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Remaris and Start – General Terms and Conditions

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Monri Payments d.o.o. (hereinafter referred to as: Monri).

AGREEMENT regarding the Remaris SaaS (Software as a Service) POS (Point of Sale) solution—GENERAL TERMS AND CONDITIONS

 

INTRODUCTORY PROVISIONS
These General Terms and Conditions of the Agreement   (hereinafter referred to as: “Terms and Conditions”) represent contractual provisions applicable to the services under agreements concluded between Monri and the other Party (hereinafter referred to as: “the User”, together with Monri: “the Parties”), offers, orders and other legal bases (hereinafter referred to as: “the Agreement”) which provide for the application of these Terms and Conditions.
In the event of any discrepancy between the provisions of the Terms and Conditions and this Agreement, the Agreement provisions shall prevail.

 

PAYMENT

Monri shall issue invoices to the User for the services provided by the last day of each calendar month (the User shall be charged the full monthly fee regardless of the service commencement date or the number of days the service was active during the month). The User shall pay the said fee within 10 (ten) days of receipt of the invoice, or submit a reasonable objection to all or part of the fee within the same timeframe. Should the User not submit an objection within the said timeframe, such an invoice shall be considered as accepted. Should the Parties fail to reach an agreement on the disputed invoice within 15 (fifteen) days of the invoice issuance date, Monri may suspend the provision of services under the Agreement.
Should the prices be listed in EUR or other foreign currency, payment shall be made in the HRK equivalent according to the mean exchange rate of the Croatian National Bank as of the invoice issuance date.

Prices do not include VAT, which shall be paid by the User in the amount specified in the invoice.
Should the User be in default of payment for more than 15 (fifteen) days, Monri may suspend the performance of its obligations.

 

DELIVERY AND ACCEPTANCE
Monri shall not be obliged to provide services not explicitly specified in the Agreement.
Monri shall not be responsible for the proper and timely delivery of goods/services in accordance with the Agreement should the User fail to perform any of its contractual obligations.
Should the User fail to timely and properly provide/ensure the prerequisites/conditions necessary for the instalment and activation of the goods/services of as notified by Monri, including the personnel’s attendance of the training, Monri may charge the User for the service as if it had been provided, including damages suffered.
The deadlines for the delivery of goods/services by Monri shall automatically be extended for any period during which the delivery of goods/services was not possible due to reasons not attributable to Monri. In the event of a delay of more than 10 (ten) days, the Parties shall agree on new deadlines.
Receipt of goods in terms of quantity shall be confirmed by mutual execution of the delivery receipt.
The delivery and acceptance of services shall be confirmed by mutual execution of the protocol.
Should one of the Parties refuse to execute the abovementioned delivery receipt and protocol without a justified reason, the delivery and acceptance shall be considered to be properly performed on the delivery date even without the execution of the said documents.

 

INTELLECTUAL PROPERTY
For the duration of the Agreement, and subject to the payment of fees, Monri grants the User a non-exclusive and non-transferable right to use Monri’s intellectual property to the extent necessary for the use of the agreed services.
The User shall not, directly or indirectly, without Monri’s prior written consent (under penalty of voidability):

  1. a) modify, translate, or create derivative works based on Monri’s intellectual property;
  2. b) decompile, disassemble, reverse engineer, or otherwise attempt to reconstruct, identify, or discover the source code, underlying ideas, or algorithms of Monri’s intellectual property by any means;
  3. c) sell, rent, lease, license, sublicense, duplicate, market, or distribute Monri’s intellectual property, or use Monri’s intellectual property for timesharing or hosting, unless explicitly permitted under the Agreement;
  4. d) remove any proprietary notices, labels, or trademarks from Monri’s products;
  5. e) grant access to, or disclose information regarding, Monri’s intellectual property, transaction execution logic, or corresponding know-how;
  6. f) grant third parties access to, or disclose information regarding, the database structures of Monri’s intellectual property.

 

THIRD-PARTY SOFTWARE Monri shall not be responsible for the time required to resolve incidents related to third-party software. Should the incident be related to a third-party software implemented by Monri, Monri shall inform the third-party software manufacturer and promptly implement the solution provided by the third-party software manufacturer into the software system.

 

COMPENSATION FOR DAMAGES
To the maximum extent permitted by applicable law, Monri hereby disclaims all warranties, whether express, implied, statutory, or otherwise, and Monri specifically disclaims all:

  1. a) implied warranties of merchantability,
  2. b) warranties of fitness for a particular purpose,
  3. c) warranties arising from course of dealing, usage, or trade practice.
    To the maximum extent permitted by applicable law, Monri provides no warranty that the services shall:
  4. a) meet the requirements of the User or any other person;
  5. b) achieve any intended result,
  6. c) be compatible or operate with any other software, system, or other services,
  7. d) be secure, accurate, complete, free of harmful code, or error-free.
    Should a Party suffer damage as a result of non-performance of the contractual obligations, including, but not limited to, improper provision of services and/or delay in the delivery of services, the Party liable for the damage shall be obligated to compensate only direct, actual, foreseeable, and proven damage.

Neither Party shall be liable for any indirect damages, loss of data, non-material damages, damages unforeseeable at the time of concluding the Agreement, or lost profits.
Monri shall also not be liable for movement, destruction or loss of data or documents.
The Party invoking the breach of the Agreement shall be obliged to take all necessary steps to reduce the damage caused by such breach, otherwise the other Party may request a reduction in the amount of compensation for damages.
Monri shall not be liable for the damage caused by using the goods and/or services.
Compensation for damages caused by the non-performance of contractual obligations shall be limited to an aggregate amount which, on all grounds, may not exceed 70% of the annual value of the Agreement in the year in which the loss event occurred, for the entire duration of the Agreement. This limitation shall be cumulative; i.e., the sum of multiple claims may not exceed the limitation specified herein for any single year. The annual value of the Agreement shall mean the total net value of the compensation that the User paid to Monri in the year in which the damage was suffered. Should the damage occur prior to the expiration of the first 12 (twelve) months of application of the Agreement, the annual value for the purposes of this provision shall be calculated by determining the average monthly invoice value during the period of application of the Agreement and multiplying that value by a factor of 12.
Should the damage be caused intentionally or by gross negligence, or in the case of damage suffered by Monri due to a breach of Monri’s intellectual property rights by the User, such damage shall be compensated in full.

 

AGREEEMENT TERM, CANCELLATION AND TERMINATION
The term of the Agreement shall be determined by the Agreement.
Each Party may cancel the Agreement at any moment and without providing any reason, in writing, with a 30 (thirty) day notice period.
In the event of a material breach of the contractual obligations, a Party shall send a written and reasoned notice to the other Party, specifying evidence of the breach committed and its severity, and granting an additional reasonable period to fulfil the obligations, which shall not be less than 30 (thirty) days from the date of receipt of the notice. Should the Party fail to perform its contractual obligations within the specified period, the other Party may terminate the Agreement by written declaration of will with a 30 (thirty) day notice period starting from the date of receipt of the notice of termination.
The Agreement may not be terminated for non-performance of an insignificant part of a contractual obligation.
The term “non-performance of an insignificant part of a contractual obligation”, within the meaning of the previous paragraph, shall mean the non-performance of a remaining, minor part of a Party’s contractual obligation, provided that even without the performance of such part, the other Party derives from the Agreement the benefit that normally arises in such a situation, and provided that the non-performance of such part of the obligation does not ultimately defeat the overall purpose of the Agreement or the performance of its subject matter.
Either Party may terminate the Agreement unilaterally, without a notice period, by written declaration of will, provided that:

  1. a) insolvency, bankruptcy, liquidation, pre-bankruptcy settlement, or compulsory administration proceedings are initiated against the other Party.
  2. b) the other Party is prohibited from conducting business activities by a final decision.
  3. c) the other Party permanently ceases its business operations.

Monri shall be entitled to terminate the Agreement unilaterally, without a notice period and without any obligation to issue prior notice or grant a fulfilment period, in any of the following events:

  1. a) in the event that the User fails to settle any due obligation to Monri under the Agreement within no later than 30 (thirty) days from the invoice due date
  2. b) in the event that the User is in default of payment for at least two monthly instalments
  3. c) in the event of suspicion or evidence that the User or its employee is involved in abusive practices, or that the User is selling goods or services with illicit or inappropriate content, and/or
  4. d) in the event that the User infringes any of Monri’s intellectual property rights.

In any event of termination of the Agreement, all amounts due for services that have already been fully or partially provided and/or for all delivered goods shall become immediately due and payable, and Monri shall have the right to issue an invoice to the User accordingly. Termination of the Agreement (including cancellation) shall take effect for the future and shall not affect any rights and obligations regarding services already provided.
Termination of the Agreement shall have no effect on the obligations of the Parties regarding data confidentiality and the protection of intellectual property rights.
Upon termination of the Agreement for any reason by either Party, or upon the expiration of its term stated in the Agreement:

  1. a) all rights of the User to use the services shall cease immediately;
  2. b) the User shall return all documentation and data provided to Monri or destroy it.
    For the avoidance of any doubt, Monri shall not be obligated to provide and/or return any data/information to the User if the User fails to settle all fees under the Agreement and these Terms and Conditions.

 

FORCE MAJEURE
Neither Party shall be liable for any non-performance, delay, or improper performance of its obligations under the Agreement in the event of force majeure.
Force Majeure shall be considered to be any event that could not have been avoided, that could not have been foreseen upon the conclusion of the Agreement, or any other cause or event of such nature beyond the reasonable control of the Parties.
A Party whose performance of the Agreement is prevented by an event of Force Majeure shall notify the other Party of such event as soon as practicable, but no later than within 15 (fifteen) business days, to the extent possible. The notice shall include all necessary information.
For the duration of the Force Majeure event, all rights and obligations established in the Agreement shall be suspended.
If the performance of obligations under the Agreement is delayed for a period exceeding 3 (three) months due to a Force Majeure event, the Parties shall establish new conditions for the performance of the Agreement or the termination thereof.

 

DATA CONFIDENTIALITY
The data and information relating to the contractual relationship and the subject matter of the Agreement which the Parties were familiar with at the moment of conclusion of the Agreement or with which they will become familiar with in the future are strictly confidential. The Parties shall not disclose the Confidential Information to any third parties without obtaining a prior written consent from the other Party, unless the disclosure of such information is stipulated by regulations.  This obligation of confidentiality shall remain valid throughout the entire Agreement term and for a period of 3 (three) years following its termination.

“Confidential Information” shall mean any and all data and information disclosed by one Party to the other in written, oral, or any other form, including, but not limited to, all data pertaining to products, operations, procedures, plans or intentions, systems and processes, know-how, design rights, assessment procedures, market opportunities, as well as business and financial results, legal status, litigation, inspections conducted by competent authorities, etc.
The Parties may disclose Confidential Information if:

  1. a) the disclosure of such information is required by mandatory legal provisions, a court order, or a decision of a public authority, solely to the extent required and provided that the recipient of such information is informed of its confidential nature and the other Party is notified of the disclosure;
  2. b) the information was known to the Parties prior to the conclusion of the Agreement and/or is publicly known;
  3. c) a Party receives or has received such information from a third party authorised to disclose it;
  4. d) the disclosure of information is necessary to enable that Party to use the services of an auditor/legal advisor;
  5. e) the other Party has authorised the disclosing Party to do so in writing.
    Monri may, without the User’s consent, disclose Confidential Information to other entities in the Asseco/Payten Group.
    Any provided Confidential Information shall remain the property of the Party which provided it. At the disclosing Party’s request, in the event of termination of the Agreement, the information must be immediately returned or destroyed, including all copies, photographs, computer disks, or other forms of data storage, as well as duplicates in the possession of the receiving Party.
    The Parties shall have the right to issue public statements, press releases, or other public disclosures concerning the mere existence of the Agreement and its general subject matter.
    The Parties shall have the right to use the other Party’s trademark (name and logo) on their website, as well as in their marketing and sales materials, subject to appropriate reference to the business relationship between the Parties.
    Monri shall be entitled to draw up and use business case studies of the project. The use of a case study includes the publication of the case study in any form, subject to the prior written consent of the other Party regarding its content, which consent shall not be unreasonably withheld.
    The Parties shall have the right to request, at their sole discretion, the correction or deletion of errors or inaccuracies in the use of the trademark or business case study of the other Party as specified herein.

 

ASSIGNMENT OF RIGHTS

Neither Party may assign or transfer any of its rights, benefits, or obligations under the Agreement, in whole or in part, without the prior written consent of the other Party, except in cases where such transfer is executed to another entity within the Asseco/Payten Group.
Monri may use subcontractors to perform the Agreement.

 

PERSONAL DATA PROTECTION

The Parties shall conclude a separate agreement regarding the processing of personal data in accordance with the requirements of applicable regulations, and shall meet all regulatory requirements regarding the processing of personal data.
Monri shall not be responsible for the maintenance of equipment or systems owned by the User nor for the protection of data related thereto.

 

DISPUTE RESOLUTION
The Agreement and all disputes or claims arising out of or in connection with it, its subject matter, or its formation (including non-contractual disputes or claims) shall be governed by the law of the Republic of Croatia, excluding its conflict of law rules. The Convention on Contracts for the International Sale of Goods (Vienna, 1980) shall not apply.
Monri and the User shall resolve all disputes together and amicably. In the event that this is not possible, the court in Zagreb shall have jurisdiction.
Should any provision or part of a provision of these Terms and Conditions or the Agreement be or become invalid, illegal, or unenforceable, it shall be deemed amended to the minimum extent necessary to make it valid, legal, and enforceable. Should such amendment not be possible, the relevant provision or part of a provision shall be deemed deleted. No amendment to or deletion of a provision or part of a provision under this paragraph shall have any effect on the validity and enforceability of the remainder of these Terms and Conditions or the Agreement.

 

INDEPENDENCE OF THE PARTIES
The relationship between the Parties shall at all times be that of two independent entities, and the Agreement shall not be construed as establishing a partnership, agency relationship, or any other form of association that could impose liability on one Party due to the acts or omissions of the other Party.
Neither Party, nor its representatives or employees, shall be considered agents or representatives of the other Party, and neither Party shall have the authority, express or implied, to assume or incur any liability or obligations on behalf of the other Party, or to bind the other Party in any manner whatsoever.
Each Party shall be responsible for the management, direction, and control of its employees and other representatives, and such employees and representatives shall not be deemed employees of the other Party.

 

FINAL PROVISIONS
These Terms and Conditions shall enter into force on the day of their adoption. All amendments to the Terms and Conditions shall be made in writing.
Warnings, written declarations of will; that is, notices of cancellation and/or termination under these Terms and Conditions or the Agreement shall be delivered by registered mail with return receipt requested, to the address of the Party specified in the Agreement or to another known address notified in writing by the recipient Party to the other Party. Should an additional fulfilment period or a notice period apply, such periods shall commence on the date of receipt of the written declaration of will or notice delivered in the previously described manner. If a registered letter sent in accordance with the conditions of this paragraph is returned from the recipient’s address specified in the Agreement as undelivered for any reason, the date of receipt of the letter shall be deemed to be the date on which the letter was deposited with the postal service in accordance with the provisions of this paragraph.

Zagreb, published on 14/02/2023