. Definitions and Interpretation

2. User Subscriptions

3. Additional User Subscriptions

4. Services

5. Data Protection

6. Third Party Providers

7. Talexio’s obligations

8. Customer Obligations

9. Charges and Payment

10. Proprietary Rights

11. Confidentiality

12. Indemnity

13. Limitation of Liability

14 Term and Termination

19 Rights and remedies

20 Severance

21 Entire Agreement

22 Assignment

23 No partnership or agency

Data Processing Agreement

1. Definitions and Interpretation

1.1 The applicable definitions to these Terms and Conditions are found at the end of these Terms & Conditions.

2. User Subscriptions

2.1 Subject to the Customer purchasing the Subscriptions in accordance with Clauses 3.3 and 9.1, the restrictions set out in this Clause 2 and the other sections of these Terms and Conditions, Talexio hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sublicenses, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer's internal business operations.

2.2 In relation to the Authorised Users, the Customer undertakes that:

the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of Subscriptions it has purchased from time to time from Talexio;
it will not allow or suffer any Subscription to be used by more than one (1) individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
each Authorised User shall change any default password on first accessing the Services and keep a secure password for their use of the Services and Documentation, that such password shall be changed no less frequently than every twelve (12) months or after a security incident and that each Authorised User shall keep their password confidential and generally follow the requirements contained in the Security Policy Schedule;
it shall maintain a written, up to date list of current Authorised Users and provide such list to Talexio within five (5) Business Days of Talexio’s written request at any time or times;.
it shall permit Talexio or Talexio’s designated auditor to audit the Services in order to establish the name and password of each Authorised User and the Customer's data processing facilities to audit compliance with these Terms and Conditions. Each such audit may be conducted no more than once per year, at Talexio’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;
if any of the audits referred to in Clause 2.2(e) reveal that any password and/or account has been provided to any individual who is not an Authorised User, then without prejudice to Talexio’s other rights, the Customer shall promptly disable such passwords and/or accounts and Talexio shall not issue any new passwords and/or accounts to any such individual; and
if any of the audits referred to in Clause 2.2 (e) reveal that the Customer has underpaid Subscription Fees to Talexio, then without prejudice to Talexio’s other rights, the Customer shall pay to Talexio an amount equal to such underpayment as calculated in accordance with the prices set out in Order Form within thirty (30) Business Days of the date of the relevant audit upon the issuance of a revised invoice by Talexio to the Customer.

2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
facilitates illegal activity;
depicts sexually explicit images;
promotes unlawful violence;
is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
is otherwise illegal or causes damage or injury to any person or property;

and Talexio reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.

2.4 The Customer shall not:

except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under these Terms and Conditions and the respective Service Schedules: (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Service and/or Documentation (as applicable) in any form or media or by any means; or (ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or the Services; or
access all or any part of the Software and/or Services and Documentation in order to build a product or service which competes with the Software and/or Services and/or the Documentation; or
use the Software and/or Services and/or Documentation to provide services to third parties (unless otherwise agreed with Talexio as per these Terms and Conditions); or
subject to Clause 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software and/or Services and/or Documentation available to any third party except the Authorised Users, or
attempt to obtain, or assist third parties in obtaining, access to the Software and/or Services and/or Documentation, other than as provided under this Clause 2; or
introduce or permit the introduction of any Virus or other malicious exploit into the Software and/or Services or Talexio’s network and information systems.

2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Talexio.

2.6 The Customer acknowledges and agrees that the Software and/or Services are licensed and not sold. The Customer may access and operate the Software and/or Services and use its Documentation solely to perform those functions described within the Documentation. Access to the Software and/ or Services is granted within the limits set forth in the licences assigned as specified in the Order Form and/ or Service Schedule.

2.7 The Customer may use the Software and/or Service to provide professional services to third parties (such as a bureau service) only if the Customer has entered into a separate agreement with Talexio that authorises the Customer to use the Software and/or or Service for such purposes or if such permission is expressly granted in a specific Service Schedule applicable to the Customer. If the applicable Service Schedule does not indicate this, it is understood that the Customer is licensing the Software and/or Services for its internal use only. In the event that the Customer is licensed to use the Software and/or Service to provide professional services to third parties, additional conditions (including but not limited to those contained in Clause 8.6) will apply.

2.8 Unless otherwise expressly agreed to in writing within the applicable Order Form, the rights provided under this Clause 2 are granted to the Customer only, and shall only be considered granted to any subsidiary or holding company of the Customer as informed in writing by the Customer and approved in writing by Talexio.

2.9 Unit Subscriptions

Unless otherwise agreed to in writing as part of a separate agreement, Talexio hereby grants you a non-exclusive, non-transferable right to use the Software and/or Service during the active Subscription Term solely and exclusively for the Customer’s Internal Use, business purposes and operations for a quantity of Authorised Users, as defined in the related Order Form and any additional unit capacity subsequently and separately purchased in accordance with these Terms and Conditions.
In return, you undertake that:

(i) The number of Authorised Users that you will allow to access and use the Software/Services is in accordance to licenses purchased pursuant to an Order Form or license supplied;

(ii) You will not allow any account linked to Authorised User license to be used by more than one (1) individual unless this license related or linked to such Authorised User has been reassigned to another individual Authorised User;

3. Additional User Subscriptions

3.1 Subject to Clauses 3.2 and 3.3, the Customer may, from time to time during any Subscription Term, purchase and create additional Subscriptions in excess of the number set out in the Order Form and Talexio shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of these Terms and Conditions and any applicable Service Schedule.

3.2 The Customer shall notify Talexio in writing of the requirement to purchase additional Subscriptions. Talexio shall evaluate such requests for additional Subscriptions and respond to the Customer with approval or rejection of the request (such approval not to be unreasonably withheld). Where Talexio approves the request and is required to activate the additional Subscriptions it shall do so within three (3) days of its approval of the Customer's request. The Customer agrees that any request coming from any employee or representative of the Customer for the increase of Subscriptions shall be considered as being authorised by the Customer.

3.3 If the Customer for any specific period, makes active use of a number or volume of Subscriptions which is higher than those reflected in the Order Form or Service Schedule, without informing Talexio as per Clause 3.2 above, then Talexio shall have the right to invoice such additional usage to the Customer.

4. Services

4.1 Talexio shall, during the Subscription Term, provide the Services and make available the Software and Documentation to the Customer on and subject to the terms of these Terms and Conditions and any other specific terms and conditions as contained in the applicable Service Schedules.

4.2 Always subject to the provisions and limitations contained in the Talexio Support Policy, Talexio shall use commercially reasonable endeavours to make the Services available twenty four (24) hours a day, seven (7) days a week, except for:

planned maintenance performed with minimal to zero (0) downtime to the Customers; and
unscheduled maintenance performed outside Normal Business Hours, provided that Talexio has used reasonable endeavours to give the Customer at least two (2) Normal Business Hours notice in advance.

4.3 Subject to Clause 7.8, Talexio will, as part of the Services, provide the Customer with Talexio’s standard customer support services during Normal Business Hours in accordance with the Talexio Support Policy in effect at the time that the Services are provided. Talexio may amend the Talexio Support Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at Talexio’s then current Support Fees.

5. Data Protection

5.1 Each party shall comply with its respective obligations under applicable Data Protection Laws (“DPL”). Neither party shall do any act that puts the other party in breach of its obligations as per this clause nor shall anything in these Terms and Conditions be deemed to prevent any party from taking any action it reasonably deems necessary to comply with DPL.

5.2 The Customer agrees that during the course of the Services and when these Terms and Conditions are in force: (i) in respect of data the Customer collects (including Customer Data), the Customer alone shall determine the purposes for which and the manner in which Personal Data are, or will be, processed; (ii) the Customer is the Data Controller in respect of all Personal Data the Customer may process; and (iii) the Customer consents and has obtained consent from the Data Subject (third party) to send their Personal Data to Talexio.

5.3 Talexio agrees that, with the Customer’s express consent which is hereby acknowledged in these Terms and Conditions, Talexio is the Data Processor in respect of the Personal Data processed as provided by the Customer (including Customer Data), during the course of the provision of the Services.

5.4 The Customer warrants and undertakes that any instructions given by the Customer to Talexio will, at all times, be in accordance with the requirements of DPL. The Customer shall fully indemnify Talexio against any loss, damages, liability and costs (including attorneys’ fees) incurred by Talexio as a result of any breach of DPL by the Customer. The Customer agrees that Talexio may disclose any information held about the Customer or via the Customer to legitimate judicial or legal authorities. For more information regarding how Talexio uses your data, please see Talexio’s User Privacy Policy.

5.5 Talexio may use Customer Data only in anonymised, aggregated and de-identified format to provide statistical insights and/ or information in relation to the Services and with non-affiliated third-parties. In such instances no Customer Confidential Information or Personally Identifiable information will be revealed. Since such data will be completely anonymised the provisions of DPL will not apply. Talexio does not sell Customer Data.

5.6 In the event that the nature and role of Talexio is considered as being that of a Data Processor, depending on the type of Software and/or Service being provided, the provisions of this Clause 5 shall also be further subject to the Data Processing Agreement (‘DPA’ or ‘DP Agreement’) forming part and attached to these Terms & Conditions. In the event that the nature and role of Talexio is considered as being that of a Data Controller, depending on the type of Software and/or Service being provided, Talexio’s User Privacy Policy shall apply.

6. Third Party Providers

6.1 The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Talexio makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not Talexio. Talexio recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. Talexio does not endorse or approve any third-party website nor the content of any of the third-party websites made available via the Services.

7. Talexio’s obligations

7.1 Talexio shall perform the Services substantially in accordance with the Documentation and with reasonable skill and care.

7.2 Talexio’s obligations in 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Software and/or Services contrary to Talexio’s instructions, or modification or alteration of the Software and/or Services by any party other than Talexio or Talexio’s duly authorised contractors or agents. If the Services do not conform with the terms of Clause 7.1, Talexio will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in 7.1.

7.3 Talexio:

does not warrant that: (i) the Customer's use of the Software and/or Services will be uninterrupted or error-free; that the Services, Documentation and/or the information obtained by the Customer through the Software and/or Services will meet the Customer's requirements; (iii) the Software or the Services will be free from Vulnerabilities or Viruses.
is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

7.4 These Terms and Conditions shall not prevent Talexio from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these Terms and Conditions.

7.5 Talexio warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Terms and Conditions.

7.6 Talexio shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy or such other website address as may be notified to the Customer from time to time, as such document may be amended by Talexio in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against Talexio shall be for Talexio to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Talexio in accordance with the archiving procedure described in its Back-Up Policy. Talexio shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Talexio to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable).

7.7 The Customer is fully responsible for the contents and transmissions through the Software and/or Services. Talexio simply acts as a passive conduit for the Customer to store, manage, send and receive information of the Customer’s own choosing. However, Talexio reserves the right to take any action with respect to the Software and/or Services that Talexio deems necessary or appropriate in its sole discretion, if Talexio believes that the Customer or the Customer’s information may create liability for Talexio, compromise or disrupt the Software and/or the Service for the Customer or other customers, or cause Talexio to lose (in whole or in part) the Software and/or Service or other suppliers.

7.8 If the Customer has a valid and active Subscription with Talexio and is current with all applicable payments, Talexio will provide the Customer with the support services described in this paragraph (“Support”) on a local office hours basis and as further defined in the applicable Talexio Support Policy. Upon mutual prior written agreement by both parties, Talexio may, but shall not be required to supply code corrections to the Customer to correct any Software or Service malfunctions in order to bring such Software and/or Service into substantial conformity with the published operating specifications for the most current version of the Software and/or Service, unless any Customer’s unauthorised modifications hamper such corrections or cause the malfunction. Failure of the Customer to renew its subscription and/or not settle dues within agreed credit periods, may result in loss of right to receive feature or content updates, or will result in the automatic deactivation, or termination of the applicable Software and/or Service.

7.9 Talexio shall provide the Software and/or Services in accordance with the Service Level Standards as defined in the Talexio Service Level Policy. In the event that Talexio does not meet any of the standards contained in the Talexio Service Level Policy, Talexio shall use its best efforts to ensure that any service level standards are subsequently met. Notwithstanding the foregoing, Talexio shall use its best efforts to minimize the impact or duration of any outage, interruption, or degradation of the Software and/or Service.

7.10 Talexio shall reserve the right (and the Customer acknowledges and agrees) that Talexio shall be allowed to contact the Customer as well as its Authorised Users (through various channels including but not limited to email and telephone communications) to ensure that the Software and Services being provided are of the level and quality as promised in these Terms and Conditions as well as ensure that it can receive ongoing feedback from the Customer and Authorised Users (through various channels including but not limited to email and telephone communications) so that it can continuously improve its Software and/or Services.

8. Customer Obligations

8.1 Without prejudice to the provisions and obligations contained in the Talexio Support Policy, the Customer shall:

provide Talexio with: (i) all necessary co-operation in relation to these Terms and Conditions; and (ii) all necessary access to such information as may be required by Talexio; in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
without affecting its other obligations under these Terms and Conditions, comply with all applicable laws and regulations with respect to its activities under these Terms and Conditions;
carry out all other Customer responsibilities set out in these Terms and Conditions (inclusive of any special conditions contained in a Service Schedule applicable to it) in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, Talexio may adjust any agreed timetable or delivery schedule as reasonably necessary;
ensure that the Authorised Users use the Services and the Documentation in accordance with these Terms and Conditions and shall be responsible for any Authorised User's breach of these Terms and Conditions;
obtain and shall maintain all necessary licences, consents, and permissions necessary for Talexio, its contractors and agents to perform their obligations under these Terms and Conditions, including without limitation the Services;
ensure that its network and systems comply with the relevant specifications provided by Talexio from time to time; and
be, to the extent permitted by law and except as otherwise expressly provided in these Terms and Conditions, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Talexio’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.

8.2 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

8.3 The Customer agrees that the Software and/or Services will not be used, shipped, transferred or exported into any country or to anyone: (i) subject to EU or UN embargoes; (ii) where the national legislation of the relevant EU Member State has imposed one or more embargoes; (iii) listed in any enacted Common Position on restrictive measures imposed by the EU; (iv) on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders; or (v) in any manner prohibited by the EU Common Foreign and Security Policy, the United States Export Administration Act, or any other export laws or regulations. By using the Software and/or Services, the Customer represents that it is not located in, under the control of, or a national or resident of any such country or on any such list and the Customer takes full and sole responsibility for such use.

8.4 Part of the Software and/or Services may incorporate and consist of third party Open Source software (“Open Source”), which the Customer may use under the terms and conditions of the specific license under which the Open Source software is distributed. The Customer agrees that it will be bound by any and all such license agreements. Title to software remains with the applicable licensor(s).

8.5 The Customer acknowledges that the Software and/or Services may contain technological protection measures that limit time of use or functionality in accordance with the type of licence applicable to the Customer.

8.6 Subject to any right emanating from clause 2.7, the Customer shall not license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit (such as a corporate service provider offering a service to third parties), or otherwise make one or more of the Software and/or Services available to any third party except the Authorised Users. Similarly, the Customer is hereby prohibited from developing any products or services which are similar in nature to the Software and/or Services of Talexio or compete therewith.

8.7 In the event, and always subject to Clause 2.7, the Customer is authorised to provide professional services to third parties (such as a bureau service), the provision of such services by the Customer is further subject to the following provisions:

The Customer may not use the Software and/or Services to provide professional services to third parties in a manner that is inconsistent with these Terms and Conditions.

9. Charges and Payment

9.1 The Customer shall pay the Subscription Fees to Talexio for the User Subscriptions in accordance with this clause 9 and the Order Form.

9.2 If applicable, the Customer shall provide to Talexio valid, up-to-date and complete credit card details or approved purchase order information acceptable to Talexio and/ or any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:

its credit card details to Talexio, the Customer hereby authorises Talexio to bill such credit card: (i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and (ii) subject to Clause 14.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
its approved purchase order information to Talexio, Talexio shall invoice the Customer: (i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and (ii) subject to Clause 14.1, at least thirty (30) days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,

and the Customer shall pay each invoice within thirty (30) days after the date of such invoice.

9.3 If Talexio has not received payment within thirty (30 days) or as prescribed in the Order Form after the due date, and without prejudice to any other rights and remedies of Talexio:

Talexio may, on no less than five (5) Business Days' notice to the Customer and without liability to the Customer, disable and/or suspend the Customer's password, account and access to all or part of the Services and Talexio shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid (and in any event Talexio reserves the right to charge the Customer for the reversal of the suspension of any Service); and
Interest shall accrue on such overdue amounts at a rate equal to 8% per annum, commencing on the due date until the date that all fees, charges, interest and any expenses incurred by Talexio to recover such overdue amounts are paid by the Customer to Talexio in full.

All amounts and fees stated or referred to in these Terms and Conditions and related Schedules:

shall be payable in Euros;
are, subject to Clause 13.3(b), non-cancellable and non-refundable;
are exclusive of Value Added Tax, which shall be added to Talexio’s invoice(s) at the appropriate rate.

9.4 Without prejudice to the provisions contained in the Talexio Service Level Policy, if, at any time whilst using the Services, the Customer exceeds the amount of any applicable disc storage space, Talexio may impose additional charges. Talexio shall notify the Customer thirty (30) days prior to such storage excess and fees will be determined on a case by case basis.

9.5 Talexio shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to 3.3, the Support Fees payable pursuant to 4.3 and/or the additional fees or any other fee or charge directly or indirectly related to the Software and or Services at the start of each Renewal Period subject to ninety (90) days' prior notice to the Customer and Order Form shall be deemed to have been amended accordingly.

10. Proprietary Rights

10.1 The Customer acknowledges and agrees that Talexio and/or its licensors own all intellectual property rights in the Software and/or Services and the Documentation including any changes or modifications or customisations to the Software and/or Services when requested by the Customer. Except as expressly stated herein, these Terms and Conditions and related Schedules do not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software and/or Services or the Documentation even if any changes or modifications or customisations to the Software and/or Services were requested by the Customer.

10.2 Talexio confirms that it has all the rights in relation to the Software and/or Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, these Terms and Conditions.

11. Confidentiality

11.1 The provisions of this clause shall not apply to any Confidential Information that:

is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
the parties agree in writing is not confidential or may be disclosed;
is developed by or for the receiving party independently of the information disclosed by the disclosing party.

11.2 Each party shall keep the other party's Confidential Information secret and confidential and shall not:

use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with these Terms and Conditions and any Services provided pursuant to same; or
disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 11.

11.3 A party may disclose the other party's Confidential Information to those of its Representatives who need to know such Confidential Information for the provision of the Services by Talexio, provided that:

it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
at all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this clause.

11.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

11.5 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in these Terms and Conditions are granted to the other party, or to be implied from these Terms and Conditions.

11.6 On termination of the Services, each party shall:

destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information;
erase all the other party's Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and
certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party's Confidential Information to the extent required by law or any competent governmental or regulatory authority. The provisions of this clause shall continue to apply to any such documents and materials retained by a recipient party, subject to the Termination clause.

11.7 No party shall make, or permit any person to make, any public announcement concerning these Terms and Conditions without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

11.8 Except as expressly stated in these Terms and Conditions, no party makes any express or implied warranty or representation concerning its Confidential Information.

11.9 The Customer agrees that Talexio may use the Customer’s company name, logo, qualitative testimonials and anonymised aggregated insights from user quality assessments for marketing or other purposes.

11.10 The above provisions of this Clause 11 shall continue to apply after termination [or expiry] of the Services for a period of five (5) years from termination.

12. Indemnity

12.1 The Customer shall defend, indemnify and hold harmless Talexio against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Software and/or Services and/or Documentation, provided that:

the Customer is given prompt notice of any such claim;
Talexio provides reasonable cooperation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
the Customer is given sole authority to defend or settle the claim.

12.2 Talexio shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Software and/or Services or Documentation in accordance with these Terms and Conditions infringes any, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgement or settlement of such claims, provided that:

Talexio is given prompt notice of any such claim;
the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to Talexio in the defence and settlement of such claim, at Talexio's expense; and
Talexio is given sole authority to defend or settle the claim.

12.3 In the defence or settlement of any claim, Talexio may procure the right for the Customer to continue using the Software and/or Services, replace or modify the Software and/or Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Services or use of the Software on five (5) Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

12.4 In no event shall Talexio, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

a modification of the Software and/or Services or Documentation by anyone other than Talexio; or
the Customer's use of the Software and/or Services or Documentation in a manner contrary to the instructions given to the Customer by Talexio; or
the Customer's use of the Software and/or Services or Documentation after notice of the alleged or actual infringement from Talexio or any appropriate authority; or
the Customer's breach of these Terms and Conditions and any applicable Schedules.

12.5 The foregoing states the Customer's sole and exclusive rights and remedies, and Talexio's (including Talexio’s employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

13. Limitation of Liability

13.1 Except as expressly and specifically provided in these Terms and Conditions:

the Customer assumes sole responsibility for results obtained from the use of the Software and/or Services and the Documentation by the Customer, and for conclusions drawn from such use. Talexio shall have no liability for any damage caused by errors or omissions in any Customer Data, information, instructions or scripts provided to Talexio by the Customer in connection with the Software and/or Services, or any actions taken by Talexio at the Customer's direction;
all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or law are, to the fullest extent permitted by applicable law, excluded from these Terms and Conditions; and
the Software and/or Services and the Documentation are provided to the Customer on an "as is" basis.

13.2 Nothing in these Terms and Conditions excludes the liability of Talexio:

for death or personal injury caused by Talexio’s negligence; or
for fraud or fraudulent misrepresentation.

13.3 Subject to 13.1 and 13.2:

Talexio shall have no liability for any loss of profits, loss of business, wasted expenditure, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses; and
Talexio’s total aggregate liability to the Customer, in respect of all breaches of duty occurring within any contract year, shall not exceed the cap. If breaches committed in more than one contract year give rise to a single claim or a series of connected claims, the Talexio’s total liability for those claims shall not exceed the single highest annual cap for those contract years.
In clause 13.3(b): The cap shall be the total Subscription Fees paid in the contract year in which the breaches occurred. A contract year means a twelve (12) month period commencing on the Effective Date or any anniversary of it.

13.4 References to liability in this Clause 13 include every kind of liability arising under or in connection with these Terms and Conditions including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

13.5 Nothing in these Terms and Conditions excludes the liability of the Customer for any breach, infringement or misappropriation of Talexio’s Intellectual Property Rights.

Term and Termination

14.1 These Terms and Conditions shall, unless otherwise terminated as provided in this 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, these Terms and Conditions shall remain valid and applicable and shall be automatically renewed for successive periods as prescribed in the applicable Service Schedule or Order Form (each a Renewal Period), unless:

either party notifies the other party of termination, in writing, at least ninety (90) days before the end of the Initial Subscription Term or any Renewal Period, in which case these Terms and Conditions shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
otherwise terminated in accordance with the provisions of these Terms and Conditions;

The Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

4.2 The following conditions shall apply upon termination of the services as follows:

Agreement type	Termination With Cause	Termination Without Cause
Agreement on a month by month basis	Fees due in full for the Agreement Term	Fees due in full for the Agreement Term
Agreement on fixed term basis	Fees due pro-rata from the Effective Date or anniversary of the Effective Date up to date of termination	Fees due in full for Subscription Term
Customisations	Fees for customisations that have been completed and commissioned	Full fees for all customisations commissioned and initiated

14.3 Without affecting any other right or remedy available to it, Talexio may terminate its relationship with the Customer (and thereby terminating any license to use specific Software and/or Services) with immediate effect by giving written notice to the Customer if:

the Customer fails to pay any amount due under these Terms and Conditions and applicable Service Schedules on the due date for payment and remains in default not less than thirty (30) days after being notified in writing to make such payment;
the Customer commits a material breach of any other term of these Terms and Conditions and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of local law;
the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Customer (being a company, partnership or limited liability partnership);
a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer's assets and such attachment or process is not discharged within thirty (30) days;
any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in 14.3(c) to clause 14.3(h) (inclusive);
the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to these Terms and Conditions is in jeopardy; or
there is a change of control of the Customer.

14.4 On termination for any reason:

all licences granted to the Customer by Talexio shall immediately terminate and the Customer shall immediately cease all use of the Software and/or Services and/or the Documentation;
each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
Talexio may destroy or otherwise dispose of any of the Customer Data in its possession unless Talexio receives, no later than ten (10) days after the effective date of the termination, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Talexio shall use reasonable commercial endeavours to deliver the back-up to the Customer within thirty (30) days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Talexio in returning or disposing of Customer Data. The Parties may agree that Talexio shall store any back-up Customer Data beyond the termination of the Services but subject to the payment by the Customer of any additional back-up fees to be charged by Talexio; and
any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Terms and Conditions which existed at or before the date of termination shall not be affected or prejudiced.

Force majeure

15.1 Neither party shall be in breach of these Terms and Conditions or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for one (1) month, the party not affected may terminate the Software and/or Services by giving fifteen (15) days written notice to the affected party.

Conflict

16.1 Unless otherwise noted in any applicable Service Schedule or Service Order entered into with a Customer or applicable to a Customer, if there is an inconsistency between any of the provisions in these Terms and Conditions and any Schedules or Service Orders entered into by the Customer or applicable to the Customer, the provisions in these Terms and Conditions shall prevail.

Subcontracting

17.1 Talexio has the right to sub-contract one, more or all of the Services in part or in whole to a third party without giving any notice to the Customer, wherein such sub-contracting services form part of the core functioning of the system, as long as Talexio ensures that such parties are bound by the duties and obligations set out in these Terms and Conditions.

Waiver

18.1 A waiver of any right or remedy contained in these Terms and Conditions is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

Rights and remedies

19.1 Except as expressly provided in these Terms and Conditions, the rights and remedies provided under these Terms and Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.

Severance

20.1 If any provision or part-provision of these Terms and Conditions 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 these Terms and Conditions.

Entire Agreement

21.1 These Terms and Conditions (and any related Schedules or Service Schedules entered into or applicable to the Customer) constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.

21.2 The Customer acknowledges that in entering into these Terms and Conditions it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms and Conditions.

Assignment

22.1 The Customer shall not, without the prior written consent of Talexio, assign, transfer, subcontract, delegate or deal in any other manner with any of its rights and obligations under these Terms and Conditions.

22.2 Talexio may at any time assign, subcontract, delegate or deal in any other manner with any or all of its rights and obligations under these Terms and Conditions.

No partnership or agency

23.1 Nothing in these Terms and Conditions is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

Notices

24.1 Any notice given to a party under or in connection with these Terms and Conditions shall be in writing and shall be delivered by hand or by pre-paid post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case) or sent by email to admin@exp42.com (if for Talexio) or the email of the Customer as registered with Talexio (if for the Customer).

24.2 Any notice shall be deemed to have been received:

if delivered by hand, at the time the notice is left at the proper address;
if sent by pre-paid post next working day delivery service, at 9.00 am on the second Business Day after posting; or
if sent by email, at the time of transmission, or, if this time falls outside Business Hours when Business Hours resume.

24.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

Governing Law

25.1 These Terms and Conditions and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the laws of Malta.

Jurisdiction

26.1 The Customer agrees that any dispute or claim arising out of or in connection with these Terms and Conditions and any Service obtained from Talexio shall be subject to arbitration in accordance with the Malta Arbitration Centre rules in force at the time of the dispute, where the appointing authority and administrator shall be the Malta Arbitration Centre, the number of arbitrators shall be one and the place of arbitration shall be Malta.

Miscellaneous

27.1 The Software can be licensed to the Customer at the full discretion of Talexio for Corporate Social Responsibility, Freeware, Education and Evaluation purposes. The mode under which such license is assigned is identified in the applicable Service Schedule or other notification from Talexio.

27.2 If available for Evaluation, the Customer may evaluate the applicable Software and/or Service, which may have reduced functionality, for up to thirty (30) days or otherwise agreed to in writing with Talexio, at no cost. The Customer may evaluate the Software and/or Service only to determine whether to license such Software and/or Service. The Customer may only evaluate a Software and/or Service once. At the end of the evaluation period, the Customer must either license the Software and/or Service or cease all use of such Software and/or Service.

27.3 Product licensed under the Corporate Social Responsibility programme allows the Customer to operate the Product in full for Internal Use.

27.4 Any Software and/or Service licensed under the Educational programme allows the Customer to operate such applicable Software and/or Service in full for only demonstration and educational purposes within the Customer’s organisation. No commercial, production or service use is authorised. The Customer is not authorised to use the product as Educational unless directly holding a specific authorisation in writing in this regard issued by Talexio.

27.5 Product licensed under the Freeware programme allows the Customer solely to operate any applicable Software and/or Service in full within the limits directly identified by Talexio in writing.

27.6 Customer’s use of the Software and/or Services during an Evaluation period or for any Software and/or Service that is offered as Freeware, Education, or Corporate Social Responsibility shall be without warranty of any kind and is provided “As Is”. Talexio has no duty to provide any Support to the Customer during such use.

27.7 Access to the Software and/or Service can be given to the Customer earlier than the general availability of the Software and/or Service as a pre-release. Any such access shall be without warranty of any kind and is provided “As Is”. Talexio has no duty to provide any Support during such use and is still subject to these Terms and Conditions. Such provision is done so only for the purpose of assisting Talexio with testing functionality or compatibility and on the express condition that the Customer provides Talexio with truthful, accurate and complete feedback, comments, analysis in whatever format the Customer may wish, or is directed by, to provide to Talexio (“Contribution”). The Customer expressly acknowledges that its participation in any testing or review for feedback is undertaken on a volunteer basis and that the Customer shall have no right in the Software and or/Service or Contribution, whether in original form (as provided to the Customer) or in respect of any derivative work (whether or not based upon, in whole or in part, any participation or feedback the Customer may make). Notwithstanding the foregoing, the Customer agrees to grant to Talexio a royalty-free, perpetual, transferable licence to commercially use and sublicense in Talexio’s sole discretion, any and all Contribution.

27.8 Talexio may modify, amend or update these Terms and Conditions at any time for reasons such as, but not limited to, (a) changes in laws that are applicable to the Services (b) clarifying any wording or terms (c) providing for new products or services (d) preventing any abuse of Services offered. Should Talexio determine it necessary to make a material modification to these Terms and Conditions (excluding changes to Subscription Fees), the Customer will be provided with ninety (90) days’ notice of such change prior to the Renewal Date. Failure to accept the material modifications may result in termination or suspension to the Services. Note, however, that continued use of the Service after modifications to the Terms and Conditions become effective constitutes a binding acceptance of such changes.

Definitions

The following terms have the following interpretation for the purposes of these Terms and Conditions and for the Services provided by Talexio:

Authorised Users: those employees, agents, independent contractors and any other individual or entity of the Customer who are authorised by the Customer to use the Software and/or Services and the Documentation, as further described in these Terms and Conditions.

Business Day: a day other than a Saturday, Sunday or public holiday in Malta and excluding the shutdown period of Talexio (currently between the 24th December to 1st January of each calendar year).

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information and includes all confidential information (however recorded or preserved) disclosed by a party or its Representatives to the other party and that party's Representatives in connection with any matter related to these Terms and Conditions and Services being procured under same, including but not limited to: (a) any information that would be regarded as confidential by a reasonable business person relating to: the business, assets, affairs, customers, clients, suppliers, plans, intentions or market opportunities of the disclosing party or of any member of the group of companies to which the disclosing party belongs; and (ii) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party or of any member of the group of companies to which the disclosing party belongs; (b) any information developed by Talexio in the course of providing the Services and the parties agree that: (i) details of the Services, and the results of any performance tests of the Services, shall constitute Supplier Confidential Information; and (ii) Customer Data shall constitute Customer Confidential Information.

Customer Data: the data inputted by the Customer, Authorised Users or Talexio on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.

Documentation: the document/s made available to the Customer by Talexio online via Talexio help centre or such other web address notified by Talexio to the Customer from time to time which sets out a description of the Services (including any related functionality and/or features) and the user instructions for the Services.

Effective Date: the date when the Customer starts using the Software and/or Services and Documentation.

Hardware: any hardware (such as biometric attendance and punch clock devices) certified as compatible with the Services and procured from Talexio.

Hosting Environment: the operating system, management environment, hardware and other computer resources used for the running and/or delivery of the Services and/or the Software.

Initial Subscription Term: the initial term of the Services as set out in the Order Form .

Normal Business Hours: 8.00 am to 5.00 pm CET, each Business Day.

Order From: the order form, whether as an online form or paper form listing the Software and/or Services (and related licences) being purchased by the Customer from Talexio, either in the form as contained in the Order From or as available in the billing centre.

Renewal Period: the period described in 14.1.

Representatives: means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.

Services: the subscription or non-subscription services provided by Talexio to the Customer subject to these Terms and Conditions as more particularly described in the Documentation.

Service Schedule: (or Service Order) the respective schedule defining the exact services and software products, including any applicable additional terms and conditions contained therein, being procured by the Customer.

Set-Up Fees: the one time, non-refundable charge applicable for the initial set-up of the Services and Software to the Customer.

Software: the online software applications provided by Talexio as part of the Services. The term “Software” shall also mean, where appropriate, third-party proprietary software bundled with Talexio proprietary software and made available to the Customer subject to these Terms and Conditions.

Subscription Fees: the subscription fees payable by the Customer to Talexio for the User Subscriptions, as set out in the Order Form.

Subscription Term: has the meaning given in 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).

Subscriptions: the user subscriptions purchased by the Customer pursuant to Clause 9.1 which entitle Customer and/or Authorised Users to access and use the Software and/or Services and the Documentation in accordance with these Terms and Conditions.

Support Fees: Charges applicable for access to the full set of support resources of the Software and/or Services as defined in the Order Form and Talexio Support Policy.

Talexio Back-up & Retention Policy: in relation to Talexio’s back-up and retention aspects as well as considerations applicable to the Software and Services as available here or such other website address as may be notified to the Customer from time to time.

Talexio Customer Support Policy: Talexio’s policy for providing support in relation to the Services as available here or such other website address as may be notified to the Customer from time to time.

Talexio Security Policy: Talexio’s Security Policy in relation to security aspects and considerations applicable to the Software and Services as available here or such other website address as may be notified to the Customer from time to time.

Talexio Service Level Policy: the standard, scope and procedures that govern the service levels at which Talexio shall provide the Services to the Client as available here or such other website address as may be notified to the Customer from time to time.

Talexio User Privacy Policy: The role of Talexio where it is considered a Data Controller, depending on the Software and/or Service being provided as available here or such other website address as may be notified to the Customer from time to time.

Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices

Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.

Data Processing Agreement

The Data Processing Agreement available here forms an integral part of these Terms and Conditions.