Software Licence Agreement - Totem Dev

PARTIES

(1) TOTEMDEV, Societate cu răspundere limitată registered in the Trade Registry of Chisinau, Moldova as number 1022609000314, with its head office at

MD-3601, str. Alessandro Bernardazzi 17, ap.1,
mun. Ungheni, Republica Moldova.

represented by Sergiu Andrian in his capacity as Administrator, duly authorised for the purpose thereof (hereafter referred to as the “Licensor”); and

(2) The “Licensee” which is the entity entering into the present software licence agreement (hereafter referred to as the “Licence Agreement”) with the Licensor.

The Licensor and the Licensee shall be referred to herein either individually as a “Party” and together as the “Parties”.

WHEREAS

• (A) The Licensor has developed and provides add-ons that enhance the functionality of Atlassian company’s JIRA software.

• (B) The Licensee wishes to use the Licensor’s products (hereafter the “Software” as more precisely defined in clause 1.1) as an on-premise solution in its business operations or for its personal use.

• (C) The Licensor has agreed to grant to the Licensee a non-exclusive and non-sub-licensable licence to use the Software under the terms and conditions of this Licence Agreement.

IT IS HEREBY AGREED

1.    Definitions

1.1.    In this Agreement, unless the context otherwise requires:

Atlassian means the company Atlassian Corporation Plc;

Atlassian Marketplace means the platform managed by Atlassian where the Licensee purchases the Cloud Products and related Support and Maintenance Services;

Charges means the fees payable by the Licensee to Atlassian pursuant to the Atlassian Marketplace Terms of Use ;

Data means all Licensee’s data collected, analysed and processed using the Cloud Products, including Personal Data;

Extended Term means the term as defined in Clause 4 “Subscription Term and consent”;

Initial Term means the term as defined in Clause 4 “Subscription Term and consent”;

Intellectual Property Rights means any intellectual property rights according to the Moldovan intellectual property law, particularly:

• Any copyright on any original work, and particularly copyright on computer programs, software and all other property rights relating to the use of computer systems;

• Any methods, tools, processes, technical and/or scientific information, files, patterns, formulas, protected or protectable by intellectual property;

• Any know-how, business secrets, trade secrets, patents and any other industrial property rights, registered or unregistered;

Notification Email Address means the email address the Licensee used to subscribe to a Cloud Product. It is the Licensee’s responsibility to keep the email address valid and current so that the Licensor is able to send notices, statements, and other information to the Licensee.

Personal Data means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier;

Scope of Use means the authorised use of the Cloud Product as described in Clause 6 “Use of the Cloud Product” to this Agreement;

Sensitive Data means any Personal Data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation;

Sites means the websites of the Company available at the following URLs: https://totem.dev, https://skillsforjira.com and their subdomains like:  https://blog.skillsforjira.com

Subscription Term means the Initial Term and all Extended Terms;

Support and Maintenance Services means any corrective, update or upgrade services of the Cloud Product provided by the Licensor;

Termination Date means the date of termination of this Agreement, howsoever arising;

Virus means anything or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer Cloud Product, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part of otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;

Year: the period from the Effective Date to the first anniversary date of the Effective Date.

2.    Scope of the Agreement

2.1. This Agreement governs the Licensee’s initial subscription for the Licensor’s Cloud Products and future purchases by the Licensee.

2.2. This Agreement does not apply to the Licensor’s download solutions which are governed by a separate agreement with the Licensor

3.    Headings

3.1. Clause and paragraph headings shall not affect the interpretation of this Agreement.

3.2. If there is an inconsistency between any of the provisions in the main body of this Agreement and the headings, the provisions in the main body of this Agreement shall prevail.

4.    Subscription Term and consent

4.1. This Agreement are effective as of the date the Licensee first click “I agree” (or similar button) or use or access a Cloud Product (hereafter referred to as the “Effective Date”). This Agreement does not have to be signed in order to be binding. By clicking “I agree” (or similar button) at the time the Licensee purchases the Cloud Product on the Atlassian Marketplace, the Licensee accepts to be bound by this Agreement.

4.2. The Licensee is engaged since the employee or any representative of the Licensee accepts the present Agreement and then agrees that: (i) he has full legal authority to bind the Licensee or such entity to this Agreement; (ii) he has read and understand this Agreement; and (iii) he agrees to this Agreement on behalf of the Party that he represents. If he doesn’t have the legal authority to bind the Licensee or the applicable entity, it is forbidden to click “I agree” (or similar button) that is presented.

4.3. The Licensee agrees that if an employee or any representative of the Licensee signs up for a Cloud Product using an email address from the Licensee or another entity, then (a) he will be deemed to represent such Party, (b) his click to accept will bind the Licensee or that entity to this Agreement.

4.4. This Agreement shall commence on the Effective Date and shall continue in full force and effect for a period of twelve (12) months (hereafter referred to as the “Initial Term”).

4.5. Unless terminated earlier in accordance with Clause 17 “Termination”, this Agreement shall automatically extend for a further period of twelve (12) months (hereafter referred to as the “Extended Term”) at the end of the Initial Term and at the end of the Extended Term, by tacit renewal.

5.    Modification of the Agreement

5.1. The Licensor may modify the terms and conditions of this Agreement from time to time. Amendments to these terms will be effective upon posting and operate as a condition of your continued engagement with Totem Dev or continued use of our websites, software or services. It is your responsibility to check this page periodically for any updates to this Software License Agreement.

5.2. In the event of a modification of the Agreement, the Licensee shall accept the modified Agreement to continue using the Cloud Product. If the Licensee objects to the modifications, the Licensee exclusive remedy is to cease using the Cloud Product.

To take into account Atlassian Marketplace technical constraints, the annual renewal of the licence constitutes the most natural way for the moment for the Licensee to accept or refuse the modified licence.

6.    Use of the Cloud Product

6.1. As of the Effective Date, the Licensor grants to the Licensee a personal, non-exclusive, non-transferable, non-assignable and non-sub-licensable right to use the Cloud Product during the Subscription Term for its internal business purposes or personal use in relation to this Agreement. This includes the right, as part of the authorised use of the Cloud Products, to download and use the Licensee cloud products associated with the Cloud Products, if applicable.

6.2. No ownership right is conveyed to the Licensee, irrespective of the use of terms such as “purchase” or “sale”. The Licensor has and retains all right, title and interest, including all Intellectual Property Rights.

7.    Licensor’s Obligations

7.1. During the Subscription Term, the Licensor shall provide the Cloud Product to the Licensee in a competent and professional manner, with reasonable skill and ability conforming to generally accepted software standards.

8.    Licensee’s Obligations

8.1. The Licensee shall comply with the terms of this Agreement and any other referenced policies and terms of this Agreement.

8.2. The Licensee shall comply with all applicable laws and regulations with respect to its activities under this Agreement.

8.3. The Licensee shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Cloud Product and notify the Licensor promptly of any such unauthorised access or use.

8.4. The Licensee acknowledges and agrees that the Licensor has no support, warranty, indemnification or other obligation or liability with respect to the modifications the Licensee could operate on the Cloud Product or the combination, interaction or use with the Cloud Product. Any modification of the Cloud Product by the Licensee constitutes an infringement of the Agreement and the Licensee does so at its own risk and peril.

8.5. The Licensee will defend, indemnify and hold harmless the Licensor from and against any loss, cost, liability or damage (including attorney’s fees) arising from or relating to any claim brought against the Licensor arising from or related to Licensee’s breach of the Agreement especially any claims or disputes brought (a) by a third party related to the use of the materials of the Licensee in the context of this Agreement; or (b) by a third party relating to any content or data used by the Licensee in connection with the Cloud Product and not provided by the Licensor.

9.    Support and Maintenance Services

9.1. During the Subscription Term, the Licensor will provide the Licensee with Support and Maintenance Services for the Cloud Product pursuant to the conditions described in the respective Cloud Product’s Atlassian Marketplace listing.

10.     Fees and payment

10.1. The Licensee agrees that all payments are submitted to the provisions of Article 2 “Your orders” of the Atlassian Marketplace Terms of Use.

11. Intellectual Property Rights

11.1. The Parties retain the exclusivity of their Intellectual Property Rights prior to the conclusion of this Agreement.

11.2. The Licensee shall not:

• Reproduce, duplicate, modify, adapt or create, or attempt to reproduce, duplicate, modify, adapt or create derivative works from or distribute all or any portion of the Cloud Product;

• Reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Cloud Product or attempt to reverse engineer, disassemble, decompile or otherwise reduce to human-perceivable form all or any part of the Cloud Product;

• Transfer, temporarily or permanently, any of its rights under this Agreement;

• Rent, lease, distribute, sell, sublicense, transfer, or provide access or attempt to obtain, or assist third parties in obtaining, access to the Cloud Product;

• Use the Cloud Product for the benefit of any third party;

• Incorporate the Cloud Product into a product or service that the Licensee provides to a third party;

• Interfere with any licence key mechanism in the Cloud Product or otherwise circumvent mechanisms in the Cloud Product intended to limit the use;

• Remove or obscure any proprietary or other notices contained in the Cloud Product;

• Use the Cloud Product for competitive analysis or to build competitive products;

• Publicly disseminate information regarding the performance of the Cloud Product; or

• Encourage or assist any third party to do any of the foregoing.

11.3. The Licensor will retain all right, title and interest in and to any Cloud Products, materials, adds-on, deliverables, derivative works or developments that the Licensor would provide the Licensee in connection with any additional services.

11.4. The Cloud Product may include code and libraries licensed to the Licensor by third parties, including open source Cloud Product. In this case, the Licensee shall comply with the relevant open source licences. The Licensee shall read and respect the provisions of Third Party Code in Atlassian Products regarding the use of third-party code.

12. Confidentiality

12.1. Each Party (hereafter referred to as the “Receiving Party”) acknowledges that they may access to information, that have been disclosed to the Receiving Party or its affiliates by the other Party (hereafter referred to as the “Disclosing Party”) or its agents or affiliates, which are of a confidential nature, in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, Licensees, products, affairs and finances of either Party for the time being which is confidential to that Party and trade secrets including, without limitation, technical data and know-how relating to the business of that Party or any of its Licensors, Licensees, agents, distributors, shareholders, management or business contacts (hereafter referred to as “Confidential Information”).

12.2. The Receiving Party shall keep in strict confidence all Confidential Information, and any other Confidential Information concerning the Disclosing Party’s business or its products which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential material to such of its or its affiliates’ employees, agents or sub-contractors as need to know it for the purpose of discharging the Receiving Party’s obligations to the Disclosing Party, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Disclosing Party.

12.3. All materials, equipment and tools, drawings, specifications and data supplied by the Disclosing Party to the Receiving Party shall at all times be and remain the exclusive property of the Disclosing Party, but shall be held by the Receiving Party in safe custody at its own risk and maintained and kept in good condition by the Receiving Party until returned to the Disclosing Party, and shall not be disposed of or used other than in accordance with the Disclosing Party’s written instructions or authorisation.

12.4. The obligations in this clause shall not apply in relation to:

• Information which is or has become public knowledge other than as a result of a breach of Clause 12.1;

• Information which the Receiving Party using or disclosing the information either knew prior to the Disclosing Party’s first disclosure of it or received from a third party entitled to disclose the same; or

• Information which either Party is required to disclose by law any court of competent jurisdiction, any Government agency or any regulatory body lawfully requesting the same.

12.5. To the extent that any Confidential Information of the Disclosing Party is stored within a computer system or is stored in machine-readable form, the Receiving Party shall ensure that such Confidential Information is secured so that access may not be gained and copies may not be made other than in accordance with this Agreement.

12.6. Subject always to the Receiving Party’s right to retain (for such purposes only) one copy of any Confidential Information of the other Party which the Receiving Party requires to retain to satisfy any applicable audit or regulatory requirements, the Receiving Party shall as soon as reasonably practicable on the written request of the Disclosing Party return all documents and materials containing the Confidential Information or if so required shall at the request of the Disclosing Party destroy all documents and materials containing the Confidential Information (including any copies, analysis, memoranda or other notes made by the Receiving Party) in its possession or under its custody or control and shall in addition (so far as reasonably practicable) remove any such Confidential Information stored within any computer or word processing system whether or not in machine-readable form and certify in writing to the other that all such documents and materials have been destroyed.

12.7. The Parties shall use reasonable endeavours to ensure that their employees, agents and sub-contractors comply with this clause.

12.8. From time to time, the Licensee may choose to send feedback to the Licensor while suggested. No feedback will be considered as confidential information and the Licensor reserves the right to use, develop, evaluate, or market products or services on the basis of Licensee’s feedback or with incorporation of Licensee’s feedback or otherwise. Without prejudice to Clause 11 “Intellectual Property Rights”, the Licensor may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any feedback in any manner without any obligation, royalty or restriction based on Intellectual Property Rights or otherwise.

13. Personal Data

13.1. The Licensor may collect Personal Data from the Licensee in connection with the Licensee’s use of the Cloud Product and otherwise in connection with this Agreement.

13.2. The Licensee hereby acknowledges and accepts the rights and obligations of the Licensor’s privacy policy that he has read and understood and accessible at the following link: https://totem-dev.atlassian.net/wiki/spaces/SKILLS/pages/417398785 .

14. Warranties and Disclaimer

14.2. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement. If the Licensee is an entity, he warrants that this Agreement is entered into by an employee or agent of such entity with all necessary authority to bind such entity to the terms and conditions of this Agreement.

14.3. The Licensor warrants that it will take reasonable commercial efforts to ensure that the Cloud Product, in the form and when provided to the Licensee, will be free of any Viruses, malware, or other harmful code.

14.4. The Licensor warrants that the Cloud Products will not violate the Intellectual Property Rights of any third parties and, therefore, guarantees the Licensee against any legal action or claims brought by third parties (hereafter referred to as a “Third Party Claim”) alleging that the use of the Cloud Product by the Licensee infringes or violates the rights of the third party under applicable laws. Under this warranty, the Licensor shall bear reasonable lawyers’ fees and other reasonable legal fees that the Licensee may be required to incur or suffer as a result of such legal action or claim, as well as all the direct damages the Licensee may be sentenced to pay by a binding court decision.

14.5. On becoming aware of a Third Party Claim , the Licensee shall (i) promptly notify the Licensor of such Third Party Claim (ii) provide the Licensor with the sole control over the defence and/or settlement of such Third Party Claim (with the Licensee retaining the right to participate in such Third Party Claim (but not control) with its own legal counsel, at its own expense), and (iii) give reasonable cooperation and assistance to the Licensor, at the Licensor’s cost, with regard to such Third Party Claim.

14.6. This warranty will not be applicable if the Third Party Claim arises from (i) an allegation that does not state with specificity that the Cloud Product is the basis of the Third Party Claim, (ii) the use or combination of the Cloud Product with any other material not developed by the Licensor, (iii) the use of the Cloud Product not in accordance with this Agreement, (iv) a modification of the Cloud Product by any other party than the Licensor.

14.7. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY, THE LICENSOR AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. THE LICENSOR WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF THE LICENSOR. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER THE LICENSOR NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY CLOUD PRODUCT OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY CLOUD PRODUCT WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE CLOUD PRODUCT WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, CLOUD PRODUCT, SYSTEM, OR DATA; (C) THE CLOUD PRODUCT (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE CLOUD PRODUCT) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ERRORS OR DEFECTS WILL BE CORRECTED; OR (E) THE CLOUD PRODUCT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

15. Limitation of liability

15.1. The Licensor shall be liable to the Licensee for the foreseeable and direct damages in connection with this Agreement, to the exclusion of indirect damages such as loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of Cloud Product, Data or information, failure of security mechanism, interruption of business, costs of delay or for any indirect or consequential damage of any kind.

15.2. Except as expressly and specifically provided in this Agreement, the Licensee assumes sole responsibility for results obtained from the use of the Cloud Product by the Licensee, and for conclusions drawn from such use. The Licensor shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Licensor by the Licensee, or in the case the Licensee does not implement the required actions.

15.3. In any event and without prejudice to the Licensee’s obligation to pay the Charges, the total liability of the Licensor to the Licensee arising under or in connection with this Agreement shall not in respect of any Year, exceed the amount actually paid or payable by the Licensee under this Agreement in the six (6) months immediately preceding the claim.

15.4. Nothing in this Agreement shall limit or exclude either Party’s liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation, gross negligence or willful or deliberate misconduct, or any other liability which cannot be limited or excluded by applicable law.

15.5. The Licensor will have no obligations or responsibility under this Agreement for issues caused by the use of any third-party hardware or cloud product not provided by itself.

15.6. If the Licensee enables or uses third-party products or services with the Cloud Product, the Licensee acknowledges that the third-party providers may access or use the Data of the Licensee as required for the interoperation of their products and services with the Cloud Product. The Licensee is solely responsible for the decision to permit any third-party provider or third-party product or service to use the Data of the Licensee. It is Licensee’s responsibility to carefully review the Agreement between itself and the third-party provider, as provided by the applicable third-party provider. THE LICENSOR DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD-PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD-PARTY PROVIDERS OR VENDORS.

16. Sub-licensing

16.1. The Licensee acknowledges and agrees that the Licensor may engage subcontractors without any prior written consent for the execution of this Agreement.

17. Termination

17.1. This Agreement is effective as of the Effective Date and expire on the date of expiration or termination of all Subscription terms.

17.2. The Licensor may terminate the Agreement if the Licensee uses the Cloud Product not in accordance with this Agreement.

17.3. Upon any expiration or termination of the Agreement, the right to use the Cloud Products terminates and the Licensee is not authorised to use the Cloud Products. Except where an exclusive remedy may be specified in the Agreement, the exercise by either Party of any remedy, including termination, will be without prejudice to any other remedies it may have under the Agreement, by law, or otherwise.

17.4. On termination or expiry of the Agreement, the Licensor shall delete any information relating to the business of the Licensee stored on any magnetic or optical disk or memory and all matter derived from such sources which is in its possession or under its control outside the premises of the Licensee, except the information the Licensor shall keep complying with laws, regulations or contractual obligations.

17.5. The following sections will survive any termination or expiration of the Agreement: Clause 10 “Fees and payment”, Clause 11 “Intellectual Property Rights”, Clause 12 “Confidentiality, Clause 14 “Warranties and Disclaimer”, Clause 15 “Limitation of liability”, Clause 20 “Governing Law – Dispute Resolution”, Clause 21 “Miscellaneous and General”.

17.6. Any rights, remedies, obligations or liabilities of the Parties that have accrued up to the Termination Date or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the Termination Date or expiry, shall not be affected.

18. Terms applying to Licensee’s Data

18.1. The Licensee retains all right, title and interest in and to its Data in the form submitted to the Cloud Products. Subject to this Agreement, and solely to the extent necessary to provide the Cloud Products to the Licensee, the Licensee grants the Licensor a worldwide, limited term licence to access, use, process, copy, distribute, perform, export, and display its Data. Solely to the extent that reformatting its Data for display in a Cloud Product constitutes a modification or derivative work, the foregoing licence also includes the right to make modifications and derivative works.

18.2. The use of Cloud Products must comply at all times with this Agreement, and all laws. The Licensee represents and warrants that: (i) the Licensee has obtained all necessary rights, releases and permissions to submit all its Data to this Agreement and to grant the rights granted to the Licensor in this Agreement and (ii) its Data and its submission and use as the Licensee authorises in this Agreement will not violate (1) any laws, (2) any third-party Intellectual Property Rights, privacy, publicity or other rights, or (3) any of Licensee or third-party policies or terms governing its Data. Other than the obligations described in Clause 13 “Personal Data” and the Licensor’s privacy policy, the Licensor assumes no responsibility or liability for Licensee’s Data, and the Licensee is solely responsible for its Data and the consequences of submitting and using it with the Cloud Products.

18.3. The Licensee will not submit to the Cloud Products (or use the Cloud Products to collect) any Sensitive Data. Notwithstanding any other provision to the contrary, the Licensor has no liability under this Agreement for Sensitive Data.

18.4. The Licensor has no obligation to monitor any content uploaded to the Cloud Products. Nonetheless, if the Licensor deems such action necessary based on Licensee’s violation of this Agreement, or in response to takedown requests that the Licensor receives, the Licensor may (1) remove Licensee’s Data from the Cloud Products or (2) suspend Licensee’s access to the Cloud Products. The Licensor will use reasonable efforts to provide the Licensee with advance notice of removals and suspensions when practicable, but if the Licensor determine that Licensee’s actions endanger the operation of the Cloud Product or other users, the Licensor may suspend the access or remove Licensee’s Data immediately without notice.

19. Publicity Rights

19.1. The Licensor may identify the Licensee as a customer in its promotional materials, unless the Licensee asks for stopping doing so at the following address:  support@totem.dev

20. Governing Law – Dispute Resolution

20.1. This Agreement and any disputes or claims arising out of or in connection with them or their subject matter or formation (including without limitation non-contractual disputes or claims) are governed by and interpreted under Moldovan law.

20.2. If either Party (hereafter referred to as the “First Party”) believes in good faith that the other Party (hereafter referred to as the ”Other Party”) has breached any term of this Agreement, then the First Party shall notify the Other Party, in writing setting forth in reasonable detail the nature of the alleged breach (hereafter referred to as the “Notice of Breach”). If the Other Party does not dispute the validity of the Notice of Breach, then it shall promptly undertake to cure the breach. If, however, the Other Party disputes the validity of the Notice of Breach, then the Parties shall comply with the following provisions in order to expedite the review, verification, cure and remedy of any such breach.

20.3. Any dispute to be resolved pursuant to this Agreement shall first be submitted for resolution to the authorised contacts of each Party. If such authorised contacts are unable to resolve the dispute within fourteen (14) days after the date on which the Notice of Breach is received by the Other Party (or such longer time as it mutually agreed in writing), then each Party shall be free to pursue whatever remedies hereunder, at law or in equity may be available to it in respect of the subject matter of the dispute as provided in Clause 20.4 hereunder.

20.4. Each Party irrevocably agrees that the courts of Chisinau, Moldova, shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or their subject matter or formation (including non-contractual disputes or claims), not already settled amicably by the Parties under Clauses 20.2 or 20.3.

21. Miscellaneous and General

21.1. Parties must for the duration of this Agreement maintain appropriate insurance cover with a reputable insurance company against all relevant liabilities and indemnities that may arise under this Agreement.

21.2. Nothing in this Agreement is intended to, or shall operate to, create a partnership between the Parties, or to authorise either Party to act as agent for the other, and neither Party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.

21.3. Each Party shall not be liable for any delay or breach in any of its obligations pursuant to this Agreement which originates from a force majeure event within the meaning of Article 606 of the Moldovan Civil Code.

21.4. If any provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any such invalid, unenforceable or illegal provision would be valid, enforceable and legal if some part of it were modified in any way, the Parties shall negotiate in good faith to modify such provision so that, as modified, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

21.5. No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

21.6. The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

21.7. Neither Party may assign (except by way of security), transfer, sub-contract or otherwise dispose of this Agreement and any of its rights or obligations thereunder, without the prior written consent of the other Party.

21.8. This Agreement constitutes the entire agreement and understanding between the Parties relating to its subject matter and supersedes any previous agreement between them relating thereto. In entering into this Agreement neither Party has relied on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether made innocently or negligently and whether or not made in writing) of any person (whether or not party to this Agreement) which is not expressly set out in this Agreement.