Paynest Terms & Conditions
Last updated: June 11, 2024
PART A
Paynest Saas (Software-as-a-Service) Terms and Conditions
All capitalized terms used in these Terms and Conditions have the meaning given to them in Part B – Definitions unless they are also defined in capitalized and bold terms within Part A. References to a “Clause” or "Section" are to the clauses of these Terms and Conditions.
1. Scope of Service
1.1. Grant. Paynest hereby agrees to provide to the Customer unobstructed access to the Platform on the Cloud Environment, who shall use it in accordance with the Scope of Use.
1.2. Scope of Use. Customer shall use the Platform solely and exclusively with a view to enabling Enrolled Employees to receive advance payments from their earned but unpaid Net Salary. Customer undertakes to ensure that the Enrolled Employees will use the Mobile Application in accordance with the Scope of Use.
1.3. Authorization and Appointment. The Customer hereby appoints and authorizes Paynest to perform any actions necessary for the fulfillment of the Scope of Use on its behalf, including the opening of one or more bank accounts with any Banking Partner or Certified Payment Institution, and representing the Customer vis-à-vis the selected Certified Payment Institution or Banking Partnerin relation to the processing of the Requests per Clause 3.1.1-3.1.4 (the “Representative Function”). If any Certified Payment Institution or Banking Partner requests the provision of a separate power of attorney, or to enter into a self-standing agreement, for this Clause 1.3 to have full force and effect, the Customer will execute it without any undue delays. For the avoidance of doubt, all obligations and rights arising out of the banking relation between the Customer and the Banking Partner or the Certified Payment Institution shall not give rise to any liability of Paynest in the course of performing its duties under the Representative Function.
2. Maintenance and Support Services
2.1. Paynest shall provide to the Customer solely and exclusively the following Maintenance and Support Services:
2.1.1. Telephone or remote assistance regarding Customer's proper and authorized use of the Platform, during Paynest's normal business hours per the Applicable Law;
2.1.2. Reasonable efforts to solve Errors reported by Customer, during Paynest's normal business hours, in accordance with the Applicable Law provided that the Customer provides Paynest with a reasonably detailed explanation and sufficient documentation including all relevant underlying data, to allow Paynest to establish the existence of any Error and to assist Paynest in its efforts to diagnose and correct the Error. If a reported Error by the Customer does not eventually exist or is not attributable to a defect in the Platform, or an act, or omission of Paynest, then the Customer shall reimburse Paynestfor the costs incurred by Paynest as a result of committing human and other resources to the investigation of the existence of the Error and all related services thereto;
2.1.3. The aggregate duration of Maintenance and Support Services under this Agreement cannot be shorter than the Initial Support Term or any Renewal Support Term, thereafter.
2.2. At any time following the Support Termination Date, Paynest shall cease providing all Maintenance and Support Services and if Customer subsequently wishes to reinstate them, Customer shall pay to Paynest the Service Fees that would have been charged during the period between termination and reinstatement.
3. Paynest’s Obligations in relation to the Operation of the Platform and the Mobile Application
3.1. Without prejudice to Clause all other obligations under the SaaS T&Cs and any Schedules thereof, Paynest undertakes to perform solely and exclusively the following obligations in relation to the operation of the Platform and the Mobile Application:
3.1.1. Process and accept every Request unless:
(a) when aggregated with the Enrolled Employee’s previous Requests, it exceeds the Maximum Amount;
(b) the relevant Request exceeds the Request Maximum Amount;
(c) it is made between the Reconciliation Day and the last day of the Salary Period (inclusive);
(d) the balance in the Employer’s Account is insufficient to meet the whole Request;
(e) Paynest reasonably believes a third-party might have access to the Enrolled Employee’s Account;
(f) the Net Salary of the Enrolled Employee has not been consistently paid by the Customer to the Enrolled Employee in accordance with the Employment Agreement and the Applicable Law for at least six (6) consecutive months;
(g) the testing period of the Enrolled Employee based on its Employment Agreement and Applicable Law has not yet expired;
(h) the Enrolled Employee has, prior to the filing of the Request, filed a request for a leave of absence;
(i) the Enrolled Employee has given notice to the Customer in relation to the termination of the Employment Agreement;
(j) The Customer has given notice to the Enrolled Employee in relation to the termination of the Employment Agreement or has any reason to believe that the Enrolled Employee will leave his employment for any reason or has become aware of facts that can lead to the termination of the Employment Agreement by Customer under Applicable Law; and
(k) an Enrolled Employee’s salary date and/or circumstances will change between the Reconciliation Day and the last day of the Salary Period (inclusive) in a way that will or might reduce their Net Salary.
This Clause 3.1.1(h)-(k) is without prejudice to the Customer’s obligations under Clause 4.1.
3.1.2. if a Request is accepted, instruct the Certified Payment Institution or Banking Partner to:
(a) make a corresponding payment from the Customer’s Account to the Bank Account;
(b) transfer the Transaction Fees, from the Customer’s Account to Paynest’s account;
4. Customer’s Obligations in relation to the Operation of the Platform
4.1. Without prejudice to all other obligations under the SaaS and any Schedules thereof, the Customer undertakes to perform solely and exclusively the following obligations in relation to the operation of the Platform and the Mobile Application:
4.1.1. Customer’s Account is equal to or greater than the balance described in the Paynest Contract;
4.1.2. (if it receives a written request for a variation of an Employment Agreement from an employee), accept that request in writing within a reasonable period, if the variation is required to enable the employee to become an Enrolled Employee;
4.1.3. the latest 24 hours before every Reconciliation Day securely deliver, or ensure that an appropriate third-party securely delivers, accurate Payroll Data to Paynest, with the scope, nature and type of Payroll Data, and the delivery method, to be agreed between the Parties, from time to time;
4.1.4. as soon as reasonably practicable, give Paynest notice if it has a good reason to believe that (a) an Enrolled Employee will leave its employment for any reason; or (b) an Enrolled Employee’s salary date and/or circumstances will change in a way that will or might reduce their Net Salary; or (c) it becomes aware of any other fact or matter that will or might affect Paynest’s ability to process payments for an Enrolled Employee;
4.1.5. take all reasonable steps to prevent unauthorized access to and/or use of the Platform, and tell Paynest immediately if it becomes aware that unauthorized access and/or use has or might have occurred; and
4.1.6. (if it gives notice under paragraph 4.1.5), tell the Enrolled Employees that it has done so.
5. Invoicing and Payments
5.1. Service Fees. Paynest shall invoice Service Fees on a monthly basis and Customer shall pay to Paynest such fees, no later than thirty days from the date of invoice.
5.2. Transaction Fees. Paynest shall deduct Transaction Fees directly from the Net Salary of the Enrolled Employee in accordance with Clause 3.1.3.
5.3. Expense Reimbursements. Customer shall reimburse Paynest for traveling and out-of-pocket expenses incurred by its personnel solely to the extent traveling is necessary for the performance of the Services and if previously agreed in writing between Customer and Paynest.
5.4. Taxes. All amounts payable by Customer to Paynest under this Agreement exclude any taxes, withholding taxes, value added taxes, levies and duties that may be imposed upon Customer’s payments under Applicable Law, save only for taxes arising from Paynest's net income. All sums payable under this Agreement shall be paid in full and without any deductions (for items such as income, corporation, or other taxes, charges and/or duties), except where the Customer is required by law to deduct withholding tax from sums payable to Paynest, in which case Customer shall pay to Paynest such additional amount (along with the payment to which the withholding or deduction relates) in order to ensure that Paynest receives the same total amount that it would have received if no such withholding or deduction had been required.
5.5. Nonpayment. If Customer fails to pay Paynest as per Sections 5 and 13.2, Paynest reserves the right at its sole discretion and without further notice, to either (a) suspend the performance of any or all of its obligations under this Agreement, including the provision of access onto the Platform and the Maintenance and Support Services, until all due and payable amounts are paid in full, or (b) terminate this Agreement as per Section 13.
5.6. Other Terms. (a) All invoices issued by Paynest shall be sent to the designated Customer's address or e-mail address. (b) All fees and other amounts paid by Customer under this Agreement are non-refundable. (c) All amounts referred to in this Agreement are in Euros.
6. Paynest’s Warranties
6.1. Paynest’s No Infringement. Paynest warrants to Customer that (a) it has all rights necessary to grant to Customer access to the Platform described under Clause 1, (b) the Platform, as and when Customer gets access to it on the Cloud Environment by Paynest and if properly used for the purposes and in the manner specifically authorized by this Agreement, does not infringe, to the best of Paynest 's knowledge, on the Effective Date, upon any patent, copyright, trade secret or other proprietary right of any Person.
6.2. Paynest’s Access to Platform. Paynest warrants to Customer that no later than 30 days from the Effective Date, the Platform shall comply in all material respects with the descriptions provided in this Agreement, as agreed by both Parties, and shall be made available to the designated personnel of the Customer in the Cloud Environment.
6.3. The warranties set out in this Section are the entire and exclusive warranties made by Paynest with respect to the Software and any related services or matters pertaining to this Agreement. To the maximum extent permitted by law, all other warranties and representations (including any warranty of merchantability, satisfactory quality and fitness for any particular purpose), whether express or implied, are excluded.
7. Paynest’s Indemnity
7.1. Paynest shall undertake the legal representation of the Customer in relation to, and indemnify Customer against all liabilities, costs, expenses, damages and losses suffered or incurred by the Customer arising out of legal proceedings that are initiated by a third-party in relation to the actual or alleged infringement of a third party's intellectual property rights in violation of the warranties in Section 6.1 (hereinafter, “Third-Party IPR Claim against Customer”). In such a case, Paynest retains the absolute discretion to determine the strategy which Customer shall adopt in any relevant judicial proceedings, including the right to dispose of a Third-Party IPR Claim against Customer by entering into binding settlement agreements.
7.2. If any Third-Party IPR Claim against Customer is initiated, or is likely to be initiated, then Paynest shall have the right to proceed to the following remedies, in the following order of priority, which shall be superseded only if the action described in 7.2.1, and then the action described in 7.2.2 are objectively impracticable or the infringement cannot be remedied as a result thereof:
7.2.1. modify or replace part(s) of the Platform in order to remedy and cease any infringements upon the rights of third-parties, provided that the Platform functionality does not change in any material respect;
7.2.2. acquire on the Customer’s behalf the right to continue using the infringing part of the Platform;
7.2.3. remove all, or part thereof, of the Platform that infringes upon third-party rights, and refund Customer with the portion of the Services Fees paid following the filing of the Third-Party IPR Claim against Customer.
8. Customer's Prerequisites and Obligations
8.1. Data Security. With respect to the use of the Platform, Customer shall maintain (a) adequate technical and procedural access controls and system security requirements, in order to protect data privacy, confidentiality, integrity, authorization, authentication, non-repudiation, virus detection and eradication, (b) agreements with all End-users who undertake to protect the confidentiality and proprietary items of Paynest and disclaim any liability or responsibility of Paynest with respect to such End-users, except if and as provided to the contrary onto the Mobile Application Terms of Use and unless the Mobile Application Terms of Use exempt the Customer from doing so, and (c) back-up copies of data that is processed, in order to be restored in the event of any loss or damage.
8.2. Customer’s Notices. Customer shall give a prior written notice of fifteen (15) calendar days to Paynest whenever Customer intends to change, modify, amend or expand the Scope of Use, with a view to including Coach Services.
8.3. Awareness Plan. Customer shall deliver the milestones set out in the Awareness Plan and perform accordingly.
8.4. Compliance. The Customer shall comply with all obligations set out in the Data Processing Agreement and Applicable Law.
8.5. Promotion. The Customer shall promote in good faith the Mobile Application and the Platform to the Employees through use of the Awareness Materials.
9. Customer’s Representations and Warranties
9.1. Customer’s No Infringement. Customer warrants to Paynest that Customer has the full legal right to grant to Paynest the right to use of the Customer Material, that it is lawfully entitled to do so, that it owns such Customer Material that the Customer Material is accurate, complete and up-to-date, and that on the Effective Date, such right does not infringe to the best of its knowledge, upon any patent, copyright, trade secret or other proprietary right of any Person. Customer hereby grants to Paynest a non-exclusive right to use the Customer Material for the term of this Agreement for the purposes of fulfilling Paynest's obligations under this Agreement.
9.2. Customer’s Use Restrictions on Paynest 's Proprietary Items. Customer hereby acknowledges and agrees that Paynest owns solely and exclusively, or is duly licensed to use, any and all right, title and interest in and to all Proprietary Items, which are provided on as-is basis on the Cloud Environment to Customer solely in connection with this Agreement and solely for its own internal business purposes and solely for the fulfillment of the Scope of Use and on a strictly confidential and limited basis. The Customer explicitly acknowledges that this Agreement is not an agreement of sale of Proprietary Items (including Copies of them in Customer’s possession, and such items that were created by Paynest specifically for or on behalf of Customer). Customer warrants to Paynestthat it shall not do, attempt to do, or permit any other Person to do, any of the following:
9.2.1. directly or indirectly, communicate, publish, display, loan, give or otherwise disclose any Proprietary Item(s) to any Person, or permit any Person to have access to, or possess of any Proprietary Item(s) unless explicitly authorized under the Awareness Plan;
9.2.2. use any Proprietary Item for any purpose, at any location or in any manner not specifically authorized by this Agreement;
9.2.3. make or retain any Copy of any Proprietary Item except as specifically authorized by this Agreement;
9.2.4. save as specifically permitted by Applicable Law, create or recreate in any manner (including the methods of re-engineering, reverse engineering, decompiling or disassembling) the Platform or the source code for the Platform;
9.2.5. modify, adapt, translate or create derivative works based upon the Platform, or combine or merge any part of the Platform with or into any other software or documentation save to the extent and in the circumstances permitted by Applicable Law;
9.2.6. refer to, obtain guidance from, or otherwise use any Proprietary Item as part of any effort to develop a program having any functional attributes, visual expressions or other features similar to those of the Platform or any Proprietary Item or to compete with Paynest;
9.2.7. remove, erase or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in any Proprietary Item, or fail to preserve all copyright and other proprietary notices in any Copy of any Proprietary Item made by Customer;
9.2.8. sell, market, license, lend, sublicense, distribute any right to use any Proprietary Item, whether on Customer's behalf or otherwise;
9.2.9. otherwise grant to any Person, excluding the Permitted Users, any right to use any Proprietary Item, whether on Customer's behalf or otherwise; or
9.3. Customer’s Assignment limitation. Customer shall not assign any of its rights, obligations, warranties or any other legal right arising out of this Agreement, to either third-parties, or Affiliates, without Paynest’s prior written consent. Customer must notify its intention to assign any of the foregoing and the purpose of such assignment, as well as the new number of Users and processed volumes, by submitting to Paynest a prior written notice at least thirty (30) calendar days, also certifying that (a) the Use of the Platform will not change, (b) the successor or its Affiliates is not a competitor of Paynest, (c) the successor or its Affiliates will not breach any of the terms of this Agreement, and (e) Customer guarantees that the assignee will fulfill the obligations and warranties the Customer has undertaken. Any purported assignment by Customer in breach of this Section will be considered as null and void.
10. Customer’s Indemnity
10.1. Customer’s Indemnity. Customer shall indemnify Paynest against all liabilities, costs, expenses, damages and losses suffered or incurred by Paynest arising out of legal proceedings that are initiated by a third-party in relation to the actual or alleged infringement of a third party's intellectual property rights in violation of the warranties in Section 9.1 (hereinafter, “Third-Party IPR Claim against Paynest”). In such a case, Customer retains the absolute discretion to determine the strategy which Paynest shall adopt in any relevant judicial proceedings, including the right to dispose of a Third-Party IPR Claim against Paynest by entering into binding settlement agreements.
11. Other Representations, Warranties and Limitations
11.1. Confidentiality and Disclosure Restrictions. All Confidential Information of the Disclosing Party in the possession of the Receiving Party shall be held in the strictest of confidence and the Receiving Party shall take all steps reasonably necessary to preserve the confidentiality thereof. Use or disclosure of Confidential Information shall not be permitted for any purpose except as necessary to implement or perform this Agreement, or except as required to fulfill the that Party's obligations under Applicable Law, provided always that, where permitted by Applicable Laws, the Party making such disclosure gives notice to the other Party prior to such disclosure, such that the other Party is given a reasonable opportunity to obtain a protective order. The Receiving Party shall:
11.1.1. limit its use of, access to and disclosure of the Disclosing Party's Confidential Information to only those of its employees, officers, representatives or professional advisers where such disclosure, use or access is required for the performance of its obligations, or the preservation or exercise of its rights, under this Agreement;
11.1.2. advise all such employees, officers, representatives and professional advisers, before they receive access to or possession of any of the Disclosing Party's Confidential Information, of the confidential nature of the Confidential Information and require them to abide by the terms of this Agreement; and
11.1.3. be liable for any breach of this Agreement by any of its employees or any other Person who obtains access to or possession of any of the Disclosing Party's Confidential Information from or through the Receiving Party.
11.1.4. Each Party shall, immediately upon becoming aware of the same, give notice to the other of any unauthorized disclosure, misuse, theft or other loss of Confidential Information of the other Party, whether inadvertent or otherwise.
Without prejudice to this Clause 11.1, Paynest may may provide Confidential Information to a Certified Payment Institution, if (in Paynest’s reasonable opinion) it is necessary or desirable for it to do so, to enable the EMI to carry out the instructions Paynest gives to Certified Payment Institution, under or in accordance with this Agreement or for purposes of facilitating the opening and setting-up of the Customer’s Account and in accordance with Part C.
11.2. Enforcement. Each Party acknowledges that the restrictions in this Agreement are reasonable and necessary to protect the other Party's legitimate business interests and that any breach of any of the provisions of Section 5.1, 8.1, 8.2, shall result in serious injury to the other Party for which money damages could not adequately compensate.
11.3. Non-Solicitation. Neither Party shall, or will attempt to, directly or indirectly (including through its Affiliates), solicit or entice away from the employment of the other Party any Person employed or engaged by such other Party in the provision and/or receipt of the Services, at any time from the Effective Dates of this Agreement, until 12 months after the termination of this Agreement other than by means of a publicized campaign, and not specifically targeted at any of the staff of the other Party. If either Party commits any breach of this Section, the breaching Party shall, on demand, pay to the claiming Party a sum equal to one year's remuneration cost, plus the recruitment costs incurred by the claiming Party in replacing such person. Both Parties agree that the foregoing sets out a fair and reasonable compensation for the damage suffered by other Party by the violation of this Section.
11.4. Compliance. Each Party warrants to the other Party that it is in compliance with all rules, laws and regulations as are applicable to it in the jurisdictions in which it is incorporated (or, if different have their principal place of business).
11.5. Data Privacy. Each Party shall comply with the responsibilities and obligations imposed upon them by the Data Processing Agreement.
12. Limitation of Liability
Paynest’s limitations
12.1. With the exclusion of 12.8, the maximum aggregate liability of Paynest under or in connection with a breach by Paynest of its obligations under this Agreement, howsoever arising (including by way of contract and/or under an indemnity or in tort, including negligence or any other theory of law), shall under no circumstances exceed the amount of the current Services Fee calculated on an annual basis up to month of occurrence of a respective breach, and as actually paid by the Customer to Paynest prior to the occurrence of the respective breach.
12.2. Paynest shall bear no liability under the indemnity in Section 7.1 unless Customer (a) gives written notice to Paynest within fifteen (15) calendar days of the existence of any Third-Party IPR Claim, (b) allows Paynest to have sole conduct of the defense, settlement negotiations and settlement of the Third-Party IPR Claim, (c) provides Paynest with such reasonable assistance as is reasonably required by Paynest regarding the Third-Party IPR Claim, and (d) ensures that it does not make any admissions or settlements concerning the Third-Party IPR Claim without the prior written consent of Paynest.
12.3. Without prejudice to the generality of Section 6, Paynest does not warrant that (a) the Platform will meet all of Customer’s requirements, or is of a particular quality or fit for any particular purpose, other than those described in this Agreement; (b) the operation or use of the Platform will be uninterrupted or error-free or that any errors will be corrected, other than as set out in this Agreement; and (c) the use of the Platform with any other software, or with inappropriate hardware, will not cause in disturbance to the Software or such other software. Any written, printed or other materials which Paynest provides to Customer are provided on an "as is" basis, without warranty of any kind.
12.4. No action or claim of any type relating to this Agreement may be brought or made by Customer more than one (1) year from the date of the actual occurrence of the respective breach and in any case no later than the Initial Services Term termination.
12.5. Paynest shall not be liable for any damage, loss, costs, claims or expenses of the Customer to the extent they arise from:
12.5.1. a change to the Customer's business requirements in relation to the agreed Scope of Use;
12.5.2. changes to Applicable Law following the Effective Date;
12.5.3. any unauthorized or improper use of the Software, such as use other that the Scope of Use; or
12.5.4. Customer’s breach of this Agreement.
12.6. Paynest shall have no liability with respect to the Customer's use of the Software at any time after the Support Termination Date.
Customer’s limitations
12.7. With the exclusion of 9.2, 12.8, the maximum aggregate liability of Customer under or in connection with a breach by Customer of its obligations under this Agreement, howsoever arising (including by way of contract and/or under an indemnity or in tort, including negligence or any other theory of law), shall under no circumstances exceed the amount of the current Services Fee calculated on an annual basis up to month of occurrence of a respective breach, and as actually paid by the Customer to Paynest prior to the occurrence of the respective breach.
General limitations
12.8. Non-excludable liabilities. Nothing in this Agreement shall limit or exclude either Party's liability for (a) fraud or fraudulent misrepresentation, (b) death or personal injury caused by its negligence, or (c) any other matter that may not otherwise be limited or excluded by Applicable Law.
12.9. Consequential Damages and Trading Losses exclusion. With the exception of 9.2, neither Party will be liable to the other, or any other person (whether in contract, tort (including negligence), for any breach of statutory duty, misrepresentation or otherwise) for any (a) loss of goodwill or reputation, (b) loss of opportunity, (c) loss of trade or business, (d) loss of revenue or profits, (e) loss of data, or any loss of use of, or access to, data, (f) any incidental, indirect, consequential, special, or punitive damages of any kind or nature whether or not foreseeable, even if a Party has been advised or was aware of the possibility of such loss or damages.
13. Term and Termination
13.1. The "Initial Service and Support Term" shall be one (1) month commencing on the Effective Date. Thereafter, Paynest shall continue to offer support services in exchange of the Services Fees for additional one-year periods (each a "Renewal Service and Support Term"), unless Customer gives Paynest written notice of its intention not to renew at least 10 days before the end of the Initial Service and Support Term or the then current Renewal Service and Support Term.
13.2. Termination by Customer. Customer may immediately terminate this Agreement, by giving written notice termination to the amount of the current Services Fee calculated on an annual basis up to month of occurrence of a respective breach, and as actually paid by the Customer to Paynest prior to the occurrence of the respective breach, upon the occurrence of any of the following events:
13.2.1. Paynest breaches any of its material obligations under this Agreement and, if such breach is capable of remedy, does not remedy the breach within thirty (30) calendar days after Customer gives written notice to Paynest describing the breach in reasonable detail. If the breach is not remedied in such thirty (30) day period, but the Parties have agreed the relevant steps to be taken to remedy the breach and a timetable for such steps to be taken, the thirty (30) calendar days deadline shall be deemed to be automatically amended in accordance with the agreed remedy timetable; or
13.2.2. Paynest suffers an Insolvency Event.
13.3. Termination by Paynest. Without prejudice to any other termination rights set out in this Agreement or pursuant the Applicable Law, Paynest may immediately terminate this Agreement, upon the occurrence of any of the following events:
13.3.1. Customer breaches any of its material obligations under this Agreement and, if such breach is capable of remedy, does not remedy the breach within thirty (30) calendar days after Paynest gives written notice to Customer describing the breach in reasonable detail. If the breach is not remedied in such thirty (30) day period, but the Parties have agreed the relevant steps to be taken to remedy the breach and a timetable for such steps to be taken, the thirty (30) calendar days deadline shall be deemed to be automatically amended in accordance with the agreed remedy timetable; or
13.3.2. Customer fails to promptly pay any sums due and payable under this Agreement within thirty (30) calendar days after Paynest notifies Customer in writing of such failure to pay; or
13.3.3. Customer suffers an Insolvency Event.
13.4. Expiration of Term: Unless otherwise agreed, if the Initial Service and Support Term or the then current Renewal Service and Support Term expires, this Agreement shall automatically terminate.
13.5. Effect of Termination.
13.5.1. Upon termination or expiry of this Agreement, Paynest (a) shall discontinue providing all Services (b) shall have no liability with respect to any warranties under this Agreement, notwithstanding if the incident related to such warranties refers to a period prior to the Support Termination Date, (c) shall have no liability with respect to Customer's use of the Platform, (d) will immediately be entitled to payment of all pending obligations of Customer with respect to the period up to the date of termination and of the amount corresponding to the Termination Compensation.
13.5.2. Upon termination or expiry of this Agreement, Customer shall: (a) discontinue all use of all the Platform, (b) promptly return to Paynest all copies of any affected Proprietary Items in the Customer's possession at that time, (c) give written notice to Paynest certifying that all copies of the Platform or any other Proprietary Item have been permanently deleted from its computers, and (d) remain liable for all pending obligations due to Paynest with respect to the period up to the date of termination and of the amount corresponding to the Termination Compensation.
13.5.3. In addition to the rights arising under the present Section of this Agreement, the provisions of Sections 5-12 and 14 shall survive any termination of this Agreement.
14. Other provisions
14.1. Notices.
14.1.1. Notice and Remedy of Breaches. Each Party shall promptly give written notice to the other of any actual or suspected breach of any of the provisions of this Agreement, whether or not intentional and the breaching Party shall at its expense take all necessary actions to prevent or remedy the breach.
14.1.2. All notices and other communications regarding this Agreement shall be in writing and shall be deemed to have been received on the earlier of the date of actual receipt, or the third (3rd) business day after being mailed by first class certified air mail or reputable overnight delivery service. Any notice may be given by facsimile, or email, provided that a signed written original is sent by one of the foregoing methods within twenty-four (24) hours thereafter. Especially for invoices and payment notifications, they may be sent by facsimile, or email, subject to Customers confirmation of receipt. Customer's address for notices is as defined in the Paynest Contract. Paynest’s address for notices is Paynest Portugal, Rua Augusto Macedo, nº 12 D, Escº 5, 1600 794 Lisboa, Portugal. Either Party may change its address for notices, or any other corporate details, by giving written notice of the new details to the other Party in accordance with this section.
14.2. Parties in Interest. This Agreement shall bind, benefit and be enforceable by and against Paynest and Customer and to the extent permitted hereby, their respective successors and assigns.
14.3. Assignment. Neither Party shall assign this Agreement or any of its rights hereunder, nor delegate any of its obligations hereunder, without the other Party’s prior written consent. The other Party’s written consent shall not be unreasonably withheld in case that:
14.3.1. the Customer requests it, provided that the assignment is being done to (i) an Affiliate of the Customer and (ii) does not result into any change to the Services or the Scope of Use.
14.3.2. Paynest requests it, provided that the assignment is being done to an Affiliate of Paynest.
If the conditions set out either in 14.3.1 or 14.3.2 and consent from the other Party is not provided within ten (10) days from the filing of the relevant request or it is denied unreasonably, the assignment shall be deemed to be in full force and effect. Any assignment failing to meet the aforementioned conditions conducted by either Party in breach of this Section shall be null and void.
14.4. Relationship. The relationship between the Parties created by this Agreement is that of independent contractors and not partners, joint ventures or agents.
14.5. Third-Party Rights. A person who is not a Party to this Agreement shall not acquire any rights under it or be entitled to benefit from any of its terms. The rights of the Parties to vary or terminate this Agreement are not subject to the consent of any other person.
14.6. Entire Agreement. This Agreement constitutes the entire agreement and understanding of the Parties with respect to the subject matter of this Agreement and supersedes any prior agreements, representations, understandings or arrangements between the Parties (oral or written) in relation to such subject matter. Each Party acknowledges that: (a) upon entering into this Agreement, it does not rely, and has not relied, upon any representation (whether negligent or innocent), statement or warranty made or agreed to by any person (whether a Party to this Agreement or not) except those expressly set out in this Agreement; and (b) the only remedy available in respect of any misrepresentation or untrue statement made to it shall be a claim for breach of contract under this Agreement. Nothing in this Section shall limit or exclude any liability for fraud.
14.7. Modification and Waiver. No modification, or waiver of any breach of this Agreement, shall be effective unless performed in writing and signed by an authorized representative of the Party against whom enforcement is sought. Unless otherwise provided herein, under no circumstances shall any omission or delay of the Parties to exercise their legal or contractual rights arising out of this Agreement result in the weakening of such rights, be construed as a waiver or abandonment of such rights.
14.8. Publicity. Each Party shall be permitted to publicize the existence of this Agreement, provided that the other Party shall be provided with an opportunity to review and provide comment upon the contents of any such publicity materials before such materials become public. Without prejudice to the foregoing indent, Paynest may use the Customer’s name and/or logo on its website solely for purposes of mentioning the existence of the business relationship governed under this Agreement.
14.9. Newsletters. Each Party accepts to receive from the other, newsletters and other information.
14.10. Awareness Plan. The Parties must agree on the Awareness Plan no later than two weeks from the Effective Date.
14.11. Severability. Each of the provisions contained in this Agreement shall be construed as independent of every other such provision, so that if any provision of this Agreement shall be determined to be illegal, invalid or unenforceable, then such determination shall not affect any other provisions of this Agreement.
14.12. Force Majeure. Neither Party shall be considered in breach of this Agreement (other than its payment obligations), as a result of a cause beyond its control, including (a) any act of God, (b) devastating fire, flood, earthquake, storm, (c) a public enemy, (d) military actions, (e) significantly adverse civil or regulatory authority actions, or change in any law or regulation, (f) permanent disruption of communications, power, other utility, unavailability of supplies or labor problems, or (g) any other cause, which could not have been prevented or mitigated by the non-performing Party with reasonable care.
14.13. Neither Party shall have any other rights or remedies against the other, except as specifically provided in this Agreement.
14.14. Applicable Law and Dispute Resolution. This Agreement shall be governed by the laws of Portugal. Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and resolved by the courts of Lisbon, Portugal.
14.15. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. This Agreement may be executed by means of electronic e-signature applications; in which case each counterpart shall be deemed an original.
