1.1 Unless the context otherwise requires, the following words have the following meanings:

1.2 In this Agreement words importing the singular include the plural and vice versa and words importing gender include any other gender.

1.3 The headings of Sections are for ease of reference and will not affect the construction of this Agreement.

1.4 The Statement(s) of Work take priority over the terms and conditions set out in this Part 2 of this Agreement. Where an express, written amendment is made in a Statement of Work to the terms and conditions set out in this Agreement, the terms and conditions set out in this Part 2 of this Agreement will be deemed amended, as appropriate in relation to that Statement of Work, but shall not apply in relation to any other Statement of Work. Except as set out in this Agreement, no other terms shall apply, even where specified in Client’s PO or otherwise.

2. Commencement and Duration

This Agreement will commence on the date that it is signed by each party. Each Statement of Work will commence on the Commencement Date. This Agreement will continue in full force and effect for so long as a duly executed Statement of Work remains outstanding and in effect between the parties. Each Statement of Work shall continue, subject to Section 11, until expiry of the Services or license provided thereunder. This shall not affect any terms which expressly or impliedly are intended to continue in force after termination.

3. Provision of Services and Application

3.1 SANDSIV will license the Application and provide the Services to the Client, described in one or more Statement(s) of Work, on the terms of this Agreement. Each Statement of Work entered into by the parties shall not be binding until signed by the authorized representative of each party.

3 .2Client will only use the SaaS and Application for its internal business purposes and to process information about its customers and those of Client’s affiliates, complying with such usage restrictions as are specified in the Statement of Work. Client will not directly or indirectly use the SaaS or Application to process information about or form any other person. In using the SaaS and Application, Client will (i) not permit unauthorized use of the SaaS or Application, (ii) not infringe or violate the intellectual property rights, privacy or any other rights of any third party or any application law, (iii) not submit information that is defamatory, obscene, threatening, abusive or hateful to the SaaS or Application, (iv) ensure that each user uses a unique user ID and password. Unless otherwise expressly permitted in a Statement of Work, in no event may Client use the SaaS or Application to process information or records for any third party other than an affiliate, or allow resale, timesharing, rental or use of the SaaS or Application in a service bureau or as a provider of outsourced services, or allow a competitor of SANDSIV to use or have access to the SaaS or Software.

3.3 SANDSIV may at any time, at its own expense, audit the Client’s usage of the Services and compliance with this Agreement including with any restrictions or limitations specified in the Statement of Work, and such audit shall be exercised in a manner so as to not substantially interfere with Client’s normal conduct of business.

Application and SaaS

3.4 SANDSIV will provide Client with access to the Application and SaaS as specified in the applicable Statement of Work, subject to the terms of this Agreement. Except to the extent otherwise stated in this Agreement, SANDSIV has the right to change, without any formal notice, the working methods, processes, hardware, data communication links, software, or any other system components used in the delivery of the SaaS or Services, or to change third party licensors or subcontractors, provided that the overall performance of the SaaS and Services is not materially degraded.

3.5 Where the delivery of the SaaS is via SANDSIV’s cloud, Client cloud or other designated cloud, it is delivered via the Internet or other data connection for which the Client is responsible, as further described in Section 4.1. The provision by SANDSIV of the SaaS’s functionality through SANDSIV’s cloud, Client cloud or other designated cloud does not include the provision of Client-side telecommunication data connections, subscriptions or capacity, hardware, other equipment, other software, or security and protection systems (hereinafter, “Facilities”). The Client shall, at its own cost, purchase and install such Facilities and shall assume full responsibility and liability for such Facilities, including configurations and settings that may or may not affect the SaaS. In relation to the provision of the Application , or where the provision of the SaaS’s functionality is through the Client’s cloud or its designated cloud provider, the Client is responsible for providing and maintaining (or procuring the provision and maintenance of) the whole infrastructure.

3.6 The Application and SaaS support a limited number of operating systems and require some helper applications, including Client software, and equipment. Supported combinations may change during the agreement period. SANDSIV maintains a list of current supported versions of required components and can provide this to the Client on request. SANDSIV has no obligation to provide access to the Application, SaaS or associated Services under this Agreement, if the Client uses software, software versions, equipment, environments or other facilities that are not supported by SANDSIV or approved by SANDSIV in writing and for the avoidance of doubt, the Client is responsible for all third party software and equipment used in its environment.

3.7 Client shall allow any updates made available by SANDISV to the SaaS. If an update is required, the Client shall provide access to its infrastructure and instance of SaaS as reasonably required by SANDSIV and shall otherwise reasonably cooperate with SANDSIV for this purpose. In relation to the Application license, Client is not obliged to implement updates, however, may do so at any time subject to SANDSIV’s approval.

3.8 The Client will not be entitled to any form of access to SANDSIV’s servers (either read or write access), databases, software or hardware other than the access provided by and through the SaaS.

3.9 The Client shall be responsible for ensuring that only designated, named users use the Application and Services.

3.10 The subscription for the Application license and SaaS is subject to the auto-renewal provisions set out in the applicable Statement of Work.

3.11 Standard Support

3.11.1 Standard Support for the Application is as described in the Support Agreement attached to the Statement of Work, if applicable. Support will only be provided for as long as Client has a current annual Support Agreement in place with SANDSIV. If Client decides in its sole discretion not to renew the Standard Support for the Application, support shall cease automatically at the end of the then current term. Client shall not have the option to subsequently renew the Support for its version of the Application. Instead, if Client decides it wishes to recommence Standard Support, it will be required to upgrade to the then current version of the Application (at the current list price) prior to recommencing Standard Support.

3.11.2 SANDSIV reserves the right at all times without prior notice to suspend the Client’s access to, and/or the provision of, the SaaS for such period as is necessary to carry out emergency system maintenance, emergency upgrading, emergency testing and/or repair, but it shall endeavour to give prior notice to the Client where reasonably practicable.

3.11.3 SANDSIV reserves the right at all times without prior notice at its sole discretion to suspend access to the SaaS (but is under no obligation to monitor) and/or to remove or refuse to host material or content where there is any content that causes harm or may in SANDSIV’s sole opinion cause harm to SANDSIV’s servers or to the provision of the SaaS, and the Client shall not store, distribute or transmit any such content on, to or through the SaaS. SANDSIV will not be liable to the Client for any loss or damage caused as a result of it suspending, removing or refusing to host material or content pursuant to this Section. In exercising its rights under this Section 3.11.3 SANDSIV shall exercise due caution.

3.12 Technical Set Up and Implementation

3.12.1 Where SANDSIV provides technical set up or implementation services, as specified in a Statement of Work, SANDSIV shall deliver and configure the Application and SaaS to provide a working instance using out of box functionality.

3.12.2 Upon delivery of the technical set up or implementation services, the Client shall test the Application and SaaS within 10 business days. Provided that the Client does not object in writing to SANDSIV within the said 10 business day period, the Application, SaaS and technical set up and implementation services are deemed accepted by the Client.

3.12.3 Any error which arises after the acceptance period referred to in Section 3.13.2 shall be raised through the normal support channels provided for in the Support Agreement referred to in Section 3.11 as may be amended in the applicable Statement of Work.

3.13 Service Level

The availability service level for the SaaS is as described in the Service Level schedule attached to the applicable Statement of Work, if applicable.

13.14 Professional Services

13.14.1 Where SANDSIV provides Professional Services pursuant to a Statement of Work, the Client shall at its own expense provide SANDSIV with all necessary documents or other materials, all data or other information requested by SANDSIV, and access to all personnel under the Client’s authority necessary for the proper performance of this Statement of Work and the Professional Services, within sufficient time to enable SANDSIV to provide the Professional Services in accordance with this Agreement.

13.14.2 Upon delivery of Professional Services works by SANDSIV, the Client must examine the results immediately. Provided the Client does not make any objection to the submitted work in writing to SANDSIV within 10 business days of respective delivery (including interim delivery of work in progress), the Professional Services are deemed accepted.

13.14.3 Unless otherwise specified in the applicable Statement of Work, SANDSIV shall retain and own all right, title and interest in and to and all Intellectual Property Rights and other ownership rights in and to the work product, reports, concepts, works, information, code, designs and other materials developed or created by SANDSIV for the Client (“Deliverables”). The Client shall be entitled to use such Deliverables on the terms and for the duration of this Agreement and the applicable Statement of Work solely in conjunction with its authorised use of the Services.

4. Client’s Obligations

4.1 Client shall be responsible for Client’s equipment necessary to access or implement the Application or SaaS, including all computer equipment, software, telecommunications, and high-speed connections to the internet, to the extent they are needed to operate and/or access the Application or SaaS from Client’s site of business. Client is also responsible for ensuring that all Client Data that may be used by Client pursuant to or in connection with this Agreement will not (i) violate any law, regulation, or third-party intellectual property right through such use, (ii) contain programming routines intentionally designed to disrupt or destroy the Services or host extranet or (ii) contain any obscene, illegal, harassing or racially offensive material.

4.2 The Client will:

4.2.1 use the Application, SaaS and associated Services in accordance with SANDSIV’s reasonable operating instructions as made available to the Client in writing (including via email and support channels) from time to time and the terms of this Agreement;

4.2.2 be responsible for complying with its obligations under any applicable statutory provisions in any relevant jurisdiction in respect of data privacy or information processed and stored;

4.2.3 be responsible for complying with any third-party terms and conditions applicable to locally installed applications to be used in conjunction with the Application, SaaS and associated Services;

4.2.4 ensure that any user authorised to use the Application, SaaS and associated Services is bound by the terms of this Agreement prior to accessing the Application, SaaS and Services and complies with the same; and

4.2.5 in a timely manner, inform SANDSIV if Client is planning to materially change its usage behaviour described in the Statement of Work. Without prejudice to the foregoing, SANDSIV shall be entitled to charge additional fees or to suspend or terminate pursuant to Section 11 where the Client changes the usage described in the Statement of Work or exceeds the limitations and/or restrictions specified in the Statement of Work and does not reduce the usage, users and other parameters to comply with the said restrictions and limitations within 14 calendar days of exceeding the limitations and/or restrictions specified.

4.3 The Client will be responsible for maintaining the confidentiality of its passwords and for procuring that all users keep their own passwords confidential. If the Client becomes aware of any unauthorised access to the Application, SaaS or associated Services by any person who uses a password without the Client’s or SANDSIV’s authorisation, the Client will immediately notify SANDSIV and request that such password is disabled.

4.4 Where the Client wishes to dispute an invoice or part of an invoice it will do so as soon as reasonably practicable and in any event within 15 working days of issuance of the applicable invoice, after which period the Client will have no right to dispute any invoice save in the case of manifest error.

5. Data Protection

5.1 If SANDSIV processes any personal data, such as Personally Identifiable Information as used in US privacy law and information security or Personal Data as used in the EU General Data Protection Regulation (2016/679/EU) (“GDPR”) and subsequent applicable legislation on the Client’s behalf, or any Client Data which comprises such personal data, when performing its obligations under this Agreement, the parties record their intention that the Client will be the data controller and SANDSIV will be the data processor and in any such case:

5.1.1 the Client, as data controller, has processed and will continue to process the relevant personal data in accordance with the relevant provisions of the applicable data protection laws and the processing does not violate those laws. In particular the parties acknowledge that the Client is solely responsible for determining what personal data is uploaded to the Application or Services and that SANDSIV does not monitor or know what data is involved as its processing activities are incidental to the provision of the Application and Services and it does not need the personal data in order to provide the Services. Without prejudice to the foregoing, the Client undertakes that where the processing of any personal data is subject to the GDPR or any other data protection legislation, it shall not upload or use any personal data in or to the Services until a data processing addendum between SANDSIV and the Client is in full force and effect. A copy of SANDSIV’s template Data Processing Addendum is available on request;

5.1.2 the Client will reasonably instruct SANDSIV throughout the duration of this Agreement to process the relevant personal data exclusively on the Client’s behalf and in accordance with the applicable data protection laws and SANDSIV shall promptly comply with any request from the Client requiring SANDSIV to amend, transfer or delete the relevant personal data insofar as that is under SANDSIV’s control;

5.1.3 at the Client’s reasonable request and at Client’s cost and expense (consultancy fees may apply), SANDSIV shall provide to the Client a copy of all relevant personal data held by it in the format and on the media as agreed;

5.1.4 SANDSIV shall promptly inform Client if any of the relevant personal data are lost or destroyed or become damaged, corrupted, or unusable. Where reasonably possible, SANDSIV will restore such relevant personal data at its own expense from its backups (where applicable);

5.1.5 the Client will ensure that it is entitled to transfer the relevant personal data to SANDSIV so that SANDSIV may lawfully process the personal data in accordance with this Agreement on the Client’s behalf;

5.1.6 the Client will ensure that the relevant personal data is accurate and is up-to-date;

5.1.7 SANDSIV will process the personal data only in accordance with the terms of this Agreement, any data processing agreement and any lawful instructions reasonably given by the Client from time to time;

5.1.8 If, in SANDSIV’s opinion the instructions provided by the Client infringe applicable legislation or regulation, SANDSIV will where legally permissible duly inform the Client about such risk of infringement and may reasonably refuse to comply with such infringing instructions;

5.1.9 each party shall take and maintain throughout the term of the Agreement appropriate technical and organisational measures against unauthorised or unlawful access, processing of the personal data or its accidental loss, destruction or damage; and

5.1.10 the Client is solely responsible for reviewing the security documentation provided by SANDSIV and evaluating for itself whether the Services and such security measures together with SANDSIV’s commitments under this Section 5 will meet the Client’s needs, including with respect to any security obligations of the Client under GDPR.

5.2 The Client acknowledges that SANDSIV may perform parts of the Services through such third-party service provider it deems necessary in performing the Services which may involve the transfer of personal data from one country to another, including a transfer outside The Middle East and North Africa (“MENA”) (e.g., to Switzerland, the UK, Ukraine and other countries where SANDSIV has subcontractors or third-party providers). The Client shall ensure that it is entitled to transfer the relevant personal data to SANDSIV so that SANDSIV may lawfully process and transfer the personal data in accordance with this Agreement pursuant to this Section, and SANDSIV will take appropriate steps to protect personal data in accordance with this Agreement and applicable data protection laws. Prior to any transfer of personal data to SANDSIV the parties will determine and agree the transfer mechanism, and prior to any transfer of personal data by SANDSIV, SANDSIV will determine and record the basis for a transfer. SANDSIV shall be responsible for the acts of any third-party service provider used in the performance of the Services. Third parties involved in the provision of the Services at the date of this Agreement shall be specified in the applicable Statement of Work and any associated data processing agreement, together with their location. If SANDSIV requires to transfer personal data to any other location or third-party service provider, it shall notify the Client in advance in accordance with the data protection agreement, providing reasonable details about the basis of the transfer.

5.3 The Client shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data and for ensuring that all necessary consents and notifications are in place and have been given to enable lawful transfer to and processing by SANDSIV under this Agreement and the data processing agreement to be entered into in accordance with Section 5.1.1.

5.4 The Client acknowledges and agrees that where it instructs or authorises SANDSIV to use Client Data to improve the performance of the Application used in the Software as a Service this will be subject to the data processing agreement to be entered into in accordance with Section 5.1.1.

5.5 The parties agree that except as otherwise specified in a SOW or data processing addendum, SANDSIV’s Business Continuity Plan, Data Backup, Data Protection and Recovery Policy and General Data Privacy Directive will apply in the provision of the SaaS.

6. Warranties and Indemnification

6.1 SANDSIV hereby warrants to the Client that it will provide the Services:

6.1.1 with due skill and care

6.1.2 using appropriately qualified and experienced personnel; and

6.1.3 in accordance with current industry standards.

6.2 SANDSIV warrants that it owns or otherwise has sufficient rights in the Application and SaaS to grant to the Client the rights granted and to provide the Services under this Agreement.

6.3 The parties warrant that the persons executing this Agreement are authorised to do so on behalf of the relevant parties and that the execution, delivery and performance of this Agreement does not in any way conflict with any other agreement including, but not limited to, any policy or guidelines binding on those persons.

6.4 The Client warrants that:

6.4.1 it will use reasonably commercial endeavours, including using up-to-date virus-checking routines, to ensure that its data and content transmitted to the Application and Services remain free from viruses and other malicious code;

6.4.2 in using the Application and Services, it will comply with all applicable laws;

6.4.3 it will not upload any material or content to the Application or SaaS which causes or may cause harm to SANDSIV’s servers or to the provision of the Application and SaaS.

6.5 Save to the extent that any claim arises from the actions of SANDSIV or its other clients, and such actions were neither at the Client’s request nor required under this Agreement, the Client will indemnify SANDSIV and its respective directors, officers, employees, agents and sub-contractors, from and against any claims made against any of them by a third party arising in connection with:

6.5.1 the Client’s use of the Application, Services or use of Client Data in violation of this Agreement;

6.5.2 liability resulting directly or indirectly from Client Data;

6.5.3 any claimed violation by SANDSIV of such laws, rules, policies and procedures which is or are a consequence of the Client failing to inform SANDSIV that the Client’s content or data transmission requires SANDSIV to obtain licences, permits and/or approvals; provided that SANDSIV: (1) notifies the Client in writing as soon as is reasonably possible and in any event within 30 days of becoming aware of any such claim; (2) makes no admission or settles the claim, or otherwise does anything to prejudice Client’s conduct of the claim without Client’s prior written consent; and (3) provides all reasonable assistance in conducting all negotiations and litigation, if required to do so by Client.

6.6 The Client will indemnify SANDSIV against all loss and damage sustained by SANDSIV as a result of or in connection with any breach by the Client or its users of SANDSIV’s Intellectual Property Rights.

6.7 SANDSIV will indemnify Client from and against any third party claim made against the Client that the use of the Application/SaaS in accordance with this Agreement infringes the copyright, trademarks or rights in confidential information of that third party, provided the Client: (1) notifies SANDSIV in writing as soon as is reasonably possible and in any event within 30 days of becoming aware of any alleged applicable infringement; (2) makes no admission or settles the claim, or otherwise does anything to prejudice SANDSIV’ conduct of the claim without SANDSIV’ prior written consent; and (3) provides all reasonable assistance in conducting all negotiations and litigation, if required to do so by SANDSIV. SANDSIV is authorised, at its own expense, to defend or, at its option, to settle such claims. In the defence or settlement of any claim, SANDSIV will, at its own cost and sole option, either obtain the right for the Client to continue using the Application/SaaS, or replace or modify the Application/SaaS so that it is no longer infringing, or terminate this Agreement and reimburse the Client for the prepaid charges under this Agreement without any additional liability to the Client.

6.8 In no event shall SANDSIV, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:

6.8.1 a modification of the Application or SaaS by anyone other than SANDSIV or a party under SANDSIV’s direct control; or

6.8.2 the Client’s use of the Application or SaaS in a manner contrary to the instructions given to the Client by SANDSIV; or

6.8.3 the Client’s use of the Application or SaaS after notice of the alleged or actual infringement from SANDSIV or any appropriate authority.

7. Charges and Payment

7.1 In consideration of SANDSIV providing the Application and Services under this Agreement, the Client will pay the Charges to SANDSIV as set out in the applicable Statement of Work. Subscription Fees and Support fees are payable by the Client yearly in advance on execution of the applicable Statement of Work and on any anniversary thereof, on the terms and conditions specified in the Statement of Work. Unless otherwise specified in the applicable Statement of Work, SANDSIV shall invoice Client for the Services upon execution of the Statement of Work. Payment of any additional charges falling due under this Agreement shall be made within 10 days of the date of SANDSIV’s invoice.

7.2 All Charges quoted by SANDSIV are exclusive of any applicable Value Added Tax and any other applicable local, regional or national taxes, levies or charges, for which the Client will be additionally liable at the rate applicable at the date of SANDSIV’s invoice.

7.3 Payment of all amounts due to SANDSIV will be made by the Client in the agreed currency by wire transfer or by such other method as may be agreed or specified from time to time by SANDSIV. The Client will be responsible for payment of all its bank charges.

7.4 Payment of all sums due to SANDSIV must be made by the Client in full without any set-off (whether at common law or otherwise), deductions or withholding for or on account of any taxes, fees, levies, imposts, duties or charges of any nature imposed by any governmental authority on any payment due hereunder, except as required by law.

7.5 If the Client fails to make a payment (which has not been disputed in accordance with Section 4.4) to SANDSIV in accordance with this Section 7, SANDSIV will, without prejudice to its other rights, be entitled to (i) charge interest on the overdue amount at a rate of 1.5% per month of the amount outstanding, calculated from 30 days after the invoice date until the date of payment, and (ii) recover on demand from the Client the costs (including attorneys’ costs) incurred by SANDSIV in collecting or recovering the payment due from the Client. The enforcement of a higher claim for damages caused by delay remains unaffected.

7.6 Unless otherwise specified in the applicable Statement of Work, SANDSIV shall have the right to increase the Charges not more than once in any 12-months.

8. Intellectual Property Rights

8.1 The Intellectual Property Rights in the Application/SaaS, any reference manuals and written materials (including any derivative works, improvements, modifications, customisations, alterations or additions made at the request of, or as a result of any feedback or suggestion from, the Client to the Application/SaaS, reference manuals and materials, or resulting or arising through the use by the Client or users of the Application, SaaS and/or Services) will vest in, remain with and be owned by SANDSIV. The Client will not, and will ensure that users do not, copy, modify or adapt any of such Application, SaaS, manuals or written materials.

8.2 SANDSIV hereby grants to the Client, on and subject to the terms and conditions of this Agreement, a non-exclusive, non-transferable, non-sublicensable licence to allow authorised users to access the Application or SaaS in the designated environment or on the designated server, reference manuals and written materials and associated Services and to use the Application, Services, manuals and materials solely for the Client’s internal business purposes and in accordance with this Agreement and for the term stated in the applicable Statement of Work. Unless otherwise specified in the applicable Statement of Work, the licence is granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client unless otherwise agreed in the Statement of Work. Except for the rights expressly granted aforesaid, all rights are expressly reserved to SANDSIV and no express or implied licence or right of any kind is granted to Client.

8.3 The Client hereby grants to SANDSIV a non-revocable, non-exclusive, non-transferable, royalty free licence to use any Client Intellectual Property Rights provided to SANDSIV or used in the Services to enable SANDSIV to provide the Application and Services and exercise its rights under this Agreement.

8.4 The Client shall not, and warrants that its users shall not:

8.4.1 (attempt to) copy, duplicate, modify, create derivative works from or distribute all or any portion of the Application; or

8.4.2 (attempt to) reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Application or SaaS; or

8.4.3 access all or any part of the Application, SaaS or Services in order to build a product or service which competes with the Application and/or the Services; or

8.4.4 save as expressly provided in Section 8.2, use the Application, Licensed Materials or Services to provide services to third parties or attempt to obtain, or assist third parties in obtaining, access to the Application.

8.5 All right, title and interest in and to the Deliverables (as defined in Section 3.14.3) and all Intellectual Property Rights and other ownership rights in and to the Deliverables shall belong to and vest in SANDSIV pursuant to Section 3.14.3, unless otherwise agreed in the applicable Statement of Work.

9. Confidentiality

9.1 Each party to this Agreement (the “Receiving Party”) agrees to keep confidential and not copy, adapt, alter or divulge to any third party any and all Confidential Information supplied to or observed by its agents, employees or subcontractors in the course of performing this Agreement which belongs to or relates to the other party (the “Disclosing Party”) or the other party’s business, organisation, work methods, know-how, clients, programs or products, or which belongs to or relates to any member of the other party’s group.

9.2 Each party will immediately inform the other if it becomes aware of the possession, use or knowledge of, or attempts to gain access to, any of the Confidential Information by any person not authorised to possess, use or have knowledge of the Confidential Information and will at the request of the other party provide such reasonable assistance at its own expense as is required by such other party to deal with such event.

9.3 The provisions of Sections 9.1 and 9.2 will not apply to any information which:

9.3.1 is in or enters the public domain other than by breach of Sections 9.1 and 9.2; or

9.3.2 is obtained from a third party who is lawfully authorised to disclose such information; or

9.3.3 is independently developed without reference to the Confidential Information of the Disclosing Party and such independent development can be proved to the reasonable satisfaction of the Disclosing Party; or

9.3.4 is authorised for release by written consent of the Disclosing Party; or

9.3.5 is required to be disclosed by law or order of a court of competent jurisdiction, provided the Receiving Party uses reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and has given the Disclosing Party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Section, it takes into account the reasonable requests of the other party in relation to the content of this disclosure.

10. Limitation of Liability and Disclaimers

10.1 This Section 10 sets out the entire liability of SANDSIV (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client:

10.1.1 for any damages arising under or in connection with this Agreement;

10.1.2 in respect of any use made by the Client of the Services, the Application, or any part of them; and

10.1.3 in respect of any representation, misrepresentation, statement or tortious act or omission arising under or in connection with this Agreement.

10.2 Except as expressly and specifically provided in this Agreement:

10.2.1 the Client assumes sole responsibility for results or other output obtained from the use of the Application, and its reports and the Services by the Client and the Users;

10.2.2 SANDSIV shall have no liability for any damage caused by errors or omissions in any Client Data or any other information, instructions or content provided to SANDSIV by the Client in the Application or in connection with the Services, or any actions taken by SANDSIV at the Client’s direction; and

10.3 Subject to Section 10.5:

10.3.1 Neither party shall be liable to the other whether in contract, tort (including for negligence and breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of revenue, loss of profits, loss of business or contracts, loss of actual or anticipated savings, depletion of goodwill and/or similar losses or loss of or corruption to data or information, or pure economic loss, or for any special, incidental, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement, even if it has been advised of the possibility of the same; and

10.3.2 Each party‘s total aggregate liability in contract (including in respect of any indemnity), tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement or in connection with the Services shall be limited to the charges paid by Client for the applicable Services under a Statement of Work during the 12 months preceding the date on which the claim arose (or, if less than 12 months, during the term of the applicable Statement of Work).

10.4 SANDSIV shall be entitled to raise the objection of contributory negligence. Client is under a duty to back up its data and to maintain malware defences with the best available technology.

10.5 With respect to death and personal injury, as well as claims arising under product liability legislation, the statutory provisions shall apply without limitations.

11. Suspension and Termination

11.1 Either party may (without prejudice to its other rights) terminate each or any Statement of Work, and/or in relation to Section 11.1.2 this Agreement, by notice in writing to the other if the other party:

11.1.1 defaults in due performance or observance of any material obligation under this Agreement and (in the case of a remediable breach) fails to remedy the default within thirty days of receipt of the terminating party’s notice so to do, and such termination will take effect either immediately or at a date specified in the notice provided that this provision will not apply to a failure to pay any sum by the due date; or

11.1.2 becomes bankrupt or insolvent, or if the other party’s business is placed in the hands of a receiver or trustee, whether voluntarily or otherwise, and such termination will take effect either immediately or at a date specified in such notice.

11.2 SANDSIV will have the right to terminate the applicable Statement of Work on serving written notice with immediate effect if (i) the Client does not pay any sum within 10 days of receiving a written reminder from SANDSIV provided that the sum has not been disputed in good faith in accordance with Section 4.4, or (ii) the Client changed its usage behaviour or exceeds the restrictions and/or limitations specified in the Statement of Work without notifying SANDSIV pursuant to Section 4.2.5 and/or agreeing an increase in the Charges payable to SANDSIV where it does not change its usage or users or other parameters back promptly to align with the description of usage behaviour, limitations and restrictions set forth in the Statement of Work.

11.3 SANDSIV may also suspend the provision of the Services under this Agreement or a Statement of Work on giving not less than 2 Business Days’ notice in writing if circumstances arise in respect of which it has the right to terminate this Agreement or the applicable Services and Statement of Work under Section 11.1 or 11.2, and may continue the suspension until the relevant payment has been made or the relevant default has been cured.

11.4 Client may suspend its payments under the applicable Statement of Work and on giving no less than 2 Business Days’ notice in text form if circumstances arise in respect of which it has a right to terminate this Agreement under Section 11.1.

11.5 Termination of a Statement of Work shall not in itself operate to terminate this Agreement or any other Statement of Work then in force. Subject to Section 11.6, this Agreement shall continue in force until all Statements of Work have terminated or expired.

11.6 Either party may terminate this Agreement pursuant to Section 11.1.2. Termination of this Agreement shall operate to terminate all Statements of Work then in force.

12. Consequences of Termination

12.1 On termination of any Statement of Work for any reason:

12.1.1 all licences granted under this Agreement and/or the applicable Statement of Work shall immediately and automatically cease (provided that this shall not apply to any perpetual licences of the Application, save where such licence is terminated by SANDSIV pursuant to Section 11.1); and

12.1.2 the Client will immediately stop accessing the Services specified in that Statement of Work; and each party shall return and make no further use of any equipment, property, materials, Confidential Information (excluding Client Data) and other items (including all copies of them) belonging to the other; and

12.1.3 each party shall return and make no further use of any equipment, property, materials, Confidential Information (excluding Client Data) and other items (including all copies of them) belonging to the other; and

12.1.4 SANDSIV may destroy or otherwise dispose of the Client Data relating to that Statement of Work in its possession unless it receives, no later than 14 days after the effective date of termination of this Agreement, a notice in text form from Client to allow it to download the Client Data from SANDSIV’s servers. In such case, SANDSIV shall allow the Client to download its data within 10 business days of such request, provided that the Client has, at that time, paid all Charges outstanding.

12.2 Termination of this Agreement and/or applicable Statement of Work will not affect the obligation of the Client to pay SANDSIV any charges or other payments which are due and unpaid at the date of termination.

12.3 Any termination of this Agreement and/or Statement of Work will not affect any accrued rights or liabilities of either party nor will it affect the coming into force or the continuance in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.

13. Force Majeure

13.1 Neither SANDSIV nor the Client will be liable to the other under this Agreement for any failure to perform its obligations hereunder other than payment obligations or for any loss or damage which may be suffered by the other party due to any circumstances beyond its reasonable control including, without limitation, any Act of God, failure or shortage of power supplies, flood, lightning or fire, strike or other industrial action, the act or omission of Government or other competent regulatory authority, war, military operations, epidemic, quarantine restrictions or riot, any absences or unavailability of staff at SANDSIV or Client, and any loss of, or disruption to, any of their facilities and any disruption of, or interruption to, any services such as electronic transmission of monies, or to services provided by utilities providers, including (but not limited to) electricity, gas, water, sewage, telecommunications and data services. SANDSIV bears no responsibility for any adverse effect on the Services (including, but not limited to, server failure or slow response time) caused by any acts of the Client in violation of this Agreement.

13.2 If either the Client or SANDSIV wishes to rely upon this Section 13 it will send written notice to the other party explaining the relevant force majeure circumstances as soon as reasonably possible and the party suffering the event of force majeure will take all reasonable steps to mitigate the effects of the force majeure event and will liaise with the other party regularly during the period of the force majeure event. For the avoidance of doubt, this clause shall not operate to suspend payment obligations of Client, save to the extent that the bank transfer systems have been affected by the force majeure event and that no other reasonable or effective payment mechanism is available.

14. General

14.1 This Agreement is personal to the Client and may not be assigned to any third party in whole or in part, including by sale of assets, merger, consolidation or otherwise, without the prior written consent of SANDSIV, not to be unreasonably withheld.

14.2 SANDSIV has the right to assign the Services, this Agreement or any part of this Agreement or Statement of Work or the Services to a SANDSIV group company. In the event of such assignment, SANDSIV warrants that such SANDSIV group company shall comply with the applicable terms of this Agreement. SANDSIV has the right to delegate or subcontract any part of the Services to a SANDSIV group company or such third-party service provider it deems appropriate. In the event of any such delegation or subcontracting, SANDSIV shall remain responsible for all acts and omissions of the applicable SANDSIV group company and/ or third-party service provider.

14.3 Subject to Section 1.4, the terms of this Agreement will not be varied or amended unless such variation or amendment is agreed by separate agreement specifically drafted for purpose and executed by duly authorised representatives from the Client and SANDSIV.

14.4 If any provision of this Agreement or any Statement of Work is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, the provision will be severed and the remainder of the provisions of this Agreement will continue in full force and effect as if this Agreement had been executed with the invalid, illegal or unenforceable provision eliminated. In the event of a holding of invalidity so fundamental as to prevent the accomplishment of the purpose of this Agreement, the Client and SANDSIV will immediately commence good faith negotiations to remedy such invalidity.

14.5 No failure or delay on the part of either of the parties to this Agreement to exercise any right or remedy under this Agreement will be construed or operate as a waiver nor will any single or partial exercise of any right or remedy preclude the further exercise of such right or remedy as the case may be. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights or remedies provided by law.

14.6 This Agreement constitutes the entire understanding between the parties relating to the subject matter hereof unless any representation or warranty made about this Agreement was made fraudulently and, save as may be expressly referred to or referenced in this Agreement, supersedes all prior representations, writings, negotiations or understandings with respect hereto.

15. Notices and Communications

15.1 Any notice or other document to be given under this Agreement will be in writing and will be deemed to have been duly given if left at or sent by hand or by registered post, or by electronic media (including email) to a party at the address set out in the signature section of this Agreement or such other (email) address as one party may from time to time designate by written (email) notice to the other.

15.2 Any such notice or other document will be deemed to have been received by the addressee three working days following the date of dispatch if the notice or other document is sent by registered post, or simultaneously with the delivery or transmission if sent by hand or if given by facsimile, or at the moment of receipt of a SOW for receipt in the case of email or other electronic means.

16. Anti-Corruption

The Client has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of SANDSIV’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If the Client learns of any violation of the above restriction, it will use reasonable efforts to promptly notify SANDSIV’s Legal and Compliance Department at legal@sandsiv.com. 

17. Jurisdiction

This Agreement will be governed by and construed and interpreted in accordance with the laws of KSA, without regard to its conflict of law principles or to the United Nations Convention on the International Sale of Goods. Unless otherwise specified in the Statement of Work, the parties agree to submit to the exclusive jurisdiction of the courts in Switzerland with respect to any claim or matter arising under this Agreement.