T&C

Terms and Conditions

These Terms and Conditions (“Terms”) together with the Sales Order to which they are attached and including any annexes attached herein shall (collectively the “Agreement”) form a binding agreement between Mrkter Technologies L.B.O Ltd., operating under the branded name Payouts.com, and its affiliates (collectively “Company”) and the client as identified under the Sales Order, or any individual accepting these Terms or using the Platform and Service (as defined below) on behalf of and under the authorization of a legal entity (“Client”).

If the client is entering into this Agreement on behalf of a company or other legal entity, the client represents that the Client has the authority to bind such entity to the terms and conditions of this Agreement and that it is at least 18-years old. If the client does not have such authority the Client shall not enter this Agreement

The Company may amend this Agreement at any time by posting a revised version on the website or through the Platform. The revised version will be effective 30 days following the date the revised terms have been posted. In addition, if the revised version includes a substantial change, the Company will provide the client with 30 calendar days’ prior notice of the substantial change during which the client may terminate the Agreement. In the event the client does not terminate the Agreement within the 30-day period, it shall be deemed as if it consented to the revised terms and they shall govern and apply. 

• The Services
  
  
• The Services.  The Company provides a SaaS-based Vendor Relationship Management (VRM) platform (‘Platform”) designed to enable enterprises to manage their finance operations. The Platform offers streamlined vendor management, automated invoice processing, global tax compliance, real-time financial data integration, multi-currency support, ERP and tracking system integrations together with the facilitation of a payment solutions with third-party financial payment providers (“Third Party Providers”), allowing the Company to offer a range of payment options as set forth in the IO attached (“Services”). The Company provides the Platform and the technical capabilities; however, the financial services are provided solely by the Third Party Providers and are governed by a separate agreement with the Third Party Providers which client shall accept during the onboarding and comply with.  Any exchange of data between client and any Third Party Provider, product, or service is solely between client and the applicable third party. The Company is not responsible for and does not provide any warranties regarding third party applications, products, or services, or their security, functionality, or availability. Between the Company and client, client is responsible for any acts and omissions of such third parties, for the performance or nonperformance of the third-party product or service with respect to the Services, and for the effect it may have on the Platform or the Services.
  
  
• License to the Services. Subject to client’s full compliance with this Agreement, and unless otherwise agreed in writing between client and the Company, the Company grants the client a limited, worldwide, non-exclusive, non-assignable, not-tradeable, non-sub-licensable, fully and immediately revocable at Company’s discretion, license to access the Platform and use the Services, all solely for client’s internal business purposes, in accordance with this Agreement. Except as stated above, no other rights in the Services are granted.
  
  
• Use Restrictions. client may not and shall not permit any User to (i) copy, modify, distribute, publicly display, transfer or create derivative works of, adapt, emulate, translate, reverse engineer, compile, decompile, disassemble or reproduce the Services, or any parts thereof, for any purpose, (ii) remove or delete any and all copyright notices, restrictions and signs indicating  proprietary rights of the Company and/or its licensors, including copyright mark [©] or trademark [® or ™] contained in or accompanying the Services, (iii) create a browser or border environment around the Services, link, including in-line linking, to elements on the Services, such as images, posters and videos, and/or frame or mirror any part thereof or use the Services as a services bureau or otherwise to provide services which are in essence similar to the Services to third parties; (iv) transmit, distribute, display or otherwise make available through or in connection with the Services any content, including any client Data (as defined below), in a manner which infringes third party rights, including intellectual property rights and privacy rights, or which may contain any unlawful content; (v) transmit or otherwise make available in connection with use of the Services any malware or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; (vi) interfere with or disrupt the operation of the Services, or the servers or networks that host them or make the Services available; (vii) use the Services for and/or in connection with any form of spam, unsolicited mail or similar conduct; (viii) access and/or use any Services and/or the Content in order to build a competitive product or service; (ix) publish or disclose to any third party any technical features, quality, performance or benchmark test, or comparative analyses related to the Services; (x) bypass any measures which are used to prevent, control or restrict access to the Services and/or certain functionalities therein; (xi) infringe or violate any of these Terms . client hereby agrees that upon Company’s request, client will immediately return and purge from its systems all materials and copies of the same, collected, created or used in breach of this Agreement.
  
  
• Modification to the Services. The Company may continuously update its Services with new capabilities or offerings or replace or discontinue some of the capabilities with others. If the Company makes any material adverse change in the core functionality of the Services, then it will notify the client in advance either by posting a notice on its website or Platform, or via the Account or by sending the client an email using the contact information provided by the client. Notwithstanding the above, the Services may contain features designed to interoperate with third party software applications. The Company cannot guarantee the continued availability of such service features and may cease providing them without entitling the client to any refund, credit, or other compensation, including, without limitation, where the provider of a third-party application ceases to make the application available for interoperation with the corresponding Service features. Where client permits an integration to third party software applications, client thereby grants the Company access to all information made available through the integration.
  
  
• Account
  
  
• Account Registration. In order to use the Services, client must register and open an account through the Platform (“Account”). To finalize the Account registration, the Company may require certain information which will include client name, e-mail, organization, and password. The Company may allow client to invite individuals from its organization or affiliated companies to use the Services as users under client’s Account (“Authorized Users”). Any access provided to the Authorized Users shall be solely for a business purpose. Unless otherwise permitted by the Company or unless stated otherwise by the Company, the client shall not exceed the number of Authorized Users purchased under the applicable Sales Order. client assumes full responsibility for the use of its login credentials, its Authorized Users’ compliance with this Agreement, and for all data submitted to the Service. 
  
  
• Account Security. client is solely responsible for maintaining the confidentiality of the login credentials (e-mail and password or any other access method implemented by the Company) of client’s Account and for all activities that occur under the Account. The Company reserves the right to temporarily suspend or permanently terminate a client’s Account if it determines that client or its Authorized Users are using the client’s Account in a manner that violates this Agreement. Each Authorized User must have their own login, and client and Authorized Users shall not share login credentials with any person or third party. client shall notify the Company if (1) any Authorized User is no longer authorized to use the Services so that the Company can cancel their credentials, and (2) any credentials may have been compromised.
  
  
• User Updates. If a client wishes to modify its Account information, it may do so through the Account settings or by contacting the Company’s support team available at [email protected]. client is solely responsible to ensure the information provided through the Account is accurate and complete, including the Transaction Data and Payee Data (as defined below). 
  
  
• Intellectual Property Rights
  
  
• Intellectual Property. Any proprietary and intellectual property rights in and to the Services including any content thereof, such as logos, graphics, icons, images, as well as the selection, assembly and arrangement thereof (“Content”) and related materials, trademarks, trade names, copyrightable materials, designs, “look and feel”, all whether or not registered and/or capable of being registered, and any and all Feedback as defined herein, are owned and/or licensed to the Company or its affiliates or licensors and are subject to copyright and other applicable intellectual property rights under federal and state United States law, foreign laws and international conventions.
  
  
• Feedback. In the event that the client or the Authorized Users provide the Company with any suggestions, comments or other feedback relating to the Services (collectively, “Feedback”), such Feedback is provided on an “As Is” basis and is deemed the sole and exclusive property of the Company, and the client hereby irrevocably assign to the Company all rights, title and interest in and to all Feedback, if any, and waive any moral rights you may have in such Feedback. The Company has no obligation to compensate or credit  the client or the individual providing such Feedback. 
  
  
• Data, Security and Accuracy 
  
  
• client Data. Through the provision of the Services, client and its Authorized Users may provide certain data, including the payee information, vendor contact information and transaction information as initiated by the client, and receive certain information automatically generated by the Services or from the Third Party Providers, (collectively the “client Data”). client owns the client Data and client hereby represents and warrants that it has the full right, permissions, and consents to make the client Data available to the Company through the Services. As between Company and client, the client owns all client Data collected from or on behalf of the client. client shall obtain, or cause others to provide, correct and complete information as required by Company and shall immediately notify the Company of any incorrect information, payment instruction or other information provided to the Company. client is responsible for all liability arising out of incorrect or incomplete information or other information provided to the Company. Without limiting the client’s responsibility, the Third Party Providers may confirm the information directly from the client or otherwise. 
  
  
•  Use of client Data. Except as otherwise provided in this Agreement, the Company shall use client Data solely to provide and improve the Services, comply with applicable law, and to conduct compliance check and KYC processes, among others. The Company may send emails or other communication to payees and vendors on behalf of the client to provide the Services, or as required by applicable law, or on its own behalf. The Third Party Providers may require additional information which the client is obligated to provide. The Company is the processor of any client Data and shall process it in compliance with the data processing agreement (“DPA”) available at: https://payouts.com/privacy-policy/
  
  
• Company Data.  The Company is the controller of registration information, client and Authorized Users’ contact information (“Contact Information”) and may, directly or through third party measurement tools, collect and use certain analytic, statistic, measurement and telemetry data relating to the use of the Services, including the clickstream data, duration, errors that occur, logs, as well as access logs (“Usage Data”). The Company’s use of Personal Data is subject to the Company’s privacy policy available at https://payouts.com/privacy-policy/
  
  
• Sharing Data. Both client Data and Company Data may be shared with the Third Party Providers which process the Personal Data as independent controllers, or processors, as applicable, and as detailed under such Third Party Providers’ DPA which will be displayed and accepted by client separately to this Agreement. 
  
  
• Trial Subscription

1. The Company may make the Services (or any part of it) available to clients for the purpose of evaluating the Services for reduced fees or free of charge (“Trial Subscription”). The term of the Trial Subscription shall commence upon client’s first access to the Services and continue until the earlier of (a) the end of the applicable Trial Subscription period agreed by the parties, (b) the start date of any subscription to the Services that client purchases pursuant to a Sales Order, or (c) termination of the Trial Subscription by the Company for any reason, or for no reason at all, by sending client a termination notice with immediate effect.
2. The Trial Subscription is provided by the Company “as is” for limited evaluation and testing purposes only, and the Company does not warrant that the Trial Subscription will operate without error or interruption. The Company specifically disclaims all warranties, express or implied, including the implied warranties of merchantability, noninfringement, title, quality, accuracy, and fitness for a particular purpose. To the extent permitted by law, the Company disclaims all implied warranties and representations, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose and non-infringement. client assumes all risks and all costs associated with its use of the Trial Subscription. The client’s sole and exclusive remedy in case of any dissatisfaction or the Company’s breach of the Agreement with respect to such Trial Subscription is termination of the Trial Subscription. Any obligations on behalf of the Company to indemnify, defend, or hold harmless under this Agreement are not applicable to clients using Trial Subscription.
   

• Sales Order; Fees
  
  
• Sales Order. The Sales Order to which these Terms  are attached specifies and includes, among others, the fees payable in consideration for client’s access to the Services (“Fees”), the scope of the Services, subscription plan and term, additional payment, and billing terms. A Sales Order may be executed in various ways (as Company deems appropriate), including by mutual acceptance in writing. The Fees are exclusive of taxes, levies, duties, or similar governmental assessments of any kind (excluding taxes based on Company’s income); client shall be responsible for paying any and all such taxes.

1. Late fees. If a client fails to make any payment when due, then, in addition to all other remedies that may be available, the Company may collect interest compounded daily commencing on the date such payments become due, using a monthly rate of 1.5% or the highest rate permitted by law (whichever is lower). Any payment or part of a payment that is not paid by client to the Company when due shall constitute sufficient cause for the Company to suspend its performance hereunder and terminate this Agreement, provided that a seven (7) day prior notice was provided. Except to the extent otherwise expressly stated in this Agreement or in a Sales Order, all obligations to pay Fees are non-cancelable, and all payments are non-refundable. client agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by the Company regarding future functionality or features.
2. Renewal. The Company may modify the Fees or applicable pricing for the Services, entering into effect upon commencement of the next renewal subscription term of the relevant Sales Order(s), by notifying the client of such change in writing before the end of the then-current subscription term. Following which, the client will have the right to terminate the Agreement. 
   

• Confidentiality

Either party (“Disclosing Party”) may disclose or make available to the other party (“Receiving Party”) certain confidential information regarding its technology, operations and business (“Confidential Information”). Receiving Party agrees to use best reasonable industry measures to protect the confidentiality and not disclose the Confidential Information to any third party or use any Confidential Information except as required in the scope of this Agreement. Confidential Information shall not include information that Receiving Party can show by written evidence (a) was already lawfully known to or independently developed by Receiving Party without access to or use of Confidential Information, (b) was received by Receiving Party from any third party without restrictions, (c) is publicly and generally available, free of confidentiality restrictions. Receiving Party shall not be prevented from disclosing Confidential Information pursuant to a binding court order or similar binding legal requirement for disclosure, provided that Receiving Party provides Disclosing Party with prompt notice of such requirement and cooperates to minimize such requirement. Receiving Party shall restrict disclosure of Confidential Information to those of its employees with a reasonable need to know such information and who are bound by written confidentiality obligations no less restrictive than those set out herein. Receiving Party shall in any event remain liable for any actions or omissions performed by its employees and service providers, as if performed by Receiving Party. Upon termination or expiration of this agreement for any reason or upon the Disclosing Party’s written request, the Receiving Party shall return or permanently destroy all client Data in its possession. This section shall survive termination and shall stay in full force and effect for 10 years following the termination or expiration of the Agreement. 

• Availability

The availability and functionality of the Services depend on various factors, such as communication networks, software, hardware, and the Company’s service providers and contractors. While the Company uses commercially reasonable efforts to maintain service availability, it cannot guarantee that the Services will operate in an uninterrupted or error-free manner. The Company performs service maintenance and uses commercially reasonable efforts to schedule system downtime during off-peak hours and to avoid service interruptions and delays. The Company will use commercially reasonable efforts to notify client in advance of any scheduled downtime. The Service Level requirements, commitments and obligations are all detailed in Annex 1 (Service Levels) attached hereto and forming an integral part of these Terms.

• Warranties

1. General Warranties. Each party represents and warrants as of the Effective Date that: (1) it has the full corporate right, power and authority to enter into this Agreement; (2) the execution of this Agreement and performance of its obligations under this Agreement does not violate any other agreement to which it is a party; and (3) the individual executing this Agreement on behalf of a party has authority to bind such party to this Agreement and the performance hereof. The Company represents and warrants to the best of its knowledge that, as of the Effective Date, the Services are not the subject of any claims of intellectual property infringement from a third party.
2. client Warranties. client represents and warrants that: (1) it will use the Services only for its internal business purposes and not for personal, family, or household purposes; (2) it will use the Service and will conduct its business affairs in compliance with any applicable laws and in compliance with any Third Party Provider terms, agreements and requirements. client shall promptly notify the Company if, in any jurisdiction in which it transacts, it becomes subject to any banking, money transmission, or payment services laws or has been contacted by any government agency or regulator regarding its movement of funds. client further represents and warrants that all forms, due diligence questionnaires, and correspondence provided by client in association with this Agreement or the use of the Services, including but not limited to the KYC Process, and any updates to any of the foregoing, are complete and accurate. client shall provide the Company with prompt written notice of any changes to the information provided to the Company.

• Disclaimer of Warranties

EXCEPT AS EXPLICITLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. THE COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, THE INABILITY TO USE OR OPERATE, OR THE RESULTS OF THE USE OR OPERATION OF THE SERVICES (OR ANY PART THEREOF). EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE COMPANY DOES NOT WARRANT, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION THAT THE SERVICES ARE COMPLETE, ACCURATE, OF ANY CERTAIN QUALITY, RELIABLE, SUITABLE FOR, OR COMPATIBLE WITH, ANY OF CLIENT’S CONTEMPLATED ACTIVITIES, SOFTWARE OR TOOLS. THE COMPANY IS NOT, NOR WILL BE, A PARTY TO ANY THIRD PARTY SERVICES NOR LIABLE UNDER ANY THIRD PARTY AGREEMENT EXECUTED THROUGH THE SERVICES OR RESPONSIBLE FOR THE PERFORMANCE OF SUCH THIRD PARTY PROVIDERS’ SERVICES. 

• Indemnification
  
  
• Company Indemnification. The Company shall defend client from and against any claim by a third party alleging that the Services, when used as authorized under this Agreement, infringe or misappropriate such third party’s trademark, United States patent, copyright, or trade secret. The Company shall indemnify and hold client harmless from any damages and costs finally awarded by a court of competent jurisdiction or agreed to in a settlement by the Company (including reasonable attorneys’ fees). The foregoing shall not apply for claims arising from: (i) modification of the Services (or any portion thereof) by client; (ii) client improperly accessing or using the Services, in a manner other than as specified in the documentation provided by the Company; (iii) client’s integration and or the combination of the Services (or any portion thereof), with any third party product or component, to the extent that the infringement would not have occurred but for such integration or combination; or (iv) client’s failure to implement any updates, upgrades and new versions to the Services (or any portion thereof) provided by the Company within a commercially reasonable time period, to the extent that the infringement would not have occurred but for such failure of client.

1. client Indemnification. client shall defend, indemnify and hold harmless the Company and its affiliates, and their respective directors, officers and employees from any third-party liability, damages, losses, claims, demands, actions, causes of action and costs (including reasonable attorneys’ fees) arising out of or resulting from: (i) client’s or Authorized Users’ failure to comply with their obligations under this Agreement; and (ii) any negligent or willful acts (including, but not limited to, fraud) or omissions of client and its Authorized Users.
2. Indemnification Procedure. The indemnified party will: (a) provide prompt written notice of the claim and give the indemnifying party sole control over the defense and settlement of the claim; and (b) provide the indemnifying party its full and timely cooperation. The indemnifying party shall have the right, at its own cost, to defend against any such claim with a counsel of its own choosing and to settle and/or compromise such claim as it deems appropriate provided that it will not enter into any settlement which does not fully relieve the indemnified party of all liability or that otherwise requires the indemnified party to admit any wrongdoing, without the indemnified party’s written consent.

• Limitation of Liability

1. Nothing in this Agreement shall limit or exclude the liability of the Company or the client for (i) any matter in respect of which it would be unlawful to exclude or restrict liability; (ii) fraud; (iii) willful misconduct; or (iv) deliberate default.

1. Except with respect to liability under clause 13.1 above, neither the Company nor the client shall under any circumstances whatever be liable to the other, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any (i) loss of profit, sales, revenue, or business (ii) loss of anticipated savings; (iii) loss of or damage to goodwill; (iv) loss of agreements or contracts; (v) loss of use or corruption of software, data or information; (vi) any loss arising out of the lawful termination of this agreement or any decision not to renew its term, or (ii) any loss that is an indirect or secondary consequence of any act or omission of the party in question.

1. The total liability of either party to the other in respect of all other loss or damage arising under or in connection with this Agreement (excluding section 13.1 and liability for breach of confidentiality) whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances, exceed the aggregate fees paid by the client to the Company in the 12 month period prior to the date of the event that gives rise to the liability of either party to the other, and if no fees were charged, then a party’s liability shall not exceed US$1000.
2. Unless a party notifies the other party that it intends to make a claim in respect of an event within the notice period, the other party shall have no liability for that event. The notice period for an event shall start on the day on which the party wishing to make a claim became, or ought reasonably to have become, aware of the event having occurred and shall expire 12 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

• Term and Termination
  
  
• Term. This Agreement is effective upon (i) client’s acceptance of this Agreement, or (ii) the Effective Date of an applicable Sales Order, whichever occurs first, and ending when terminated as described in this Section 14. Unless otherwise specified in the Sales Order, (i) each Sales Order will have a term of twelve (12) months (an “Initial Term”) beginning on the effective date of such Sales Order; (ii) unless terminated earlier in accordance with these Terms and Conditions or the Sales Order , after the Initial Term, such Sales Order will automatically renew for twelve (12) month periods (each a “Renewal Term”) unless either party provides the other party with at least sixty (60) days’ written notice prior to the end of the Initial Term or the then-current Renewal Term.
  
  
• Termination for Breach. Either party shall have the right to terminate this Agreement in the event that the other party is in breach of this Agreement, and such breach is not cured within thirty (30) days of being provided with written notice and an opportunity to cure. Either party may immediately terminate this Agreement if the other party is dissolved or liquidated, becomes insolvent or unable to pay debts as they mature, or ceases to so pay, or makes an assignment for the benefit of creditors.
  
  
• Termination of Trial Subscription. If client does not have a paid subscription to the Services, the Company may suspend, limit, or terminate the Services and this Agreement for any reason at any time without notice.
  
  
• Effect of Termination. Upon termination of this Agreement, (i) all subscriptions, rights and licenses granted herein, and all Services provided by the Company hereunder shall terminate immediately; (ii) each party shall return to the other party or destroy all Confidential Information in its possession, custody, or control; and (iii) client shall remit in full all payments due to the Company, accruing prior to the date thereof, according to this Agreement and all Sales Order(s). Sections in this Agreement which are either expressed to survive or which are by implication intended to survive termination or expiry of this Agreement shall continue to survive notwithstanding termination or expiry of this Agreement.
  
  
• General
  
  
• Relationship of the Parties. This Agreement does not, and shall not be construed to create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the parties hereto.
  
  
• Governing Law and Jurisdiction. The parties expressly agree that this Agreement will be governed by the laws of the Applicable Jurisdiction without regard to its choice of law or conflicts of law principles. The Parties expressly consent to the exclusive jurisdiction and venue in the courts in the Applicable Jurisdiction, except that temporary relief to enjoin infringement of Intellectual Property rights may be sought in any court. “Applicable Jurisdiction” shall mean Tel-Aviv, Israel, if the client’s entity is organized under the laws of the State of Israel; or (ii) New York, NY, USA if the client’s entity is organized elsewhere.
  
  
• Assignment. Neither party may assign, sublicense, or otherwise transfer any or all of its rights or obligations under this Agreement without the other party’s prior written consent; provided, however, the Company may assign this Agreement in its entirety (including all Sales Order(s), without such consent to its wholly owned affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
  
  
• Marketing Permission. Subject to client’s separate written approval, client grants the Company the right to use its company name and logo as a reference for marketing or promotional purposes on the Company’s website and in other public or private publications or presentations with its existing or potential clients and investors, subject to client’s standard trademark usage guidelines as may be made available to the Company by client. client may revoke said right by providing written notice to the Company at [email protected].
  
  
• Severability. If any provision of this Agreement is found to be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision.
  
  
• No Waiver. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default.
  
  
• Notices. client acknowledges that notices provided by the Company in connection with this Agreement shall be provided as follows: via the Services, including by sending you notices through the Services, e-mail, phone or first class, airmail, or overnight courier. client further confirms that an electronic notification satisfies any applicable legal notification requirements, including that such notification will be in writing. Any notice to you will be deemed delivered the earlier of (a) receipt; or (b) 24 hours of delivery. The Company shall use client’s contact details that it has in its records in connection with providing client’s notices. Notices to the Company shall be sent to support@payouts.com or sent to HaSadnaot 10, Herzliya, Israel.

1. Electronic Agreement. Without limitation, client agrees that a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
   

ANNEX 1

Service Levels

• GENERAL

1. 1. In accordance with the terms of the Agreement, the parties acknowledge and agree that the Service Levels (as described below) set out in this Service Level Addendum shall apply in respect of the Services (as defined in the Agreement). Where this Service Level Addendum specifies that:

1. an adjustment is made to a Fee (as defined in the Terms) ; or
2. a Service Credit (as defined below) is available,

In each case as a result of the Company failing to achieve a Service Level in respect of the Services it has agreed to provide to the client, this adjustment or Service Credit shall only apply to the fees charged by the Company.

1. Unless otherwise defined in this Service Level Addendum, all capitalized terms shall have the meanings given to them in clause 7 below (Definitions) .

• SERVICE LEVELS AND SERVICE CREDITS

1. The Company shall provide the client the Services in accordance with:

1. the Terms ; and
2. the applicable Service Levels agreed for the Services, as set out in this Service Level Addendum.

1. If a Service Level is not achieved, a client may be entitled to apply for a Service Credit by notifying its account manager at the Company via email (with sufficient detail necessary to identify the affected Service and Service Level) within 60 days of the end of the calendar month for which a Service Credit is sought.

1. client will not be entitled to a Service Credit in respect of any failure to achieve a Service Level where such failure results directly or indirectly from:
   1. breach of the Terms by client and/or its affiliates and personnel;
   2. acts or omissions of third parties;
   3. failures resulting from client’s software, equipment, technology or third-party equipment for which the Company is not responsible under the Terms ; or
   4. a Force Majeure Event. 

1. If a Service Level is not achieved and the same subject matter is the cause of failing to achieve another Service Level, client is not entitled to duplicate Service Credits for the same subject matter. In such cases,  Company will apply the highest available Service Credit.
2. The maximum Service Credit for any given calendar month, will not exceed 10% of the total Fees paid to the Company for that calendar month.

• API AVAILABILITY
  
  
• API Availability Service Level (Table 1)

1. API Availability Service Credit
   1. In the event that the Company fails to achieve 99.95% System Uptime for API Availability (the “API Availability Service Level”) for at least three consecutive calendar months, client will be entitled to request a Service Credit in respect of each calendar month during which the API Availability Service Level was not met.
   2. Any Service Credit shall not be carried over from the relevant calendar months in any circumstances.
   3. client shall notify the Company immediately of any downtime of the Relevant API which it experiences by email. client shall provide all reasonably requested co-operation in investigating and resolving any such downtime.

• SECURITY MANAGEMENT
  
  
• Security Management

In the event of a Security Incident affecting client, the Company will notify the client of such Security Incident as soon as reasonably practicable, and in any event within 5 days (or such shorter period as required by Applicable Law) after an incident is classified by the Company as a Security Incident. the Company shall notify client of any material changes to the information provided in the initial notification of the Security Incident.

• INCIDENT MANAGEMENT
  
  
• Target Response Times and Target Resolution Times

client must notify the Company immediately by email to report any suspected event that may have an adverse impact on the Services. Where the Company determines that a suspected event constitutes an Incident:

1. the Company shall use commercially reasonable efforts to respond to Incidents within the Target Resolution Times as per Table 2 below. The Target Response Times are applicable when an Incident is notified during Business Hours. If an Incident is notified outside Business Hours, the Target Response Times shall run from 9.00am on the first Business Day following receipt of such notice by the Company; and
2. Target Response Times and Target Resolution Times shall only apply when client has notified the Incident to the Company as set out in this paragraph.

Where the Company believes that an Incident has been resolved, the Company will confirm to client that it considers the Incident resolved. If client does not agree that the Incident is resolved, then client will notify the Company of its objection and the parties will discuss any outstanding actions required to resolve the Incident. Unless client raises an objection, the time that the Incident is deemed to have been resolved will be the time at which client is notified pursuant to this paragraph.

• Severity Level

The Severity Level of an Incident will be determined by the Company in its sole discretion (acting reasonably and in good faith) with reference to the following factors:

1. client’s own assessment of the severity of the Incident, as notified to the Company (the “client Assessment”);
2. the level of impact an Incident has or is expected to have on the operation of the affected Services; and
3. the level of impact an Incident has or is expected to have on client.

If the Company disagrees with client Assessment, it will notify client as soon as reasonably practicable giving reasonable detail on why it disagrees with client Assessment.

• Notification of Major Incidents and Critical Incidents

The Company will notify client as soon as reasonably practicable (and in any event within 4 hours of an Incident constituting MIM-S1 (as set out in Table 2 below) (a “Critical Incident”) and 4 hours of an Incident constituting MIM-S2 (as set out in Table 2 below) (a “Major Incident”) after becoming aware of any such Critical Incident or Major Incident that affects client and which has not been reported by client to the Company.

• Critical Incident Reports

Within 15 Business Days following the discovery of a Critical Incident, the Company shall submit a report to client in respect of such Critical Incident (a “Critical Incident Report”). Critical Incident Reports shall contain at least the following information:

1. a summary of the Critical Incident;
2. a Root Cause Analysis;
3. where reasonably practicable, a description of the expected impact of the Critical Incident on client; and
4. a description of the remedial measures taken to address the root cause and consequences of the Critical Incident.
   
   

• Major Incident Management Service Level (Table 2)

• OPERATIONS
  
  
• Target Response Times

 The Company shall use commercially reasonable efforts to respond to an Operational Request within the Target Response Times as per Table 3 below. The Target Response Times are measured as the time taken from receipt by the Company of such Operational Request by client logging a report with the Company. The Target Response Times are applicable when an Operational Request is received during Business Hours and Target Response Times shall not run on non-Business Days. If an Operational Request is received outside Business Hours, the Target Response Times shall run from 9.00am on the first Business Day following receipt of such Operational Request by the Company.

Operations Service Levels (Table 3)

• Operations Service Level Remedy

If the Company fails to meet the Operations Service Level in respect of a particular calendar month, Company will provide to client a summary of its proposed continuous improvement program relating to operations (which may include seeking to hire more staff, review or improve existing processes). In this event, the Company will be required to report to client on a monthly basis its performance against such program until the Company is able to achieve the Operations Service Level for at least three consecutive calendar months.

• DEFINITIONS

In this Service Level Addendum, the following definitions have the corresponding meaning:

API Availability Service Level has the meaning set out in Clause3.2;

Business Hours means 9.00am to 5.00pm on any day that is a business day; 

Critical Incident has the meaning set out in Clause 5.3; 

Emergency Maintenance means steps taken by the Company to correct elements of the Platform that are likely to cause a high severity disruption to or outage in the Services provided by the Company and which, in the Company’s  sole discretion, require immediate action;

Force Majeure Event means any event beyond Company’s reasonable control, which include, but are not limited to, acts of God, acts of government, flood, fire, earthquake, civil unrest, acts of terror, strikes or labor problems, computer, internet, or telecommunications failures, delays or network intrusions, or denial of service and any other degradations of the Service caused by third parties.

Incident means a singular event or a series of linked events unplanned by the Company which has or will likely have an adverse impact on the integrity, availability, confidentiality and/or authenticity of the Services;

Major Incident has the meaning set out in Clause 5.3;

Operational Request means any request made by client relating to operational matters, including, but not limited to client onboarding, transaction screening and review, financial operations, feature or setting enablement, merchant risk and underwriting, and/or general client support requests;

Permitted Downtime means all times during which the Relevant API or Service is not available due to:

1. planned maintenance or downtime as notified to client via email not less than ten (10) business days prior to the start of such maintenance or downtime;
2. Emergency Maintenance;
3. problems caused by circumstances outside the Company’s  reasonable control (including Force Majeure Events and problems caused by client or by telecommunications, internet services, software or hardware not provided or controlled by the Company); and
4. problems caused by acts or omissions of client, its affiliates or personnel (including client’s failure to implement updates to the Platform.

Relevant API means the subset of APIs utilized by client in order to access the Services;

Root Cause Analysis means an assessment conducted by the Company through a process of investigation to determine the primary cause, and any other contributing causes, of an Incident;

Security Incident means an Incident resulting in unauthorized access to, use, modification of, disclosure of, or deletion of Confidential Information or Personal Data in breach of the Agreement or applicable data protection laws;

Service Credit means the credit that client is eligible to request pursuant to this Service Level Addendum if there is a failure to achieve a Service Level. A Service Credit is calculated by multiplying the applicable percentage set out in [Table 1 of] this Service Level Addendum by the Service Fees client incurs for the affected Services for the applicable calendar month. Service Credits will be applied as a payment into client’s account.

Service Level means the service levels set out in this Service Level Addendum;

Severity Level means the number indicating the severity classification of an Incident as set out in Table 2 in this Service Level Addendum;

System Uptime means, with respect to a calendar month, the Total Actual Uptime divided by Total Possible Uptime;

Total Actual Uptime means the amount of time during the relevant calendar month, measured in minutes, during which client has the ability to access the Services and the Platform  calculated by reference to the platform performance report provided to client, sourced from the Company’s observability tooling; and

Total Possible Uptime means the number of minutes in the relevant calendar month, less any Permitted Downtime