Term of use

The following terms and conditions (the “Agreement”) constitute a valid, legally binding agreement made between the Customer and Lexx Software Co Ltd, a Maltese company with registration number C 100540 or any of its Affiliates (“Lexx”) (either of which may be referred to individually as a “party” or collectively as “parties”). By clicking the “I Agree” button (or any other similar button) below the Agreement, or by using any of the Services provided by Lexx under this Agreement, the Customer shall be deemed as having fully understood and accepted the terms contained herein. If the Customer does not agree to the terms of this Agreement, the Customer may not use Services that Lexx provides to the Customer.

The Services Lexx provides to the Customer are very diverse so sometimes supplementary agreements may apply to the Customer, depending on the Services used by the Customer. Said supplementary agreements shall be available with relevant Services and become an integral part of this Agreement if the Customer uses those Services. In the event of any conflict between this Agreement and any supplementary agreement(s) which apply to Services, the terms and conditions in such supplementary agreement(s) shall prevail with regard to Services.

The provisions of this Agreement shall be applied and effective in their non-contradictory part also in case of granting a license to use the Software and/or Services on a royalty-free basis.

This Agreement was last updated August 3, 2023, and will be effective upon execution of the first Order Form between the parties referencing the Agreement by date (the “Effective Date”).

The parties agree that the terms and conditions of the Agreement shall apply to any Orders which the Customer may place under this Agreement.

1.Definitions.

As used in this Agreement, the following terms shall have the following meanings:

2. Initial Term and Renewals.

The term of this Agreement shall commence on the Commencement Date and shall continue in full force and effect until the expiration or termination of the Order Form (the “Initial Term”), unless earlier terminated by agreement of Lexx and the Customer or pursuant to Section 14 below. The Initial Term will be automatically renewed and extended for the same periods”) as the Initial Term(each: a “Renewal Term, unless either party gives written notice at least ninety (90) days prior to the end of the Initial Term, or any Renewal Term, of its intention to terminate; provided, that all pricing for each Renewal Term may be adjusted by Lexx over the pricing in effect for the preceding Initial Term or Renewal Term with at least 30-day written notice prior to the then applicable Renewal Term.

The Initial Term and all Renewal Terms are collectively referred to in this Agreement as the “SaaS Term”.

3. Lexx Services.

1. 3.1. Services. Lexx will render the Services to the Customer pursuant to the terms and conditions set forth in the applicable Order Form, this Agreement and materially in accordance with the general performance standards. Lexx shall use commercially reasonable efforts to make the Software generally available for on-line access by the Customer on a 24 hour per day, 7 days per week basis (“24/7”) and only to allow the Customer to exercise its rights under this Agreement.
2. 3.2. Availability & Support. During the Subscription Term, Lexx will maintain availability of the Service, and will provide support services as described herein. The access to the Service is provided 24/7. In case of any technical issues, it could be not available for no more than 48 hours incessantly. A part of the functionality could be temporarily disabled for technical or other reasons. Feedback and support tickets are accessible by link https://support.lexx-trade.com.
3. 3.3. Access and Usage Restrictions. The Customer has a non-exclusive, non-sublicenseable, nontransferable (except as specifically permitted in this Agreement) right to access and use the Services and Documentation during the applicable Subscription Term, solely for Customer’s internal business purposes relating to the processing of Customer Data subject to the limitations set forth in the Order Form(s). The Customer will not (a) sublicense, sell, transfer, assign, distribute or otherwise grant or enable access to the Services in a manner that allows anyone to access or use the Services without an Authorized User subscription, or to commercially exploit the Services; (b) copy, modify or create derivative works based on the Services; (c) copy any features, functions or graphics of the Services; (d) allow Authorized User subscriptions to be shared or used by more than one individual Authorized User (except that Authorized User subscriptions may be reassigned to new Authorized Users replacing individuals who no longer use the Services for any purpose, whether by termination of employment or other change in job status or function); or (e) access to or use of the Services: (f) to send or store infringing, obscene, threatening, or otherwise unlawful material, including material violative of third-party privacy rights; (i) in violation of applicable laws; (ii) to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, or agents; (iii) in a manner that interferes with or disrupts the integrity or performance of the Services (or the data contained therein); (iv) to gain unauthorized access to the Services (including unauthorized features and functionality) or its related systems or networks; (v) to track or seek to track any information of any other Customers; (vi) take any actions that imposes an unreasonable or disproportionately large load on the infrastructure of systems or networks of the Services, or the infrastructure of any systems or networks connected to the Services; (vii) to use any devices, software or routine programs to interfere with the normal operation of the Services, or any other Customer’s use of the Services; (viii) to impersonate, or otherwise manipulate identification, to disguise your identity or the origin of any messages or transmissions you send to Lexx.
4. 3.4. Changes to the Services. Lexx may make any changes to the Services, that Lexx determines in its sole discretion to be necessary and/or desirable including, without limitation, changes in computer hardware, systems, and/or applications software, programming languages, data communications and Customer identification procedures. In the event of any such changes that, in Lexx’s reasonable determination, would materially change the operation of the Software, Lexx will notify the Customer of such changes. Lexx reserves the right to charge the Customer for any reintegration work required to make customizations compatible with future versions/releases of the Software.
5. 3.5. Professional Services. The Customer may request, and Lexx may agree to provide Professional Services to the Customer as agreed to by the parties in an Order Form. However, Lexx may (i) reschedule any ordered Professional Services free of charge and without incurring any liability at minimum five (5) calendar days written notice prior to the Professional Service Start Date; and (ii) cancel any ordered Professional Service free of charge and without incurring any liability at minimum ten (10) calendar days written notice prior to the Professional Service Start Date. Rescheduling and/or cancellation with less than the above-mentioned days of prior written notice will be separately agreed upon in good faith. Any rescheduling or cancellation shall be made by notification to the e-mail address indicated in the Customer’s personal account.
6. 3.6. Services Performance. Services shall be performed as specified in the applicable Order Form and in a professional and workmanlike manner, consistent with generally recognized commercial practices and standards. The Customer agrees to provide prompt notice of any deviation by Lexx from the forgoing, and Lexx will re-perform any service that, in Lexx’s discretion, fails to meet this standard. Lexx shall comply with all environmental, health and safety legislation, directives or regulations applicable to such Services globally. Lexx shall fulfil any and all duties and obligations under any applicable environmental laws and regulations. Lexx shall deliver to the Customer, upon Customer’s request, the relevant documentation showing compliance with any particular applicable law globally, as may be required under any such applicable laws. Lexx will be solely responsible for the development, operation and maintenance of the intranet, extranet and Internet sites used for providing the Services to the Customer including but not limited to web portals (“Site”) and for all materials that appear on the Site provided by any party other than the Customer. Lexx’s responsibilities include, but are not limited to, the technical operation of the Site and all related equipment, the accuracy and appropriateness of materials posted on the Site which are provided by any party other than the Customer, ensuring that materials posted on the Site which are provided by any party other than the Customer do not violate any law, rule or regulation, or infringe upon the rights of any third party (including but not limited to copyright, trademarks, privacy or other personal or proprietary rights) and ensuring that materials posted on the Site are not libelous, otherwise illegal or harming the goodwill.
7. 3.7. Usage Limits. Use of the Services is subject to the usage limits identified in an Order Form, which may include limitations on features and functionality.
8. 3.8. Evaluation Services. Lexx may invite the Customer to use Evaluation Services at no charge and the Customer may accept or decline the invitation in its sole discretion. Evaluation Services are for evaluation and testing purposes, not for production use, not supported, not subject to availability or security obligations and may be subject to additional terms. Unless otherwise agreed by Lexx, the Evaluation Services trial period will expire upon the earlier of one (1) month after the date Lexx first makes the Evaluation Services available to the Customer, the date Lexx in its discretion makes a version of the Evaluation Services generally available, or earlier termination of this Agreement. Lexx may discontinue Evaluation Services at any time in Lexx’s sole discretion and may never make them generally available. Lexx will have no liability for any harm or damage arising out of or in connection with Evaluation Services.
9. 3.9. Use of De-Identified Data. The license granted to the Customer in Section 3.3. above is subject to the further condition that the Customer agrees that Lexx may collect, aggregate, use and disclose Services data relating to the Customer and/or End-User’s traffic, routing arrangements, rates etc., so long as such data is de-identified (i.e., cannot be attributed or connected to the End-User).
10. 3.10. Change Request. Either party may propose changes to add to, reduce or change the Services and/or the Professional Services provided under an applicable Order Form (“Change Order”). Each Change Order shall specify the change(s) to the Services, and the effect, if any, on the schedule and on Lexx’s compensation, due to the change. Once executed by both parties, a Change Order shall become a part of the Order Form and thereby expressly incorporated by reference herein and therein. After any such effective Change Order, references to such Order Form will be deemed to refer to the Order Form, as amended to give effect to such Change.
11. 3.11. Delay Caused by the Customer. In the event of any delay in Customer’s performance of any of the obligations set forth in this Agreement or any other delays caused by the Customer, the milestones, fees and date(s) set forth in the Order Form shall be adjusted as reasonably necessary to accommodate for such delays.
12. 3.12. Customer Responsibilities. The Customer has exclusive control and responsibility for determining what data the Customer submits to the Services and for obtaining all necessary consents and permissions for submission of Customer Data and processing instructions to Lexx. the Customer is further responsible for the accuracy, quality, and legality of all Customer Data, and for the acts and omissions of Authorized Users in connection with this Agreement. The Customer will use reasonable measures to prevent and will promptly notify Lexx of any known or suspected unauthorized use of Authorized User access credentials.
13. 3.13. Data Protection. During the Subscription Term, Lexx will maintain reasonable administrative, physical, and technical safeguards designed for the protection, confidentiality, and integrity of Customer Data at least as rigorous as the measures described in the data security description (the DPA). Lexx will not use Customer Data except to provide the Services, or to prevent or address service or technical problems, in accordance with this Agreement or as instructed by the Customer. If Lexx detects or becomes aware of a breach of its obligations under this Section 3.13. resulting in unauthorized access to Customer Data, Lexx will promptly report such breach to the Customer. Lexx will use diligent efforts to perform a root cause assessment and remedy such breach in a timely manner.

4. Intellectual Property Rights and Ownership.

1. 4.1. By the Customer. The Customer grants Lexx a worldwide, non-exclusive license to host, copy, process, transmit and display Customer Data as reasonably necessary for Lexx to provide the Services in accordance with this Agreement. Subject to this limited license right, as between Lexx and the Customer, the Customer owns all right, title and interest, including all related Intellectual Property Rights, in and to the Customer Data.
2. 4.2. By Lexx. Lexx expressly reserves all Intellectual Property Rights with respect to the Lexx IP not expressly granted to the Customer by virtue of Section 3.3. above. Lexx may, in its sole discretion add, delete, or change some or all the features included within the Services, and may change requirements for authorized Users and communicate such changes to any authorized Users, at any time without affecting any commitments previously agreed to in this Agreement. Without limiting the generality of the foregoing, the Customer acknowledges and agrees that (a) Lexx and its licensors retain all right, title, and interest in and to the Lexx IP and the Services (including any corrections, updates, adaptations, enhancements to either or authorized copies of either) and to the Services, and the Customer shall not acquire any rights, express or implied in the Lexx IP, and (b) any modifications to the Services made for Customer’s benefit shall in no way affect or diminish Lexx’s right, title, and interest in and to the Lexx IP. The Customer acknowledges that Lexx may create original works for third parties that may appear similar to a deliverable provided hereunder. The Customer agrees that, so long as such original work does not embody and is not created with reference to any of Customer’s Confidential Information, Lexx will not be prevented from independently creating original, but similar, works for the benefit of third parties or incorporating a deliverable as part of the general release of the Services.
3. The Customer shall report promptly to Lexx about any violation of this Section 4 and shall take such further steps as may be reasonably requested by Lexx to remedy any such violation and to prevent future violations.

5. Use of Aggregate Information.

Lexx may collect and aggregate data derived from the operation of the Services (“Aggregated Data”), and Lexx may use such Aggregated Data for purposes of operating Lexx’s business, monitoring performance of the Services, and improving the Services. Lexx’s use of Aggregated Data will not reveal any Customer Data, Customer Confidential Information, or personally identifiable information of Authorized Users.

6. Customer’s Responsibilities.

1. 6.1. The Customer shall provide assistance as reasonably requested by Lexx in connection with the implementation and configuration of the Services (if applicable) including, if requested, timely providing Lexx with access to Customer’s facilities, network, hardware and software, reasonably requested by Lexx in order to provide the Services.
2. 6.2. In order to obtain and maintain access and use of the Services, and for setting up the Services by Lexx, the Customer agrees to provide Lexx with all data required for the provision of the Services, including set up and configuration, in a timely manner; provided, however, that if the Customer or any third-party not controlled by Lexx changes its business document format such that changes are required to the template reading the format, the Customer will pay Lexx’s Professional Services fees for such additional templates.
3. 6.3. The Customer is responsible for acquiring and maintaining internet connectivity in order to access the Service and use the Services, and the Customer acknowledges that problems with the internet, including equipment, software, or network failures, impairments, or congestion may prevent, interrupt, or delay Customer’s access to the Services. The Customer shall be responsible for ordering, installing, maintaining the proper functioning of, and paying for any communications connections at Customer’s terminals or other access devices at Customer’s sites.
4. 6.4. The Customer acknowledges that the ability of Lexx to provide the Services requires Customer’s cooperation in providing Lexx with timely, adequate, and accurate responses to requests for data, documents, information, materials, decisions, or approvals. Lexx may be excused from performing the Services or Professional Services to the extent that the Customer delays or refuses to provide Lexx with such cooperation. The Customer shall be responsible for the accuracy, quality, integrity, legality, adequacy, and reliability of all Customer data that the Customer furnishes to Lexx and any results obtained therefrom.
5. 6.5. The Customer agrees to use the Services solely for the purposes identified in this Agreement and only for proper business purposes in accordance with and as contemplated by this Agreement and applicable legislation including, without limitation, laws and regulations respecting data privacy, international communications, and the exporting and importing of data.
6. 6.6. As a security measure, Lexx may assign to the Customer one or more user IDs to enable Customer’s employees to access and use the Service. The Customer shall maintain control of, administer, and accept responsibility for all use of such user IDs by the Customer and its employees. The Customer shall restrict the disclosure of such user IDs to Customer’s employees on a need-to-know basis only. The Customer shall take reasonable precautions to protect against the theft, loss, or fraudulent use of such User IDs. The Customer shall promptly (within one business day) notify Lexx of any unauthorized use of Customer’s User IDs, breach of security, and/or suspected theft, loss, or fraudulent use of such assigned User IDs.
7. 6.7. The Customer agrees to use its best efforts to ensure that no SaaS Component (Source Code, Object Code, etc.) is displayed outside or copied outside of the Services environment or distributed in any way to any third party except as may be permitted under the Agreement.
8. 6.8. The Customer agrees to comply with all technical specifications and with all security and operating guidelines, procedures, and protocols provided to the Customer by Lexx including, without limitation, pertaining to use of passwords and as set forth in the Order Form, the Documentation including any document referenced therein.
9. 6.9. The Customer agrees that it will not, and its employees will not, attempt to gain or allow access to any data, files, or programs to which they are not entitled under this Agreement, and that if such access is obtained, and Lexx Confidential Information has been compromised, the Customer will immediately return such materials to Lexx and will safeguard the same as Lexx Confidential Information (as defined in this Agreement).
10. 6.10. The Customer shall be solely responsible for maintaining adequate controls over its processing and data transmissions up to but excluding transmissions within the Services. The Customer acknowledges and agrees that Lexx is not responsible for checking, verifying, or editing the content or completeness of the information transmitted through the SaaS. Lexx will use reasonable commercial efforts to notify the Customer of any detected non-conforming processing and/or transmissions.
11. 6.11. The Customer shall report promptly to Lexx about any violation of this Section 6 and shall take such further steps as may be reasonably requested by Lexx to remedy any such violation and to prevent future violations.

7. No Joint Undertaking.

The provision and/or use of the Services does not constitute a joint undertaking between the Customer and Lexx to furnish service or services to any other party. Lexx does not undertake pursuant to this Agreement to make the Services available to any person or entity other than the Customer. Lexx and the Customer are independent parties and shall not be deemed or construed, by virtue of this Agreement, to be the employee, representative, partner, or joint venture of the other.

8. Billing and Payment.

1. 8.1. Fees Generally. The Customer will pay all fees and charges pursuant to the Order Form via the on-line payment processor network specified by Lexx, unless otherwise agreed in the Order Form. Unless otherwise set forth in an Order Form, amounts are due and payable upon completion of the Order Form, otherwise the Order Form will be considered incomplete and cannot be processed. Except as otherwise specified in the Order Form, (a) fees are quoted and payable in EUR, (b) fees are based on the Services purchased as indicated in the Order Form and not actual usage, (c) payment obligations are non-cancelable and fees paid are non-refundable unless otherwise provided herein, and (d) the number of subscriptions rights purchased cannot be decreased during the relevant Subscription Term.
2. 8.2. Fees for Professional Services. On a “Time and Materials” engagement, if an estimated total amount is stated in the Order Form, that amount is solely a good-faith estimate for Customer’s budgeting and Lexx’s resource scheduling purposes and not a guarantee that the work will be completed for that amount. On a fixed fee engagement, in the event of any delay in Customer’s performance of any of the obligations set forth in the Order Form or any other delays caused by the Customer, the milestones, fees and date(s) set forth in the Order Form shall be adjusted on a T&M basis as reasonably necessary to account for such delays, and the adjustment shall be made by Change Order. Professional Services purchased must be used within, and prices quoted are valid for a period specified in the Order Form.
3. 8.3. Offset. No one-sided offset or deduction from the Fee(s) is allowed under no circumstances.
4. 8.4. Reimbursable Expenses. The Customer shall be responsible for reimbursing reasonable expenses related to travel, meals, and lodging incurred by Lexx's employees, contractors, and/or other agents in connection with the installation, provision, training, Support Service, Professional Services, and operation and maintenance of the Services relating to the provision of the Services to the Customer. To cover these expenses, the Customer shall make a prepayment in the amount and within the time frame agreed upon with Lexx. In the absence of explicit agreements, the prepayment must be made no later than 14 before the commencement of the relevant work. Offsets or withholdings are not permitted without Lexx's written consent.
5. 8.5. The Customer acknowledges that prices set forth in the Order Form are based on the requirements and specifications by Lexx as of the effective date set forth in the Order Form, and that any subsequent changes in such requirements or specifications requested by the Customer will be subject to additional fees and expenses for such changes to be mutually agreed in advance by the parties.
6. 8.6. Taxes. The Customer and Lexx shall respectively bear the taxes levied upon the Customer and Lexx in accordance with applicable tax laws/regulations. Any and all settlement amounts under this Agreement may include the value-added tax (VAT), withholding tax (WHT), and digital services tax (if any) or similar taxes for a transaction based on Customer’s address, or other information provided by the Customer on location of Customer’s use of the Service. The Customer shall provide Lexx with correct tax information, such as Customer qualification as a tax payer and the tax registration number of direct taxes such as VAT, GST, or other taxes of similar nature. Any and all payments that the Customer makes to Lexx shall not be subject to any set-off, counter-claim, or required withholding or deduction. If a withholding tax or deduction is required by applicable laws, the Customer shall remit such a withholding tax to relevant tax authorities in the full amount and pay to Lexx the amount net of such a tax. The Customer shall obtain the tax payment certificate from the competent tax authorities after the Customer pays such a tax or a deduction, and provide said certificate to Lexx within sixty (60) days after said payment. This Section 8.6. shall not apply to Lexx’s income or payroll taxes.
   If the tax information that the Customer provides to Lexx is incorrect, such as the Customer's qualification as a tax payer and the tax registration number for indirect taxes like VAT, or other taxes of a similar nature, the Customer shall be liable for any such tax which is due to be paid to the pertinent authorities and all the subsequent penalties resulting from any misstatements/omissions shall be borne by the Customer.
   The Customer may apply for an invoice on relevant Services. Lexx will issue an invoice for the Customer that contains the amount of Customer Order within a specified period after the Order completion. If the Customer does not request an invoice within fourteen (14) days after the order completion, the system of relevant Services will automatically trigger an invoicing request and the invoice will be issued with the information that the Customer registers on said Services. If the invoice contains one or more errors due to Customer information being outdated, the Customer shall assume any and all losses incurred therefrom.
7. 8.7. Suspension for Late Payments. Without prejudice to its other rights and remedies, if Lexx suspends the provision of the Services for non-payment of invoices and subsequently agrees at Customer’s request to reconnect the Services, or if the Customer suspends the Support Services and after a which requests Lexx to renew them, in addition to any other charges due to Lexx, the Customer shall be charged applicable fees for the period of suspension and pay Lexx any reconnection fees or other costs imposed on or incurred by Lexx to reconnect the Services.
8. 8.8. Future Features and Functionality. Lexx may release Improvements and other features and functionality in its discretion. Some features and functionality may be available only with certain versions or editions of the Services, subject to additional fees, or subject to additional terms and conditions. The Customer acknowledges that purchases under this Agreement or any Order Form are not contingent on the delivery of future features or functionality.

9. Compliance.

At Lexx’s written request, Lexx may inspect the Services, or at its option request the Customer to furnish Lexx with a document signed by an authorized representative of the Customer providing a list of (i) each system or other server of the Customer where the SaaS is operational for use by Users; (ii) the number of Users of the SaaS; and (iii) actual use of SaaS Metrics. During the Term of this Agreement and for a period of one (1) year following its termination, Lexx reserves the right to audit Customer’s compliance with the terms of this Agreement and applicable Order Forms, no more than once annually at Lexx’s expense. Lexx or its third-party auditor shall schedule any audit at least ten (10) days in advance. Any such audit shall be conducted during regular business hours at a mutually agreed upon time and date within five (5) Business Days of Lexx’s request at Customer’s facilities and shall not unreasonably interfere with Customer’s business activities. The Customer shall provide such assistance, personnel, records, systems access, and information in an expeditious manner to facilitate the timely completion of such compliance verification. If such audit reveals that the Customer has underpaid fees to Lexx, the Customer shall pay to Lexx such underpaid fees at the then current Lexx prices plus interest at the rate of Libor plus 1.5% per month, and if such underpayment exceeds more than five percent (5%) of the fee paid by the Customer to Lexx, the Customer shall reimburse Lexx for the costs of performing the audit.

10. Warranties; Disclaimers; Limitation of Liability.

1. 10.1. By Each Party. Each party represents and warrants that it has the power and authority to enter into this Agreement and that its respective provision and use of the Services is in compliance with laws applicable to such party.
2. 10.2. Service Warranty. Lexx warrants that during the SaaS Term, the Services purchased by the Customer pursuant to this Agreement and any part thereof will perform in accordance with its specifications as provided under an applicable Order Form; provided, however, that (i) use of the Services is entirely at Customer’s own risk, and that Lexx has made no representations or warranties regarding (a) any data that may be provided to the Customer via the Services or the accuracy of any information in such data, or (b) the ability of the Customer to provide or deliver any product or service or to pay for any product or service using the Services, and (ii) This warranty is given to the Customer only and shall not apply and be void to the degree that the malfunction or failure occurs because or resulted from (a) the Software has not been used in accordance with Lexx’s instructions or the Documentation; (b) the Software has been altered, modified or converted by the Customer without the prior written approval of Lexx; (c) of the malfunctioning of Customer’s or third-party’s hardware or software or site preparation, or site or environmental conditions; (d) accident, abuse or misapplication of the Software; (e) the Licensed Materials have been damaged; or (f) the Software, or a portion thereof, has become inoperative due to any other causes outside the control of Lexx. Lexx shall not be required to respond to a warranty claim under this Section 10.2. to the extent that the Customer has not timely paid amounts due and owing to Lexx under this Agreement. By accessing the Services, the Customer agrees that Lexx has the right to investigate any violation of this Agreement, unilaterally determine whether the Customer has violated this Agreement, and take actions under relevant regulations without Customer consent or prior notice. Examples of such actions include, but are not limited to:
   blocking and freezing the Customer account;
   reporting the incident to the authorities;
   publishing the alleged violations and actions that have been taken;
   deleting any information the Customer published that are found to be violations.
   The Customer acknowledges and expressly agrees that, notwithstanding the results of the investigation referred to in the Section 10.2., in no event shall the Customer be entitled to any compensation from Lexx for loss or damage of whatever nature arising from any action referred to in the third paragraph of the Section 10.2. taken by Lexx for the purpose of the investigation.
3. 10.3. Sole and exclusive Remedy. The remedies stated in the Section 10.2. are Customer’s sole and exclusive remedies and Lexx’s entire liability for such breach.
4. 10.4. Disclaimers. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SOFTWARE AND OTHER LICENSED MATERIALS, THIRD PARTY SOFTWARE, AND SERVICES ARE PROVIDED BY LEXX “AS IS” AND “AS AVAILABLE” BASIS AND THAT EXCEPT AS MAY BE SPEICIFICALLY WARRANTED IN THIS SECTION 10, LEXX AND ITS LICENSORS AND SUPPLIERS HAVE MADE NO REPRESENTATIONS, AND HAVE EXPRESSLY DISCLAIMED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES OR REPRESENTATIONS OF EVERY KIND OR NATURE, EITHER EXPRESS, IMPLIED, OR STATUTORY, AS TO THE LICENSED MATERIALS AND ANY ANCILLARY OR RELATED PRODUCTS OR SERVICES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, USAGE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. LEXX DOES NOT WARRANT THAT (I) THE LICENSED MATERIALS WILL MEET CUSTOMER’S REQUIREMENTS, (II) THE SOFTWARE OR THIRD PARTY SOFTWARE OR ANY OPEN SOURCE SOFTWARE USED IN OR WITH THE SOFTWARE, WILL OPERATE IN COMBINATION WITH OTHER HARDWARE, SOFTWARE, SYSTEMS, OR DATA NOT PROVIDED BY LEXX (EXCEPT AS MAY EXPRESSLY BE SPECIFIED IN WRITING BY LEXX IN THE DOCUMENTATION), (III) THE OPERATION OF THE LICENSED MATERIALS WILL BE UNINTERRUPTED OR ERRORFREE, OR (IV) ALL ERRORS WILL BE CORRECTED.
5. 10.5. Limitation of Liability. LEXX SHALL NOT BE LIABLE TO AND CUSTOMER EXPRESSLY WAIVES ANY RIGHT TO SEEK INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES FROM LEXX OR FROM LEXX’S EMPLOYEES, LICENSORS, SUPPLIERS, AGENTS OR REPRESENTATIVES (“LEXX PARTIES”), INCLUDING, WITHOUT LIMITATION, CLAIMS FOR LOSS OF BUSINESS, REVENUE, PROFITS, OR GOODWILL, OR FOR ANY ACT OR FAILURE TO ACT BY ANY OF THE LEXX PARTIES ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THE PERFORMANCE OF THE SERVICES, WHETHER SUCH CLAIMS ARE ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11. Intellectual Property Rights.

1. 11.1. No Transfer of Ownership. No transfer of ownership of any Intellectual Property right will occur under this Agreement. Without derogating the foregoing, if software deliverables are created by Lexx specifically for the Customer and identified as such in the Order Form, such deliverables shall be deemed as Lexx IP, and Lexx hereby grants the Customer a worldwide, non-exclusive, fully paid, royalty-free license to use the deliverables as permitted under this Agreement or the applicable Order Form.
2. 11.2. Intellectual Property Rights Infringement. Lexx will defend and/or settle any claims against the Customer that allege that the Software supplied under this Agreement infringes the Intellectual Property rights of a third party. Lexx will rely on Customer’s prompt notification of the claim and cooperation, on Lexx’s reasonable expenses in accordance with Lexx internal policies. Lexx, according to its sole discretion, may either modify the Software or service so as to be non-infringing and materially equivalent, or may procure a license or replace the affected Software, or support item, or portions thereof, with one that is at least functionally equivalent or if not possible or if such solution is impractical for economic or technical reasons, then Lexx shall accept the return of the Software supplied and shall reimburse a pro-rata portion (based on a five-year straight line depreciation commencing upon Acceptance) of any fees paid by the Customer to Lexx with respect to such Software deemed to infringe, or for Support and Support Services, the balance of prepaid Support Fees paid by the Customer at the date of the claim, or for Professional Services, the amount paid. Lexx is not responsible for claims resulting from any unauthorized use of the products or services which is not consistent with the terms of the Proposal or this Agreement. Lexx’s undertakings pursuant to the foregoing shall not apply with respect to claims arising where the alleged infringement arises partially or wholly as a result of: (i) the combination of any component of the Software with products, software, data or services not provided by Lexx; (ii) the unauthorized modification, in any way or form, of any component of the Software by any person other than Company; (iii) use of the allegedly infringing Software, if the alleged infringement could have been avoided by the use of a different version, workaround or fix made available by Lexx to the Customer in a timely manner; (iv) components of the infringing Software complying with or based upon specifications or other information provided solely by the Customer or any third party; or (v) the misuse of the infringing Software in a manner not permitted or contemplated by this Agreement. THIS SECTION STATES THE SOLE AND EXCLUSIVE REMEDY OF THE CUSTOMER AND ENTIRE LIABILITY OF LEXX WITH RESPECT TO INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS AND LEXX SHALL HAVE NO ADDITIONAL LIABILITY UNDER CONTRACT, TORT, WARRANTY OR ANY OTHER LEGAL THEORY WITH RESPECT TO ANY ALLEGED OR PROVEN INFRINGEMENT.
3. 11.3. Should a party (“Indemnified Party”) seeks indemnification from the other party (“Indemnifying Party”) under this Agreement, the Indemnified Party will provide the Indemnifying Party with (i) prompt written notice of any indemnifiable claim; (ii) all reasonable assistance and cooperation in the defense of such indemnifiable claim and any related settlement negotiations, at the Indemnifying Party’s expense; and (iii) exclusive control over the defense or settlement of such indemnifiable claim, provided, however, that the Indemnifying Party may settle or reach compromise on any such claim without the Indemnified Party’s consent, if and to the extent such settlement or compromise does not impose any liability (monetary, criminal or otherwise) on the Indemnified Party. The Indemnified Party will have the right to participate, at its own expense, in the defense (and related settlement negotiations) of any indemnifiable claim with counsel of its own selection.

12. Confidentiality.

1. 12.1. Confidentiality. “Confidential Information” means this Agreement, the Service, Lexx pricing information, Lexx technical information, Customer Data and any other information disclosed by one party (the “Discloser”) to the other (the “Recipient”) in connection with this Agreement that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. The Recipient may use Discloser’s Confidential Information solely to perform Recipient’s obligations or exercise its rights hereunder. The Recipient will not disclose, or permit to be disclosed, Discloser’s Confidential Information to any third party without Discloser’s prior written consent, except that the Recipient may disclose Discloser’s Confidential Information solely to Recipient’s employees and/or subcontractors who have a need to know and who are bound in writing to keep such information confidential pursuant to confidentiality agreements consistent with this Agreement. The Recipient agrees to exercise due care in protecting Discloser’s Confidential Information from unauthorized use and disclosure, and in any case will not use less than the degree of care a reasonable person would use. The foregoing will not apply to any information that: (a) was in the public domain at the time it was communicated to the Recipient by the Discloser; (b) entered the public domain subsequent to the time it was communicated to the Recipient by the Discloser through no fault of the Recipient; (c) was in the Recipient’s possession free of any obligation of confidence at the time it was communicated to the Recipient by the Discloser; (d) was rightfully communicated to the Recipient free of any obligation of confidence subsequent to the time it was communicated to the Recipient by the Discloser; (e) it was developed by employees or agents of the Recipient independently of and without reference to any information communicated to the Recipient by the Discloser; or (f) is expressly permitted to be disclosed pursuant to the terms of this Agreement.
2. 12.2. Compelled Disclosure. The Recipient shall not be in violation of Section 12.1. regarding a disclosure that was in response to a valid order by a court or other governmental body, provided that the Recipient provides the Discloser with prior written notice of such disclosure in order to permit the Discloser to seek confidential treatment of such information.
3. 12.3. Sensitive Data. The Customer agrees that it will not submit the following types of information to the Services except with Lexx’s prior written approval: government-issued identification numbers, consumer financial account information, credit and payment card information, personal health information, or information deemed “sensitive” under applicable law (such as racial or ethnic origin, political opinions, or religious or philosophical beliefs). Where Customer’s use of the Services includes the processing of personal data (as described in the EU Data Protection Directive 95/46/EC) within the European Economic Area (EEA), the Customer will enter into a separate data processing agreement (including the European Commission’s Standard Contract Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection) with Lexx prior to submission of such personal data to the Services. The Customer represents and warrants that it has obtained all necessary consents and permissions from data subjects for the submission and processing of personal data within the Services.

13. Customer Indemnification of Lexx.

The Customer agrees to indemnify, defend, and hold Lexx harmless from and against any and all claims, demands, losses, liabilities, actions or causes of action, assessments, damages, fines, taxes, interest, and penalties asserted by any person against Lexx or against any of Lexx’s licensors and suppliers, and the reasonable costs and expenses of defending against such claims (including, without limitation, reasonable expenses of investigation and reasonable fees and disbursements of counsel, accountants, and other experts) (collectively, “Losses”) and threatened Losses arising from, in connection with, or based upon allegations involving (a) a violation of any Law arising from any use or attempted use of the Licensed Materials, or alleged misuse of information derived from any of the Services, by the Customer or its employees or agents, (b) the Excluded Matters; (c) violation or infringement on the Lexx or its licensors IP, or (d) a breach of this Agreement by the Customer or its employees, subcontractors or agents.

14. Termination for Cause.

Either Party may terminate this Agreement and any applicable Order Form: (i) upon the breach by the other party of any term hereof by giving the breaching party a thirty (30) day written notice to cure the breach and upon the expiry of the notice period if the breach is not rectified; (ii) violation or non-compliance of party’s undertakings under Sections 3, 11 or 12 in whole or in part will entitle the other party to forthwith terminate this Agreement or (iii) immediately if the other party had cease conducting business in the normal course, become insolvent, make a general assignment for the benefit of creditors, suffer or permit the appointment of a receiver for its business or assets, or shall avail itself of or become voluntarily subject to any proceeding under the applicable bankruptcy laws or any other statute of any state relating to insolvency or the protection of rights and creditors. The termination of this Agreement by the Customer shall not affect any of Lexx’s other rights in respect of the use of the Software by the Customer. The Customer shall return to Lexx the Software and all copies and portions thereof and the Licensed Materials. In the event that this Agreement is terminated by Lexx for a breach of the Agreement or applicable Order Form by the Customer, the Customer is forbidden from using the Services as of the effective date of termination and undertakes to pay the Fees for the Software and maintenance related thereto, until the end of the then current Term.

Any and all provisions of this Agreement which expressly or by their nature are intended to survive the termination of the pertinent agreement, shall remain in full force and effect subsequent to and notwithstanding such termination, until such provisions are satisfied or by their nature expire.

15. Continuing Obligations Following Termination.

1. 15.1. Customer’s liability for any charges, payments or expenses due to Lexx that accrued prior to the termination date shall not be extinguished by termination, and such amounts shall be immediately due and payable on the termination date. Any purported termination by the Customer shall only become effective upon Customer’s payment of all amounts due to Lexx under this Agreement through the date of purported termination.
2. 15.2. Following an event of termination of this Agreement or any applicable Order Form, the Customer shall cease using the Services, and the Customer shall certify to Lexx within thirty (30) days after termination that the Customer has destroyed, or has returned to Lexx, the Documentation and all copies thereof in all types of media and computer memory, whether partial or complete, and whether or not modified or merged into other materials.
3. 15.3. Partial termination. Termination of an Order Form does not terminate other Order Forms then in effect; such other Order Forms remain in effect so long as no separate grounds for termination exist.
4. 15.4. The provisions of Sections 8, 9, 10, 11, 12, and any other term that by its nature should survive the termination or expiration of this Agreement, shall survive any termination of this Agreement.

16. Personal Information.

Each party shall comply with their respective obligations under applicable data protection legislation. The Privacy Policy and the DPA available at https://www.lexx-trade.com, which is incorporated herein by reference, shall govern the processing, if any, of personal information, by Lexx.

17. Publicity.

The Customer grants to Lexx the right to use, in Lexx online and offline promotional and marketing materials the name, logos, and other marks of the Customer as a user of Services, including a joint Case-Study, for so long as the Customer uses such Services and thereafter. The Customer may revoke the right of use set out herein at any time by giving express notice to Lexx.

18. Financial Compliance.

1. 18.1. The parties acknowledge they are familiar with the anti-corruption legislation in relevant jurisdictions. The parties agree that they will not, in connection with this Agreement: (a) make any payment to; (b) transfer anything of value to; (c) offer, promise or give a financial or other advantage or request to; or (d) agree to receive or accept a financial or other advantage from, in each case either directly or indirectly, (i) any government official or employee (including employees of a government corporation or public international organization); (ii) any political party or candidate for public office or (iii) any other person or entity with an intent to obtain or retain business or otherwise gain an improper business advantage.
2. 18.2. Both parties shall comply with any and all applicable domestic and international laws and regulations on economic sanctions, anti-money laundering and counter-terrorism financing.
3. 18.3. The Customer represents, warrants, and undertakes to Lexx that:
   (a) neither the Customer nor any of Customer’s subsidiaries, directors of the board, or executives, or, to Customer’s best knowledge, any of Customer’s shareholders, Affiliates, agents, or employees is an individual or body corporate (“Entity”), that is, or is controlled or owned (via shareholding) by Entities that are the subject/target (“Object of Sanction”) of any economic sanctions, embargoes, or other restrictive measures enacted, administered, imposed, or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC), the U.S. Department of State, the United Nations Security Council, the European Union, the People’s Republic of China, and/or any other relevant governmental institutions, agencies, or authorities;
   (b) none of the funds provided or to be provided by the Customer under this Agreement are or have been directly or indirectly connected with any Object of Sanction or any activities that may violate any applicable laws/regulations, and that none of the funds received or to be received by the Customer under this Agreement are or have been used to support or assist any activities that violate any applicable laws/regulations; and
   (c) the bank account information provided by the Customer is accurate, and Customer bank account is registered in accordance with any and all applicable laws and regulations of the place (country/region) where the Customer is located and/or where Customer business is registered and Customer bank account is opened.

19. Governing Law and Jurisdiction.

1. 19.1. This Agreement and all Orders hereunder shall be governed by and construed in accordance with the laws of Malta.
2. 19.2. The Parties will attempt in good faith to negotiate a settlement to any dispute between them arising out of or in connection with this Agreement within thirty (30) days of the dispute being raised. All disputes arising out of or in connection with this Agreement, which cannot be resolved as aforesaid shall be finally settled by Malta Arbitration Centre according to Arbitration Act by one or more arbitrators appointed in accordance with the said Act. The language to be used in the arbitral proceedings shall be English. The place of arbitration shall be Malta. The award of the arbitration will be final and binding upon the Parties; provided that nothing in this Agreement shall limit the Parties’ right to seek injunctive relief or to enforce an arbitration award in any applicable competent court of law.
3. 19.3. Each Party shall be entitled to seek necessary and appropriate interim measures of protection from any court of competent jurisdiction to enjoin the other party from taking actions which may adversely affect the rights of the party bringing such claim, provided that any proceedings and decisions as to the merits of the dispute are exclusively governed and resolved by arbitration in accordance with this arbitration clause.
4. 19.4. Without prejudice to Arbitration Act or requirements under any relevant legislation including but not limited to stock exchange legislation or rules, the proceedings, documents and other information submitted by the parties or prepared by the court or the arbitrator(s) and the final award shall be deemed confidential Information disclosed under this Agreement.

20. Force Majeure.

1. 20.1. Neither party shall be liable to the other for any delay or non-performance of its obligations hereunder in the event and to the extent that such delay or non-performance is due to an event of force majeure.
2. 20.2. Events of force majeure are events beyond the control of the party which occur after the time of signing of this Agreement or an Order hereunder and which were not reasonably foreseeable at such time and whose effects are not capable of being overcome without unreasonable expense and/or loss of time to the party concerned, and provided further with respect to Lexx that such event could not have been prevented by Lexx by reasonable precautions or cannot reasonably be circumvented by Lexx through the use of alternate sources, workaround plans or other means (including Lexx meeting its obligations for performing disaster recovery services and implementing the disaster recovery plan).
   In the event of force majeure Lexx shall be excused from further performance or observance of its obligations so affected for as long as such circumstances prevail and Lexx continue to use its best efforts to recommence performance or observance whenever and to whatever extent possible without delay.
3. 20.3. If an event of force majeure results in delay or non-performance of a party for a period of ninety (90) days or longer, then either party shall have the right to terminate the Agreement with immediate effect without liability towards the other party.

21. Assignment

1. 21.1. Neither this Agreement or any Order Form may be assigned or transferred by the Customer, without the prior written permission of Lexx and any attempt to do so shall be null and void. Assignment shall be deemed to include (i) all or substantial part of the assets of the Customer being sold or otherwise transferred to any person; (ii) the Customer being merged or consolidated with any other person or entity; and (iii) the Customer becoming subject to the control of any firm or company other than the one controlled Customer upon execution of this Agreement or the Proposal.
2. 21.2. However, Lexx may, without the prior written consent of the Customer, unconditionally assign, novate, delegate or transfer any or all of its rights and obligations under this Agreement, in whole, in part, or through a splitting of the Agreement, to any Affiliate or to any acquirer of a Lexx business line to which this contract relates. As of the effective date of the assignment, novation, delegation, or transfer, the assignee entity(ies) assumes all of the relevant rights, obligations and liabilities of the Agreement, and Lexx is unconditionally released and discharged from all of the relevant rights, obligations and liabilities of the Agreement. The Customer will work cooperatively with Lexx and the assignee entity(ies) to ensure a smooth and orderly transition.

22. Miscellaneous.

1. 22.1. Delivery. Lexx will use all commercially reasonable efforts to deliver the Services in a timely manner.
2. 22.2. WEEE Directive. Where authorized under local legislation, the Customer, when importing electronic equipment pursuant to an applicable Order Form, shall be regarded as “Producer” under the Directive 2012/19/EU of the European Parliament and of the Council of 4 July 2012 on waste electrical and electronic equipment (OJEU 2012, L197), and shall comply with all its terms.
3. 22.3. Severability. Should any court of competent jurisdiction declare any term of this Agreement void or unenforceable, such declaration shall have no effect on the remaining terms hereof. To the extent legally permissible, any illegal, invalid or unenforceable provision of this Agreement shall be replaced by a valid provision that will implement the commercial purpose of the illegal, invalid or unenforceable provision. In the event that any provision essential to the commercial purpose of this Agreement is held to be illegal, invalid or unenforceable and cannot be replaced by a valid provision which will implement the commercial purpose of this Agreement, this Agreement and the rights granted herein shall terminate.
4. 22.4. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
5. 22.5. Changes. Lexx reserves the right to update any document referenced herein or in the Order Form, to reflect changes to the Services, provided, however, that any such amendments shall not materially degrade the level of Services provided to the Customer during the SaaS Term.
   Lexx has the right to change the Agreement at its discretion unilaterally and extrajudicially. The amended Agreement is brought by Lexx to the general public by posting (publishing) relevant information on the Lexx’s website at the following address: https://www.lexx-trade.com. Amendments shall enter into force no earlier than twenty-five calendar days after their publication. No additional notice from Lexx is required. The parties unconditionally agree that silence (the absence of notifications of cancellation of the Agreement or disagreement with the change of the Agreement) is recognized as the consent of the Customer with the amended Agreement.
6. 22.6. Order of Precedence. In the event of conflict, the terms of this Agreement will prevail over any Order Form or any other document incorporated by reference herein, except to the extent that such amending document specifically references the conflicting section of this Agreement and clearly states that the amending document will prevail, and such document is signed by an authorized signatory of Lexx.
7. 22.7. Counterparts. This Agreement may be executed in one or more separate counterparts, each of which shall be considered an original, and all of which together will constitute one and the same instrument.
8. 22.8. Notices. All notices, statements and reports required or contemplated herein by one party to the other shall be in writing and shall be effective (i) if mailed, seven (7) days after mailing with registered mail, (ii) if sent by messenger, upon receipt, and (iii) if sent via e-mail, upon confirmation of receipt or (if transmitted and received on a non-Business Day) on the first Business Day following transmission, whichever is earlier.