THIS SERVICE AGREEMENT (“AGREEMENT” OR “SERVICE AGREEMENT”) REGULATES ACCESS TO AND USE OF THE SERVICES OFFERED BY UNNAX PAYMENT SYSTEMS, S.L. (“UNNAX”) AND ESTABLISHES THE TERMS AND CONDITIONS THAT SHALL APPLY TO THE USE OF THE SERVICES (AS DEFINED BELOW).
UPON ACCESSING OR USING THIS SERVICE, THE CLIENT AGREES TO COMPLY WITH THE CONDITIONS OF THIS AGREEMENT.
UNNAX grants the CLIENT a limited licence, which is non-exclusive and non-transferable (without the right to be sub-licensed), during the Service term specified in the Order Form, to (a) have remote access to and use of the UNNAX Platform, as described in the Order Form, (b) download, install and use the CLIENT’s libraries in relation to the CLIENT’s use of the Service. The Service will be made available to the CLIENT only as provided by or on behalf of UNNAX, and nothing in the Agreement may be understood as assigning to the CLIENT any right to receive any copy of the Service or software (other than the Client’s Libraries). The CLIENT’s access to and use of the Service shall be subject to the conditions set out in the Order Form and in the Documentation being met (for example, any requirement relating to the format of the data, the number of Users or forbidden uses).
1.2. Access to the Service and availability
(a) CLIENT Systems. The CLIENT will be responsible for (i) the necessary equipment, subscriptions and credentials to enable UNNAX to receive CUSTOMER Data, as well as for (ii) the servers, devices, storage, programs (other than the CLIENT Libraries), databases, networks and communication equipment and auxiliary services necessary to establish the connection, to access or in any way to use the Services in their facilities (collectively, the “CLIENT Systems”). The CLIENT guarantees that all the CLIENT Systems are compatible with the Service and that they comply with all the settings and specifications described in the Documentation.
(b) Access to the Service. As part of the implementation process, the CLIENT will be sent a link to their email address so that they can set a password with administrator permissions, which will be required to configure the CLIENT’s account. The CLIENT may use the main user account and the password to create sub-accounts for their Users (each of which will have their corresponding login ID and password). The CLIENT will be responsible for any acts or omissions of any person that accesses the Service using the passwords or access processes provided or created by the CLIENT. UNNAX reserves the right to reject the registration of, or to cancel, any login IDs that breach the terms and conditions established in this Agreement. Upon becoming aware of it, the CLIENT shall immediately inform UNNAX of any unauthorised use of the CLIENT’s account or of any other security failure or problem. UNNAX staff may
periodically access the Service on behalf of the CLIENT for the purpose of maintaining and improving the Service, including to offer the CLIENT technical support in relation to technical aspects or invoicing. The CLIENT declares that they understand and, where necessary, agree to UNNAX staff accessing the Service in this way. Such access will be obtained using a UNNAX user account, and under no circumstances will access be gained through the users’ individual accounts or under the identity of the CLIENT’s Users.
1.3. Availability of the Service
UNNAX will make reasonable commercial efforts to maintain the availability of the Service, subject to outages resulting from maintenance, repairs and updates. Insofar as possible, UNNAX will endeavour to notify the CLIENT, by electronic means via the Service, of any scheduled Service suspensions. Notwithstanding the above, UNNAX will not be liable for any failures in the Service or for any other problems related to (a) the CLIENT Data or the CLIENT Systems, or to (b) outages in the telecommunication networks or internet access providers, networks or servers, or other equipment or services that are located outside UNNAX’s facilities or are beyond its control.
1.4. Support for the Service
UNNAX will provide the CLIENT email and telephone support for use of the Service during UNNAX’s business hours. The CLIENT agrees that UNNAX will not be responsible for providing support in relation to problems, errors or enquiries related to the CLIENT Systems.
- FREE DEMO
If UNNAX has offered the CLIENT a free demo, UNNAX will offer them one or more Services in the form of a free trial. This trial will be available until (a) the end of the free trial period for which the CLIENT has registered in connection with the applicable Services, or (b) the start date of any subscription to the Services set by the CLIENT, or (c) UNNAX ends the trial, at its sole discretion. The free trial may be subject to additional terms and conditions, as specified on the UNNAX website at any given time. These additional terms and conditions will be considered to be incorporated by reference to this Agreement, and they will be considered legally binding.
- LICENCE RESTRICTIONS AND CLIENT OBLIGATIONS
3.1. Licence restrictions
The CLIENT may not, directly or directly: (i) use the Service or any of the Property or Confidential Information to create any service, software or documentation that performs substantially the same functions as the Service; (ii) dismantle or apply reverse engineering to the software, or try to discover the source code, algorithms or trade secrets relating to the Services by any other means, except to the extent permitted by the applicable law; (iii) charge for, sub-license, transfer, distribute, lease out, rent, share or use any Property of UNNAX in relation to other service agreements or for the benefit of any third party; (iv) copy, reproduce, translate, adapt, combine, create derivative works or in any other way modify any Property of UNNAX; or (v) use or allow the use of the Services to store or transfer any CLIENT Data that is being handled for the purpose of carrying out exports, in accordance with the Export Control Laws or any other relevant jurisdiction for this purpose.
3.2. Unauthorised use of the Service
The CLIENT may not, directly or indirectly: (i) use the Service in any way not authorised in this Service Agreement or in the Order Form, (ii) interfere or attempt to interfere with the proper operation of the Service or any activity carried out in the Service; (iii) avoid any privacy options or measures that UNNAX might use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); or (iv) use manual or automated software, devices or other processes to track any content on the UNNAX Platform.
3.3. Personal data protection
Due to the nature of this Agreement, during the course of providing the Services to the Client, UNNAX may have access to personal data belonging to the CLIENT (“Personal Data“).
In this regard, the Parties agree to comply with the provisions established in EU REGULATION 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (“GDPR“).
In particular, the Parties shall adhere to the Data Processing Addendum (DPA), which forms part of the Agreement and which establishes the purpose and duration of the data processing, the nature and form of the data processing, the type of Personal Data to be processed and the categories of the affected persons, as well as the rights and obligations of both Parties in relation to Personal Data, each acting in a reasonable and bona fide manner.
- ORDER FORMS, PRICE AND PAYMENT
4.1. Order Forms
The Parties may agree one of more Order Forms in virtue of this Agreement. Each Order Form should specify the Services to be provided, the price of the Service, the period during which the Services are to be provided, the invoicing terms, and any other terms agreed between the parties. UNNAX will only be responsible for rendering the Service identified in an Order Form, during the period specified in that Order Form.
4.2. Price of the Service
The CLIENT shall pay the price corresponding to the use of the Service (“Price of the Service“), for the amount and in accordance with the invoicing schedule established in the Order Form.
4.3. Payment terms
Payments are to be made in Euros into UNNAX’s account, in full and without any amounts being offset, counterclaimed or deducted, within fiveteen (15) days of the invoice date. In the event of non-payment, UNNAX may demand a late payment interest of 1.5% per month, or the maximum amount permitted by law, whichever is greater. The CLIENT undertakes to refund UNNAX for all expenses (including lawyers’ fees) incurred by UNNAX in the process
of collecting late payments. UNNAX may also, entirely at its discretion, suspend the CLIENT’s access to the Service or terminate this Agreement if the CLIENT falls behind with their payments of the amounts owed to UNNAX.
The CLIENT shall be responsible for paying any applicable Taxes and it shall pay UNNAX for the Services rendered, without any form of reduction being applied to the corresponding amounts. In the event that UNNAX is obliged to collect or pay Taxes, in accordance with the applicable regulations, they will be invoiced to the CLIENT, unless the CLIENT provides UNNAX a valid tax exemption certificate issued by the pertinent tax authority.
Confidential Information means all technical, legal, economic, commercial, organisational or any other type of data corresponding to either of the Parties which, due to its nature, could be considered confidential, regardless of the format it is in or the means used to disclose it. This term also encompasses any analysis, compilation, study, summary or statement that either of the Parties, or both of them jointly, has produced based on the information/documentation initially disclosed by either of them. In particular, (a) the Service, the Property of UNNAX and information on prices will be considered Confidential Information belonging to UNNAX, and (b) CLIENT Data (including personal data) will be considered Confidential Information belonging to the CLIENT.
In relation to the Confidential Information, both Parties undertake (i) to keep it secret, including to not disclose the information, not only to any third parties but also to any unauthorised persons in virtue of this Agreement; (ii) to adopt all necessary measures aimed at preventing third parties not authorised by the data’s owner from gaining knowledge of this information. Following on from this, each of the Parties shall protect the other Party’s Confidential Information using the same protection measures that they use to protect their own Confidential Information, and never using measures that are inferior to those that would be reasonably required in view of the nature of the information and the state of technology at any given time; (iii) not to use the Confidential Information, whether directly or indirectly, for any purpose other than the provision of the Services; (iv) to restrict access to the Confidential Information to only those employees, whether internal or subcontracted, who need to have knowledge of this data for the purpose of executing the Contract; (v) not to reproduce or copy the Confidential Information, unless it is essential in order to comply with the provisions of this Agreement or the Party to which the data belongs has given their prior consent in writing.
5.3. Obliged disclosure
In the event that either of the Parties is required by any judicial or administrative authority to provide Confidential Information regarding the other party, they shall inform the other party beforehand and will restrict the disclosure of the Confidential Information insofar as the requirement allows them to.
- OWNERSHIP RIGHTS
6.1. Generated Data and CLIENT Data
The CLIENT shall be the owner of all the rights, titles and interests (including all intellectual and other property rights) relating to the Generated Data, the CLIENT Data and the CLIENT Systems. The CLIENT grants UNNAX a non-exclusive right, free of charge and with a licence to access, use, copy, process and store the CLIENT Data, for the sole purpose of rendering the Service. The CLIENT is aware and agrees that the Service depends on the availability of the CLIENT Data. The CLIENT shall be the only party responsible for the CLIENT Data gathered from the Users during the CLIENT’s use of the Services, including in relation to the accuracy and integrity of this information. Unless otherwise established in the Order Form, UNNAX will have no obligation to store the CLIENT Data or the Generated Data. Except for the rights and limited licences granted herein, no other licences are granted, no other use is permitted, and the Client will keep all the rights, titles and interests (including all intellectual and other property rights over it) relating to the Generated Data, the CLIENT Data and the CLIENT Systems.
6.2. Feedback on the Service
The CLIENT may, at its own discretion, propose changes, modifications or improvements to the Service (“Feedback”). Any Feedback generated shall exclusively belong to UNNAX (including any intellectual property rights derived from it) and will be considered Confidential Information belonging to UNNAX. The CLIENT undertakes to carry out whatever procedures are necessary to formerly establish its right over this property.
6.3. Property of UNNAX
The CLIENT declares that they understand and agree that the UNNAX Platform, including the UNNAX Software and any other associated software, hardware and documentation, has been created by UNNAX, which retains all intellectual, industrial and any other property rights over it, and that it may not be modified, copied, altered, reproduced, adapted or translated by the CLIENT.
The structure, characteristics, codes, working methods, information systems, development tools, know-how, methodologies, processes, technologies and algorithms of the UNNAX Platform are the property of either UNNAX or its suppliers, in which latter case they have been licensed or assigned by the suppliers, and they are protected by Spanish or international intellectual and industrial property regulations. Furthermore, they may not be modified, copied, altered, reproduced, adapted or translated by the CLIENT.
As a result, it is strictly forbidden for the CLIENT to use the UNNAX Platform or the Associated Materials in any way without UNNAX’s authorisation, including its operation, reproduction, promotion, transformation, distribution, transmission by any means, subsequent publication, exhibition, public disclosure or full or partial representation. Any such uses will constitute infringements of UNNAX’s intellectual or industrial property rights, punishable in accordance with current legislation.
6.4. Aggregate data
The CLIENT agrees that UNNAX has full freedom (i) to obtain, use and create works derived from the data related to the use of the Service and performance derived from the Generated Data; (ii) to aggregate this data with other data to create compilations and analyses of this data (“Aggregate Data”); and (iii) to use, copy, modify, create derivative works, and to publish and share this Aggregate Data such that it cannot be connected, neither directly nor indirectly, with the CLIENTS or with any individual. UNNAX will be the owner of any rights, titles and interests related to the Aggregate Data and to any derivative works. In addition, UNNAX will enjoy full freedom to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) acquired during the provision of the Service (including, and without any limitation, any that are acquired while providing the same or similar services for another client).
- GUARANTEES AND LIMITATIONS
7.1. CLIENT Data
In relation to the CLIENT Data, the CLIENT declares and guarantees that they own all the corresponding rights, titles and interests, or that they possess whatever licence rights are necessary to allow them to use this data in the manner set out in this Agreement.
UNNAX declares and guarantees to the CLIENT that the Service will be rendered in a professional manner, in accordance with the terms of this Agreement and the Documentation. Any guarantee claim in relation to this clause 7.2 should be made in writing, within thirty (30) days of when the services to which the claim relates are rendered. In all cases, UNNAX’s responsibility shall be limited to correcting or reperforming the Service that the CLIENT considers to have been provided in an unsatisfactory manner, this being the only right that the CLIENT may demand.
Except for what is specifically established in this clause 7, insofar as it is permitted by law, each Party must renounce (for themselves, their subsidiaries and their suppliers) all guarantees and declarations, whether express or implicit, oral or written, including and without limitation any guarantees regarding the compliance, commercial viability and suitability of any aspect in particular, as well as any guarantees arising during the course of negotiations, during the execution of the Services or during the commercial agreements reached. Notwithstanding the above, UNNAX does not offer any guarantee that the Service will comply with the CLIENT’s requirements or that it will operate uninterruptedly, without errors or free of viruses.
UNNAX will accept liability for any damages caused by its own fault or negligence as a result of its actions. This liability will not, under any circumstances, exceed the indemnity corresponding to the Price of the Service paid by the CLIENT to UNNAX during the latest annual period when the event giving rise to the indemnity occurs.
The Parties will not be liable under any circumstances for any indirect, unforeseen, special or accidental damages, including loss of profits, income, data or use suffered by either of the
Parties or by a third party, even if the other Party or any other person has been warned of the possibility of such damages. As a result, the CLIENT – and not UNNAX – will be obliged to make backup copies on a sufficiently frequent basis, as well as to implement security measures and to obtain licences for and to implement antivirus, firewall, or any other types of programs necessary to maintain the integrity, confidentiality and security of the CLIENT’s data and systems.
UNNAX shall not be held responsible by the CLIENT in the following situations, among others: (i) if the Software is not used in accordance with the documentation provided to the CLIENT by UNNAX; (ii) if the failure is caused by manipulation of the Software that was not previously authorised by UNNAX, or if it is caused by third-party software.
- THIRD-PARTY CLAIMS
The CLIENT agrees (i) to defend UNNAX against any third-party demand or claim that are caused by, or arise as a consequence of, (a) the CLIENT’s failure to comply with its obligations set out in clause 3 above, (b) the CLIENT’s failure to comply with the declarations and guarantees established in clause 7.1 above, or (c) any infringement of the personal rights of any third-parties related to the CLIENT’s use of the Services; and (ii) to compensate UNNAX in relation to any loss that is declared by a court or lawful judge or that is agreed in an out-of-court settlement in relation to such a demand or claim; insofar as (i) UNNAX immediately notifies the CLIENT in writing and cooperates, provides information and reasonable assistance in relation to the demand or claim, and (ii) the CLIENT has direct control to defend themselves and to reach any agreements in relation to this demand or claim.
- TERM AND CANCELLATION
10.1. Term of the Agreement
The Agreement will begin on the Effective Date and will remain in force until (i) one of the Parties notifies the other in writing of the termination of the Agreement, with thirty (30) days advance notice, provided that there is no Order Form in force at the time; or (ii) in the event of one or more Order Forms being in force, when the last point of such order forms expires; whichever occurs later.
10.2. Term of Order Forms
The initial term will be that which is set in the Order Form (“Initial Term”). Order Forms will be renewed automatically for additional periods of one (1) additional year (“Renewal Term”), when the Initial Term and each of the Renewal Terms come to an end (the Initial Term and the Renewal Term together will be considered a “Term”), unless either of the parties informs the other in writing of their desire not to renew, with a minimum of thirty (30) days advance notice prior to the end of the Term. Order Forms may not be cancelled, except for as set out in section 10.3 below.
10.3. Cancellation of Order Forms
Order Forms may be cancelled by either of the Parties if the other Party substantially breaches the Agreement or the Order Form in question and this breach is not resolved within thirty (30) days of the other Party being informed about it in writing.
10.4.Effects of Termination
In the event of the cancellation or termination of this Agreement (including the Order Forms): (i) any rights granted by either of the parties to the other will immediately cease; (ii) UNNAX will allow the CLIENT to access and export the CLIENT Data, subject to UNNAX’s rates that are in force at that time in relation to the Services in question; (iii) after a period of ninety (90) days, UNNAX will delete the CLIENT Data, removing all indicators to the CLIENT Data from UNNAX’s activated and replicated servers; and (iv) each Party, at the other’s request, will carry out whatever efforts are reasonable in order to immediately return or destroy any Confidential Information belonging to the requesting party that is held by the recipient of the request.
- GENERAL CLAUSES
11.1. Whole Agreement
This Agreement and its Appendices constitute a whole agreement between the Parties in relation to its subject matter, replacing and cancelling any negotiations, commitments, pacts and communications, whether verbal or written, that have been reached in this regard prior to this document being signed. This excludes, by mutual agreement, the application of any other terms and conditions.
If any of the clauses of this Agreement were to be rendered null and void, invalid or were to no longer apply between the Parties, regardless of the cause, the remaining clauses of this Agreement will remain valid and enforceable upon the Parties. An exception to this is if the provisions or payments covered by the null and void, invalid or non-applicable clause have been determining factors in the offer or its acceptance such that, without these provisions or payments, one or both of the Parties would not have entered into this Agreement.
11.2. Applicable law and resolution of disputes
Any dispute arising from the interpretation or execution of this Agreement or any of its subsequent modifications, as well as any failure to comply with it, will be interpreted in accordance with Spanish law.
To resolve any disputes relating to the provisions of this Agreement or its execution, UNNAX and the CLIENT shall be expressly subject to the Courts of Barcelona, renouncing any other jurisdiction that may correspond to them. The language to be used in the resolution of any such disputes will be Spanish.
11.3.Subjugation to Laws
Each of the Parties shall be subject to any laws and regulations that are applicable in relation to the fulfilment of their obligations and the exercising of their rights pursuant to this Agreement.
11.4. Force majeure
The Parties will not be liable for any failure to comply with the obligations established in this Agreement insofar as such a failure is due to causes that are reasonably beyond the non-compliant Party’s control. Such causes may include, but not be limited to, fire, flooding, strikes, labour disputes or other instances of social disorder, scarcity or unavailability of fuel or electricity, unavailability or incorrect operation of communications networks, accidents, wars (whether declared or not), trade embargoes, blockades, riots or insurrections.
The CLIENT agrees that UNNAX may include the CLIENT’s name or brand name in a list of UNNAX clients, either online or in promotional materials. In addition, the CLIENT accepts that UNNAX may verbally refer to the CLIENT as a CLIENT of UNNAX’s products or services, in accordance with the provisions of this AGREEMENT.
Any notification or communication of cancellation or breach of this Agreement should be carried out in writing, addressed to the other Party at the address specified in the Order Form. Notifications will be considered delivered upon being received, according to the corresponding physical or electronic acknowledgement of receipt (as applicable in each case).
Neither of the parties may assign their rights or obligations derived from this Agreement without the other party’s prior written consent, except for in the event of assigning the rights or obligations to any Company of its Group, provided that: (i) the assignee commits in writing to abide by the terms of this Agreement; (ii) the assignor notifies the other party of the assignment; and (iii) where the assignor is the CLIENT, the assignee satisfactorily passes all the credit checks demanded by UNNAX.
UNNAX may outsource the fulfilment of its obligations derived from this Agreement, either partially or in full, without the need to obtain the CLIENT’s prior written consent. UNNAX will nevertheless remain fully responsible for the fulfilment of its obligations, particularly for any actions and/or omissions by its subcontractors in this regard, in the same way as though it were its own actions and/or omissions.
If any Clause of this Framework Agreement is declared null and void or non-applicable, either partially or in full, this status will only affect the specific provision or the part of the provision that is rendered null and void or non-applicable. In all other regards, the Agreement shall continue to remain valid, and the provision or the part of the provision that no longer applies will be considered to not be included.
11.10. Third parties
This Agreement does not confer any rights to the benefit of third parties, unless expressly specified otherwise.
12.1. “CLIENT” means the client.
12.2. “CLIENT Data” means all information, data or other content provided by the CLIENT in relation to the use of the Service, including, but not limited to, any piece of data and information that is transmitted to the Service via the CLIENT’s Libraries.
12.3. “Generated Data” means the data resulting from the Services that are rendered by UNNAX to the CLIENT through the Service, necessarily based on the CLIENT Data. The Generated Data expressly excludes any Property of UNNAX.
12.4. “CLIENT Libraries” means the CLIENT’s libraries that are provided by UNNAX and installed in the CLIENT’s applications for the purpose of obtaining the CLIENT Data and processing this data through the UNNAX Platform.
12.5. “Documentation” means the implementation manuals or guides; help information and other User documentation relating to the Service that is provided by UNNAX to the CLIENT, whether in electronic or any other format.
12.6. “UNNAX Platform” means the “Banking-as-a-Service (BaaS)” platform belonging to UNNAX, which provides the CLIENTS with APIs in order to build applications that require handling and control of bank accounts, bank transfers and an online register of customers, offering advanced payment solutions, financial data, as well as risk, fraud and identity tools.
12.7. “Property of UNNAX”: means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies and information that are acquired, created, developed or licensed by UNNAX prior to – or beyond the scope of – this Agreement. It also includes any improvement, modification, extension or other work derived from these, and all the related intellectual property rights, including but not limited to the Service, Client Libraries, Documentation, Client Data and Aggregate Data. UNNAX’s property excludes the Generated Data and the Client Data.
12.8. “Order Form” means an order referring to this Agreement that has been mutually agreed and signed by the Parties.
12.9. “Service” or “Services” means the services that UNNAX provides to the CLIENTS through the UNNAX Platform, whether directly (Technology Services) or through a Payment Institution or Electronic Money Institution (Payment Services), as specified at any given time in the Payment Order.
12.10. “User” means an individual who is authorised by the CLIENT to use the Service, for whom the CLIENT has acquired a subscription (or in the case of Services rendered by UNNAX free of charge, for whom the Service is rendered), and in
relation to whom the CLIENT (or, where applicable, UNNAX at the CLIENT’s request) has provided a user account and a password (for Services that require authentication). By way of example, Users can include employees, consultants, suppliers or agents of the CLIENT, as well as any third parties with whom the CLIENT maintains business relations.
Last modification: October 2018
UNNAX PAYMENT SYSTEMS, S.L.U.