Covatic Solutions – Terms and Conditions (“Terms”)

1. Interpretation

The following definitions apply in the Agreement:

Affiliate: any company that controls, is controlled by, or is under common control with a party.

Agreement: the Order, these Terms, the DPA, and any other agreed Annexes.

Client: the party contracting the Solutions, as named in the Order.

Client Data: any data provided to Covatic by or on behalf of Client, or collected or generated by Covatic on Client’s instructions.

Client Products: the digital properties owned or operated by Client for which the Solutions are authorised for use, as set out in the Order or otherwise agreed in writing.

DPA: the Covatic DPA available at [link] which shall be incorporated into the Agreement (unless the parties have agreed in writing to other equivalent data processing terms).

Effective Date: as set out in the Order.

Fees: the fees and expenses payable by Client for the Solutions, as set out in the Order.

Intellectual Property Rights: all copyright and related rights, moral rights, patents, rights to inventions, trademarks, trade, business and domain names, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, computer software, databases, and confidential information (including know-how, methodologies and trade secrets), and any other intellectual property rights, in each case whether registered or unregistered.

Liability Cap: any aggregate limitation on liability set out in the Order.

Order: Covatic’s order form to which these Terms are attached or incorporated, or Client’s order form for the Solutions which has been agreed in writing by Covatic and which is subject to these Terms.

Solutions: (1) Covatic’s proprietary SDK, code, software, and platform, and all associated documentation, technology and software, and/or (2) any other agreed services to be provided by Covatic.

SLA: the Service Level Agreement set out in Schedule A to these Terms.

Term: the Initial Term and Renewal Term(s) (if any) set out in the Order.

Territory: the Territory authorised for use of the Solutions as set out in the Order.

If there is a conflict between provisions in different parts of the Agreement, the following order of precedence shall apply: (i) the Order; (ii) the DPA; and (iii) these Terms.

2. The Solutions

2.1 Subject to the terms of the Agreement, Covatic will provide to Client:

(a) a licence to use the Solutions with the Client Products;

(b) support services in accordance with the SLA; and

(c) any development, training, or other services set out in the Order or agreed separately in writing.

2.2 Client shall not sublicence or transfer any of its rights under the Agreement or use any of the Solutions to: (a) provide services to third parties; or (b) build a product or service which competes with Covatic’s business.

2.3 Covatic grants to Client a non-exclusive, non-transferable licence to use the Solutions with the Client Products in the Territory, for the Term, subject to the terms of the Agreement. Client shall not and shall not permit others to: modify, adapt, create derivative works from, deconstruct, reverse engineer, decompile or disassemble the Solutions, except to the extent expressly permitted by applicable law.

2.4 Where the provision of the Solutions involves the processing of any personal data by Covatic on Client’s behalf, such processing shall be governed in addition by the provisions of the DPA.

2.5 Subject to any other agreement in writing, Covatic may implement updates, modifications, or substitutions to the Solutions from time to time, provided that they do not materially adversely affect the functionality of the Solutions.

3. Acceptance

Client will test the Solutions and any customizations and notify Covatic of any non-conformity with the agreed requirements and specifications. Covatic will endeavour to rectify such non-conformity as soon as practicable and in accordance with any agreed timetable. The Solutions and any deliverables will be deemed to be accepted upon the earliest of: (i) indication by Client of Client’s acceptance; (ii) live use by Client; or (iii) 15 days after provision or delivery (including delivery of any fixes or updates provided in accordance with this Section).

4. Authorised Users

Client’s access to the Solutions shall be limited to authorised users nominated or replaced by Client from time to time, who will be allocated a username and password by Covatic. Client shall, and shall ensure that each authorised user shall: (a) keep usernames and passwords confidential; (b) endeavour to prevent any unauthorised access to, or use of, the Solutions; and (c) notify Covatic promptly of any such unauthorised access or use. Covatic shall not be liable for any loss or damage resulting from any failure to comply with this Section.

5. Charges and Payment

5.1 Covatic shall invoice Client for the Fees as set out in the Order, or if nothing is specified, monthly in advance for licence fees and monthly in arrears for usage-based fees. Pricing does not include VAT, or sales or similar taxes, which where applicable shall be added to Covatic’s invoices at the required rates.

5.2 Subject to the Order or other agreement between the parties, Covatic may charge to Client Covatic’s reasonable expenses for transportation, lodging, meals and living expenses, related to Covatic’s attendance at Client’s premises in connection with provision of the Solutions.

5.3 Invoices are due and payable as set out in the Order or if nothing is specified 30 days after the invoice date, in full and without deduction, withholding or set-off.

5.4 In addition to Covatic’s other rights or remedies, if Client fails to make any payments in accordance with the Agreement, then Covatic shall be entitled to:

(a) suspend the provision of any Solutions until all overdue payments are made; and

(b) interest on the unpaid amounts at a rate of 1% per month, from the due date until fully paid, whether before or after judgment, plus Covatic’s actual costs of collection.

6. Term and Termination

6.1 The Term shall commence on the Effective Date and shall continue in effect until termination or expiry in accordance with these Terms and the Order.

6.2 Subject to any other provisions agreed in the Order:

(a) at the end of the Initial Term and each Renewal Term, the Agreement will automatically renew for additional consecutive Renewal Terms of 12 months each;

(b) either party may terminate the Agreement on not less than 60 days written notice to the other party, such termination to only take effect on the expiry of the Initial Term or the Renewal Term then in effect.

6.3 The Agreement can be terminated early by written notice by a party if the other party:

(a) is in material breach of the Agreement, and if such breach is remediable, fails to remedy such breach within 21 days of a written request to do so; or

(b) ceases trading (or threatens to cease trading), is the subject of a winding up or bankruptcy petition or order, makes any arrangement with its creditors for the payment of its debts, is incapable of paying its debts as they fall due, or in general becomes insolvent under applicable law.

6.4 On termination of the Agreement for any reason:

(a) all licences to use the Solutions shall terminate;

(b) Client shall immediately cease use of the Solutions;

(c) all outstanding Fees shall immediately become due and payable; no refund or reduction of Fees shall be made, unless termination is by Client under Section 6.3(a) or Section 12, in which case Client shall exceptionally be entitled to a refund of prepaid fees relating to the unused portion of the Term; and

(d) subject to the terms of the DPA, each party shall return, or at the option of the Disclosing Party destroy, all Confidential Information and personal data of the other party.

6.5 The accrued rights and remedies of the parties, and any provisions of the Agreement that from their context are intended to survive, shall survive termination of the Agreement for any reason.

7. Intellectual Property Rights

7.1 All Intellectual Property Rights in the Client Data shall remain with Client and/or its licensors.

7.2 Covatic and/or its licensors own all Intellectual Property Rights in the Solutions. Covatic does not grant Client any Intellectual Property Rights in respect of the Solutions, except for the licences expressly provided for in the Agreement.

7.3 Covatic warrants that the Solutions, where used in accordance with the Agreement and documentation will not infringe any Intellectual Property Rights of any third party.

7.4 If any third party action is likely to prevent Client from using the Solutions, and such action is not attributable to Client Data, third-party services, or to Client’s misuse of the Solutions, then Covatic shall, at Covatic’s option and expense, and as Client’s exclusive remedy in relation to such action: (a) procure for Client the right to continue using the Solutions; or (b) replace or modify such Solutions so that they become non-infringing; or (c) terminate the Agreement and refund any Fees prepaid in respect of the unused period of the Term.

7.5 Client hereby grants Covatic a royalty-free, non-exclusive, non-transferable and sublicensable licence to store and use the Client Data to the extent necessary to provide the Solutions.

7.6 Client warrants that Client and/or its licensors have all necessary Intellectual Property Rights in Client Data and that Covatic’s storage and use of Client Data in accordance with the Agreement will not infringe any rights of any third party.

7.7 Covatic shall be entitled to collect, extract, analyse and use data resulting from Client’s use of the Solutions for improvement of the Solutions, provided such use must be in aggregated and anonymised form and without using any Client Data or Client Confidential Information.

8. Confidentiality / Promotion

8.1 “Confidential Information” means any information relating to the business of a party, including: in the case of Client the Client Data and Client Products; and in the case of Covatic the Solutions.

8.2 Confidential Information excludes any information which:

(a) is or becomes publicly known other than through a breach of the Agreement;

(b) was in the receiving party’s lawful possession before receipt from the other party;

(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

(d) is independently developed by the receiving party.

8.3 Each party shall keep the other’s Confidential Information confidential and not disclose it to any third party, except to its Affiliates, professional advisors or independent contractors that need to know it in connection with the Agreement and are subject to an equivalent duty of confidentiality. Neither party shall use the other’s Confidential Information for any purpose other than performance of its obligations or exercise of its rights under the Agreement. Use of third-party tools or processors to process Confidential Information shall not be a breach of these Terms, provided that the receiving party ensures that each third-party also complies with equivalent confidentiality and non-use obligations.

8.4 Where any Confidential Information of the other party is required to be disclosed by law, or order of a court, regulatory or government body, then the receiving party may comply with such requirements, but, unless prevented by applicable law, shall first notify the other party with a view to allowing the other party to seek a protective order.

8.5 On request from the disclosing party at any time, the receiving party shall return or, at the option of the disclosing party, destroy all Confidential Information of the disclosing party. Any information required to be retained by law or stored in back-up systems shall be used for no other purpose and deleted as soon as practicable.

8.6 This Section shall survive termination of the Agreement.

8.7 Each of the parties may refer to the other party as its customer or supplier (as applicable) on its websites, in its marketing materials, and in negotiations with third parties, unless notified otherwise by the other party.

9. Compliance With Laws

9.1 Each party shall at its own expense comply with:

(a) all applicable laws and regulations, and any licences, registrations, permits and approvals, relating to its activities; and

(b) all applicable laws and regulations relating to prevention of bribery and corruption, including as applicable the UK Bribery Act and the US Foreign Corrupt Practices Act.

9.2 Each party shall: (a) ensure that any person associated with it who is performing services in connection with this Agreement does so only on the basis of a written contract with terms equivalent to those imposed in this Section; and (b) be responsible for the observance and performance by such persons of such contract.

10. Warranties

10.1 Covatic warrants that it: (a) will provide the Solutions using reasonable care and skill; (b) has all necessary rights to grant to Client the right to use the Solutions as set out in the Agreement; and (c) uses good industry practices to avoid viruses and other malicious code within the Solutions.

10.2 Except as expressly set out in the Agreement including in particular the SLA, and to the maximum extent permissible under applicable law, the Solutions are provided ‘as is’ and all other terms that might otherwise be implied are hereby excluded.

10.3 Client warrants that in using the Solutions it will not infringe any applicable law or regulation (including data protection laws) or third party rights.

11. Liability

11.1 Nothing in the Agreement limits or excludes the liability of a party for:

(a) death or personal injury caused by that party’s negligence;

(b) fraud, fraudulent misrepresentation, or wilful default; or

(c) any other liability that may not be limited or excluded under applicable law.

11.2 Subject to Section 11.1, neither party shall be liable for any:

(a) economic losses (e.g. loss of revenues, profits, contracts, business or anticipated savings);

(b) loss of goodwill or reputation;

(c) damage to any device or digital content; or

(d) indirect losses,

arising out of or in connection with the Agreement or the Solutions.

11.3 Covatic will indemnify Client for losses arising out of a third party claim against Client that their use of the Solutions (excluding any Client Data, or third party services) infringes the Intellectual Property Rights of such third party.

11.4 Subject to Sections 11.1 and 11.2, Covatic’s aggregate liability for all claims arising in any way out of or in connection with the Agreement and the Solutions, whether in tort (including negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), indemnity, or otherwise, shall be limited to the Liability Cap (or if none specified 12 months’ Fees paid or payable under the relevant Order).

11.5 A party must take reasonable steps to minimise and, if possible, avoid any loss and damage which it seeks to be indemnified for or otherwise claim from the other party under or in connection with the Agreement.

11.6 A party claiming indemnity from the other party under this Agreement must in connection with the relevant claim: (i) notify the indemnifying party as soon as practicable; (ii) not make any statement prejudicial to its defence or settlement; (iii) provide all reasonable assistance; and (iv) permit the indemnifying party to control its defence and/or settlement.

12. Force Majeure

Neither party shall be liable for any failure to perform its obligations under the Agreement (except for payment obligations or compliance with laws) if that failure is a result of circumstances beyond its reasonable control. If failure continues for a continuous period of 60 days, the unaffected party may terminate the Agreement by giving 30 days’ written notice to the other party.

13. General

13.1 No failure or delay by a party in exercising any right under the Agreement will operate as a waiver, and a waiver of any right shall only be effective if it is in writing.

13.2 If any provision of the Agreement is found to be invalid, unenforceable or illegal, this shall not affect the validity and enforceability of the rest of the Agreement.

13.3 The Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, representations and arrangements (either oral or written) with regard to its subject matter. Any terms separately proposed or presented by Client are hereby excluded, unless expressly agreed to in writing by Covatic. The Agreement may only be amended in writing duly executed on behalf of each party.

13.4 Either party may assign or novate the Agreement or its rights or obligations under the Agreement to its Affiliates, or to a purchaser of its business to which the Agreement relates. Any other assignment or transfer of any such rights or obligations shall require the prior written consent of the other party.

13.5 Except for Client Affiliates as expressly provided in the Agreement, no person other than the parties shall derive any rights from or be entitled to enforce any provision of the Agreement.

14. Governing Law And Jurisdiction

The Agreement shall be governed by, and construed in accordance with, English law and the parties hereby submit to the exclusive jurisdiction of the English courts in relation to any dispute arising out of or in connection with them.

SCHEDULE A: SLA

1. Availability

Covatic will use commercially reasonable efforts to maintain Solution availability of 99% measured monthly.

Excludes: scheduled maintenance (with 7 days’ notice), Client-caused issues, force majeure events.

2. Support

Response Times (UK business hours, 9am-5pm Monday-Friday):

• Critical (service unavailable): 2 hours
• Non-critical issues: 24 hours

Contacts:

• [email protected]
• www.support.covatic.com

3. Remedies

For availability below 99% in any month, Client’s sole remedy is a service credit against the Fees of:

• 98-98.9%: 10% of monthly fee
• Below 98%: 25% of monthly fee

Credits will be applied to the next invoice. Maximum credit per month is 25% of monthly Fee.

4. Limitations

This SLA is Client’s sole remedy for issues affecting the Solutions. The Client must report issues within 5 days to claim credits.