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General Terms and Conditions of Sales

General terms and conditions

Provision of services and sales of products

Art.1. Scope

1.1. The present general terms and conditions (“GTAC”) apply to all agreements between SIMAC PSF SA ("the Company") and its client ("the Client"), as specified in any specific agreement to which these GTAC are attached or referred to.

1.2. The terms of these GTAC shall be applicable to all agreements involving the Company, unless the parties have otherwise agreed.

Art.2. Definitions

2.1. In these GTAC and all the attached or referred to Agreement(s), the following capitalised words and expressions bear the following meanings unless specified otherwise by the Parties or the applicable law:

2.2. "Agreement" encompasses all agreements between the Company and the Client on the subject of the Company Solution, to which these GTAC are either attached or referenced.

2.3. “Development” means the configuration, scripting, programming and testing of the Company Solution.

2.4. “Effective Date” means the date of execution of this Agreement by the second of the Parties to this Agreement to execute it, or any other date determined by the Parties.

2.5. “Initial Period” means a period of one (1) year starting from the Effective Date

2.6. "Offer" refers to an offer made by the Company to provide services or products to the Client benefit.

2.7. "Order" The Client's request to the Company to acquire specific hardware or software that the Client considers essential for the provision of its services.

2.8. “Party” or “Parties” Company and Client jointly or each of them as the case may be

2.9. "PSF" or "PFS" means ‘Professionnel du Secteur Financier’, as regulated under Luxembourg law.

2.10. “Price” the amount charged to the client for the Company Solution as presented to the client in the STAC or any other annexed documentation that refers to these GTAC.

2.11. "Products" means any IT hardware purchased by the Client from the Company.

2.12. “Licences” means any licence for software purchased by the Client from the Company including licenses known as “SaaS” where software and associated data are centrally hosted and provided on a subscription basis via the internet, without the need for the final users to install and run the software on their own computers or infrastructure.

2.13. “Regulatory Change” means a change to Regulatory Requirements impacting the provision of the Services.

2.14. “Regulatory Requirements” mean all statutory and/or regulatory requirements (including the rules and construction thereof issued by the CSSF or any other Regulator) that are applicable to either of the Parties, including the Luxembourg law dated 5 April 1993 on the financial sector, as amended (as it may be replaced, amended or re-enacted from time to time) and all applicable rules, regulations, statements, codes and other requirements made under this act or made or imposed by the CSSF or any relevant Regulator.

2.15. “Services” means any services offered by the Company to its clients during the execution of the Company Solution subject to these GTAC.

2.16. “Company Solution” means a particular assembly of Company’s Products and Services with a particular configuration and preparation including any eventual Developments as to fit to the Client’s needs.

2.17. “Contractors” mean other companies withwhich the Company has or enters into contractual agreements in relation with the provision of Services.

2.18. “STAC” Specific terms and conditions entered between the Company and the Client attached or referred to in these GTAC.

2.19. “Termination Assistance Services” means all termination services supplied by the Company to the Client in order to enable the Client to perform the transition tasks and to ensure the continuity of the Services and as described in the relevant section of the STAC.

2.20. “Force Majeure” means an event which fulfils the cumulative criteria of unpredictability, irresistibility and exteriority which prevent, reduce or delay the execution of any of agreements to which these GTAC are attached or referred to.

2.21. The words “include”, “includes”, and “including” means “include but is not limited to”. The use of the word “including” followed by a specific example shall not be construed as limiting the meaning of the general wording preceding it.

2.22. The headings in these GTAC or any of the Agreements do not affect its interpretation. Titles or provisions’ labels, enumerations, ordering and placements, are provided for convenience of reference only and shall not be taken into account when construing this Agreement.

2.23. Unless otherwise indicated, the plural of all singulars in these definitions is included.

Art.3. Offers and Orders

3.1. Any Company's offer to the Client must be accepted within the specified time frame or, in the absence of a time frame, within thirty (30) days of the offer date. Conversely, the Company reserves the right to withdraw any offer prior to the Client's approval.

3.2. Prices are quoted in euros and, unless otherwise specified, do not include VAT or any other taxes.

3.3. All Orders must be submitted in writing and are subject to acceptance by the Company.

3.4. The Company reserves the right to reject any Order from the Client without providing reasons.

3.5. If the Client cancels the Order for any reason between the date of conclusion and the delivery of the products, the Client shall pay a fixed indemnity of no less than 35% of the purchase price. Should the costs incurred by the Company exceed 35% of the purchase price, the Client shall be liable for all such costs and any additional damages arising from the cancellation.

Art.4. Delivery of products and transfer of ownership

4.1. The date of delivery of the product or services ordered is provided solely for informational purposes and does not impose any contractual obligations on the Company, unless otherwise specified in the Company's offer. The Client is not entitled to an indemnity or to the annulment of the Order or to the Agreement as a consequence of a delayed delivery.

4.2. The Company retains ownership of all materials and products until full payment is received. They are at the Company's disposal as long as they are not paid in full. In particular, the Company is entitled to retrieve all unpaid materials and products, regardless of their location.

4.3. The risk of loss or damage to the subject of the sales contract between the Company and the Client is transferred to the Client upon delivery of the products, and as a result, the Client (or a third party appointed by the Client) assumes responsibility for the risk. In particular, the Company is not liable for any damages that may be incurred by products that are stored or deposited in unoccupied, occupied, or unfinished buildings, where the products were delivered at the Client's request.

Art.5. Price and Payment

5.1. Prices for Products or Services are specified in the Company’s Offer, STAC or Company’s price list or as otherwise agreed in writing.

5.2. All prices are exclusive of VAT and any other applicable taxes, which will be added to the invoice.

5.3. Payment terms are net thirty (30) days from the date of invoice, unless otherwise agreed in writing.

5.4. Unless otherwise stated in the offer, if the total value of the sale exceeds 25.000, - EUR (twenty-five thousand euros), an advance of 30 % of the agreed amount will be paid by the Client at the moment the contract is concluded. 70 % will be paid at the moment of delivery of all products.

5.5. In the event that the Client fails to pay by the specified due date, the Company reserves the right to immediately suspend all work on Company Solution and refuse any additional Orders. In the event of late payment, the Client will be subject to a penalty interest rate that is equivalent to the rate outlined in Article 5 of the Act of April 18, 2004, on payment periods and interest on receivables ("Loi du 18 avril 2004 relative aux délais de paiement et aux intérêts de retard").

5.6. The Company will automatically increase the amount of each payment reminder it sends to the Client by a fixed amount of 25, - EUR (twenty-five euros) to cover the costs of administration and handling for any amount less than 250, - EUR (two hundred and fifty euros).

Art.6. Term and termination

6.1. Unless otherwise provided among the Parties the term of this Agreement shall commence on the Effective Date and continue for the Initial Period. At the expiry of the Initial Period, the Agreement shall be renewed for an undetermined period, until it is terminated by either Party, subject to a three (3) month prior notice by registered mail to the other Party.

6.2. These terms do not govern the duration of Product sales, nor do they replace or supersede any manufacturer warranties applicable to such Products.

6.3. Neither Party shall be entitled to terminate the Agreement, without cause, during the Initial Period. In case of termination without cause by the Client during the Initial Period, the Client shall pay to the Company at the termination date a fee equal to 50% of the Price, without prejudice to the payment of all outstanding Fees and/or any amounts due by the Client to the Company hereunder.

6.4. In the event of curable breach one party fails to comply with any term or condition of this Agreement, the other party may terminate this Agreement upon written notice to the defaulting party. The defaulting party shall have 30 days to cure the breach before the non-defaulting party may terminate this Agreement.

6.5. In the event of an incurable breach (being a breach which renders the performance of the Agreement definitely impossible or in case of an Insolvency Event) of the provisions of this Agreement, the Company may terminate the Agreement with immediate effect, automatically (de plein droit) and without recourse to the courts by notifying in writing the Client by registered mail with acknowledgement of receipt.

6.6. The Company may, without prejudice to its other rights or remedies, terminate this Agreement with immediate effect, automatically (de plein droit) and without recourse to the courts, by written notice by registered mail with acknowledgement of receipt to the Client:

  1. If any act or omission of the Company that results in a regulator notifying the Company that it may consider withdrawing any licence and the Company has not rectified such act or omission within a reasonable time or within the time stipulated in any notice from that Regulator (as applicable); or
  2. if any Regulatory Change (whether by change of law, regulation, guidance, or interpretation) results in (or is anticipated to result in) the Services, this Agreement, or the Company's performance of its obligations hereunder ceasing to be in compliance with applicable Regulatory Requirements (without the implementation of that Regulatory Change).

 

Art.7. Consequences of Termination

7.1. Upon termination of this Agreement (for whichever cause), and without prejudice to the Company’s other rights and remedies, all outstanding Fees relating to the period up to the Termination Date which have not yet been invoiced shall automatically become due and shall be paid by the Client immediately on receipt of the related invoice. Termination of the Agreement shall not relieve the Client of its obligation to pay outstanding and due Fees.

 

7.2. In case of termination of the Agreement in accordance the Company shall, at the request of the Client, provide Termination Assistance Services to the Client for an adequate period of time as determined between the Parties. Subject to terms (including financial terms) to be agreed upon separately by the Parties, the Company may provide additional termination services and deliveries in order to allow transition of the Services to the Client or a Third Party against specific Fees.

7.3. If this Agreement is terminated by the Company for incurable breach the Company shall only be obliged to provide the Termination Assistance Services in the event that the Client has paid any outstanding Fees in advance and provided that an insolvency practitioner does not attempt to claw back the payment of such payment in case of Insolvency Event.

7.4. Each Party will return to the other Party any equipment, information and materials which are the property of the latter in due course.

7.5. Notwithstanding the termination or expiration of the Agreement for any reason, the following clauses shall remain in full force and effect for a period of ten (10) years from the date of such termination or expiration: Art.6, Art.7, Art.8, Art.9, Art.11, Art.12, Art.13.

Art.8. Business Continuity

8.1. The Company shall ensure that at all times it has in place an appropriate business continuity and disaster recovery plan for the continued performance and operational resilience of the Services by means of backup and recovery facilities and services.

8.2. The business continuity and disaster recovery plan referred to shall:

  1. be developed and updated from time to time, and in any event annually, in accordance with the standard of care and skill expected of an experienced Company of services of a kind comparable to the Services. The Company shall promptly provide the Client with a copy of such plan as updated from time to time;
  2. if required by the Client, explain how the procedures set out in it will interface with any business continuity and disaster recovery plans and procedures of the Client notified to the Company from time to time; and
  3. be subject to a full implementation test, the results of which will be notified to the Client.

8.3. The Company undertakes, at its own costs, to depose and keep under escrow for the entire duration of the Agreement at a provider providing “sources codes escrow services" (the “Depositor”), the sources codes (“codes sources”) of the Data Central software used for the performance of the Services under this Agreement (the “Software”).

8.4. The Company warrants that the sources codes of the Software, will be immediately released (at no additional costs) by the Depositor to the benefit of the Client in case of Insolvency Event or liquidation of the Company.

Art.9. Non-Solicitation

9.1. During the term of the Agreement and for one (1) year after its termination, the Client shall not, directly or indirectly solicit for employment or accept services provided by any employee, officer, or independent person who performed any work in connection with or related to this Agreement, from the Company.

9.2. In the event that the Client does not comply with this obligation, it undertakes to indemnify the Company by paying it compensation equal to the total gross wages paid to this employee during the twelve (12) months preceding his departure.

Art.10. Force Majeure

10.1. Neither Party shall be held responsible for failure or delay in the performance of any provision of the Company Solution, Products or Services, if such failure or delay is caused by a Force Majeure. Any such delay or failure shall suspend the execution of the affected Party's obligations, to the extent affected by the Force Majeure until the Force Majeure ceases. The affected Party shall promptly notify the other Party in writing with a registered mail sent to the other Party's address of the occurrence of a Force Majeure and provide details on the circumstances of such Force Majeure.

Art.11. Liability Limitation

11.1. The Company shall only be liable for performing the Services in compliance with this its Company Solution.

11.2. The Company does not make any representations or warranties as to the Services’ fitness or merchantability for a particular purpose and disclaims any and all liabilities arising out of:

  1. the Developments failing to meet the Client’s expectations that are not stated in this Agreement;
  2. specifications that do not match the Developments as requested by the Client including because, but not limited to, incomplete specifications or misunderstandings between the Client and the Company;
  3. any errors or inaccuracies resulting from incorrect information supplied by the Client;
  4. delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including Internet, and the Client acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
  5. any breach of security, unauthorised access to, alteration or destruction of the Clients’ data infrastructure, applications and/or data that are caused directly by the Client’s gross negligence or misconduct, including but not limited to infections by viruses or other malware or a third party’s software;

11.3. The Company shall not be liable for:

  1. incidental, special, or consequential damages, regardless of the form of action, whether in contract, tort, or otherwise; or
  2. any loss of profit, loss of savings, damage through corporate inactivity, (in each case whether direct or indirect or consequential).

11.4. Nothing in this Agreement excludes or limits either Party's liability:

  1. for gross negligence or wilful misconduct.
  2. for any breach of Intellectual Property rights by any of the Parties;
  3. for fraud, fraudulent misrepresentation or theft by it or its agents or employees; or
  4. for death or personal injury caused by its negligence or that of its employees or agents.

11.5. The maximum aggregate liability of the Company for acts or omissions occurring under or in relation to this Agreement shall in no case half the amount of the Price charged to the Client during the previous twelve (12) months, regardless of the number of events, for the damages caused by, or in strict relation to the Services.

11.6. Each Party shall obtain and maintain appropriate insurance coverage for its activities under this Agreement.

Art.12. Confidentiality Obligations

12.1. The Company and the Client (collectively, the "Parties") acknowledge that, in the course of performing the Services under this Agreement, they may have access to or come into possession of confidential information belonging to the other Party or its clients, employees, or business partners (the "Confidential Information"). Each Party undertakes to:

  1. Treat all Confidential Information as strictly confidential and to use it solely for the purpose of performing its obligations under this Agreement;
  2. Not disclose any Confidential Information to any third party without the prior written consent of the disclosing Party, except as required by law or by a competent regulatory or judicial authority;
  3. Implement appropriate technical and organizational measures to ensure the security, integrity, and confidentiality of the Confidential Information, in accordance with industry best practices and applicable laws and regulations;
  4. Limit access to the Confidential Information to those of its employees, agents, and subcontractors who have a legitimate need to know such information for the purpose of performing the Services, and ensure that such persons are bound by confidentiality obligations no less stringent than those set out in this clause;
  5. Promptly notify the disclosing Party in writing of any unauthorized disclosure, misuse, or misappropriation of Confidential Information and take all necessary steps to mitigate the effects of such breach and prevent any further breach.

12.2. Upon termination or expiry of this Agreement, or at any time upon the disclosing Party's written request, the receiving Party shall promptly return to the disclosing Party or securely destroy all Confidential Information in its possession or control, including any copies thereof, and certify in writing that it has done so. The receiving Party shall not retain any copies of the Confidential Information except as required by law or by a competent regulatory or judicial authority.

Art.13. Data Protection

13.1. The Parties acknowledge that the performance of the Services may involve the processing of personal data. Each Party undertakes to comply with all applicable data protection laws and regulations, including but not limited to the General Data Protection Regulation (EU) 2016/679 ("GDPR") and the Luxembourg Law of 1 August 2018 on the organisation of the National Commission for Data Protection and the general data protection framework, as amended from time to time.

13.2. The Parties shall enter into a separate data processing agreement, as required by Article 28 of the GDPR, which shall govern their respective rights and obligations with regard to the processing of personal data in connection with the Service

13.3. All personal data will be treated by the Company in accordance with the Company’s Data Protection Policy found here: https://www.simac.lu/en/privacy

Art.14. Intellectual Property

14.1. Any technology, software, know-how, data, or related (work) product (designated as the “Elements”) used by the Company to provide Services to the Client hereunder is and shall be the exclusive (intellectual) property of the Company.

14.2. Client shall treat the Elements as Confidential Information and commits itself not to use, sell, transfer, license, publish, disclose, display or otherwise make available the Elements, without the Company’ prior written consent, to any affiliate, subsidiary, partner or any other third party or entity, and not to use it for its own purposes or benefit except as provided in this Agreement.

14.3. However, the Client shall retain any intellectual property rights that may have been established prior to, or that are generated as a work product through the use of Elements or the Company Solution.

14.4. If, in performance of this Agreement, the Company develops any technology, software, know-how, data or related (work) product for the Client, the rights on the Developments, their programs, documentation, concepts and procedures in relation to the processing of information as well as all the other related products shall reside exclusively with the Company.

14.5. The Company is willing to provide a license on such Developments to the Client. Any license so provided shall be deemed compensated by the Price paid by the Client hereunder or shall be compensated to the Company.

14.6. The Client acknowledges and agrees that it shall have no right to claim or register any Intellectual Property right or other proprietary right in any of the Elements or Developments or any portion thereof.

14.7. The Client is not permitted to remove or alter any mention or marking concerning Intellectual Property rights or other proprietary rights or to have such changes made by Third Parties.

14.8. In the event that the Client provides software licences to the Company, it received the necessary representations and warranties from the legally authorised licensor that the software does not infringe the intellectual property rights of any third-party (“Third Party Software”);

14.9. The Client shall indemnify the Company on written demand in respect of all direct damages incurred by or awarded against the Company in connection with any claim or action against Company by any Third Party that the use or possession by Company of the Third-Party Software infringes the Intellectual Property rights of that Third Party (the “IPR Claim”). If any IPR Claim is made, or in one of the Company’s reasonable opinions is likely to be made, against the Company, the Client shall promptly and at its own cost and expense either:

  1. obtain for the Company the right to continue using the Third-Party Software in the manner permitted under, or as a result of, this Agreement; or
  2. modify or replace the infringing part of the Services so as to avoid the infringement or alleged infringement but in such a way that it complies with the Company Solution; or
  3. if the Company considers in its sole discretion that the implementation of the above remedies is not possible, not appropriate or disproportionate, pay to the Company an amount corresponding to three (months) Fees.

14.10. No indemnification shall be provided in the event that an IPR Claim:

  1. is based upon any information, design, specification, instruction, software, data, or material not provided by the Company;
  2. is based upon a combination of materials where any one material was not provided by the Company.

14.11. The Company will immediately notify the Client of any potential irregularities, which must be promptly rectified.

Art.15. Subcontracting

15.1. The Company may subcontract to Contractors the provision of the Services or Additional Services with the prior written approval of the Client, not to be unreasonably withheld or delayed.

15.2. A Contractor shall have the capacity, all the necessary and required consents, license, approvals and authorisations required for the entry into and the performance of the subcontracted services.

15.3. The Company shall be responsible for all acts and omissions of the Contractors as fully as if they were the acts and omissions of the Company or its employees or agents.

15.4. The Company may subcontract to a Contractor without approval from the Client if the purpose of use of the Contractor is for the following: hardware purchase, hardware maintenance, hardware Company consultancy services, software purchases, software maintenance, software Company consultancy services, telecommunication services or helpdesk services.

Art.16. Assignment

16.1. Neither Party may transfer or otherwise dispose of this Agreement or any interest hereunder except with the prior written consent of the other Party. Nevertheless, the Company may, at its own cost, transfer or otherwise dispose of this Agreement (in whole or in part) at any time to any Company Affiliated company or to any successor or purchaser of all of any part of the Company's operations or business or to any successor or purchaser of all or any part of any Company Affiliated company's operations or business.

16.2. Further, in the event that the Company wishes to transfer this Agreement to any Third Party, the Client agrees that it shall not unreasonably withhold or delay its consent to such transfer.

Art.17. Miscellaneous

17.1. Nothing in this Agreement, shall operate to exclude or limit the Client's obligation to pay the Price or any applicable termination compensation.

17.2. Neither Party will have or represent that it has the right, power, or authority to bind, contract, or commit the other Party or to create any obligation on behalf of the other Party in all matters relating to this Agreement. Each Party is an independent contractor. No action taken by the Parties pursuant to this Agreement or any provision of this Agreement shall be deemed to comprise or be interpreted as a partnership, association, joint venture, or other cooperative entity between the Parties.

17.3. The GTAC and its annexed Agreements in whole or in part, may be amended or supplemented only in writing, signed by authorised representatives of each Party.

17.4. If any provision of this Agreement is declared or found to be void, illegal or unenforceable in any respect under any applicable law, then:

  1. such provision will be amended to the extent necessary to make it legal and enforceable while reserving its original intent as closely as possible; and
  2. the validity, legality or enforceability of any other provision will not be impaired as long as the economic or legal substance of the relationship contemplated hereby is not affected in any manner contrary to the interests of both Parties.

17.5. Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same agreement, and any Party may enter into this Agreement by executing a counterpart.

17.6. Either Party may refer to the name of the other Party in any marketing materials, with the prior written consent of an authorised signatory of the other Party, which consent may not be withheld unreasonably

Art.18. Regulatory requirements

18.1. In accordance with the relevant Parties' obligations under this Agreement, each Party is required to adhere to all relevant applicable economic or financial sanctions laws, export controls regulations, trade embargoes, and/or any other mandatory restrictive export measure imposed or enforced by the United Nations, European Union, United States, or UK, whether directly, indirectly, or based on extra-territoriality applicability.

18.2. Each Party represents that it complies in all material respects with international sanctions regulation of each country in which it offers interests and it has in place corresponding policies and procedures reasonably designed to ensure the prohibition of transacting business with any persons/entities who appear in any list of terrorists or terrorist organizations of the United Nations, the European Union, USA, UK and any other country relevant for the purpose of this Agreement; it does not have any relation with fully embargoed countries and it complies with all applicable financial sanction laws, as required, and has in place corresponding policies and procedures reasonably designed to verify and ensure that none of the customers, final investors and/or policyholder, including the final investors’ (or policyholders’) beneficial owners, if applicable, are:

  1. persons, groups, or entities which are listed on Financial Sanctions list, being defined as lists of persons, groups or entities which are subject to United Nations, European Union, UK, and the US Office of Foreign Asset Control (OFAC),
  2. the government of or a person or entity in, or organized under the laws of, or owned or controlled by the government of, or a person in or organized under the laws of Cuba with US nexus, Iran, Crimea, Donetsk & Luhansk Regions, Afghanistan, Burma (Myanmar), Venezuela, North Korea, Syria, Russia, and Belarus. For the sake of clarity, this list shall be considered as automatically updated in case of evolution of the international sanctions’ framework, in case of communication from the Client,
  3. entities whose identity, beneficiary and/or beneficial owner(s) is required but cannot be determined or it is anonymous,
  4. entities connected to the ones listed under letter (a) above.

18.3. In case of conflict between the sanction’s regulations issued by different countries or organisations, the ones issued by Luxemburg and the European Union will prevail.

Art.19. Price Index Adjustment

19.1. The prices for recurring services provided by the Company shall be subject to periodic revision in accordance with the “Indice des prix à la consommation” (IPCN), as published by Statec. Any increase or decrease in the IPCN will result in a corresponding adjustment to the agreed-upon prices for the recurring services.

19.2. Such adjustments shall be made on an annual basis, effective as of January 1st, each year, and will reflect the change in the IPCN during the preceding 12-month period. In the event that the CPI is not available or if any dispute arises regarding its application to these prices, both parties agree to negotiate in good faith to resolve such issues.

19.3. This provision shall apply to all future orders and renewals of this Agreement. 

Art.20. Entire Agreement

20.1. These GTAC and the annexed Agreements contains the whole agreement between the Parties relating to the Company Solution and supersedes all previous agreements between the parties relating to these transactions. Except as required by statute, no terms shall be implied (by custom, usage or otherwise) into any Agreement.

20.2. Failure by the Company to require performance of any provision thereof shall not affect the Company’s right to enforce the same, nor shall any waiver of a breach be deemed a waiver of any other breach.

20.3. Failure by the Company to exercise or enforce any right or benefit conferred by this Agreement, including the right to deliver invoices in accordance with this Agreement, shall not be deemed to be a waiver of any such right or benefit nor operate so as to bar the exercise or enforcement thereof or of any other right or benefit on any later occasion.

Art.21. Governing law, dispute resolution and jurisdiction

21.1. These GTAC and its annexed Agreements and any non-contractual obligations arising out of it shall be governed and construed in accordance with the laws of the Grand-Duchy of Luxembourg.

21.2. The Parties agree that any and all disputes, claims or litigation arising from or related in any way to this Agreement shall be brought exclusively before the courts of the district of Luxembourg-City including in any matter in which the plaintiff seeks provisional measures in summary proceedings ("référé").