Epix Service Terms

These Epix Service Terms (“Terms”) apply when you purchase a Subscription directly from PayBIX or through a PayBIX Reseller.

1. Definitions and Interpretation

1.1 The definitions and rules of interpretation in this clause apply in these Terms.

Affiliate: in relation to a Party, a company controlled by a Party or a company controlling a Party, or a company controlled by such a holding company where “control” shall mean having, directly and/or indirectly, a simple majority interest or more by capital and shareholding or voting rights.

Business Day: any day which is not a Saturday, Sunday, or public holiday in Belgium.

Business Hours: 9.00 am to 5.00 pm CET on a Business Day.

Confidential Information: any information disclosed by a Party to the other Party pursuant to these Terms which is either designated as proprietary and/or confidential, or by the nature of the circumstances surrounding disclosure, should reasonably be understood to be confidential, including (but not limited to), information on products, customer lists, price lists and financial information. For the avoidance of doubt, Confidential Information shall include the proprietary information of PayBIX relating to Epix and the Customer Data.

Confidential Information shall not include information that:

• is, or later becomes, generally known to the public (other than by breach of any agreement or undertaking of confidentiality);
• is lawfully obtained, prior to the date of disclosure or afterwards, free from confidentiality constraints from any third party who has lawfully obtained such information free from confidentiality constraints; or
• is independently developed by either Party without the use of Confidential Information.

Contact Person: a person designated by the Customer or by a Customer’s Affiliate to be responsible for the use of Epix and who is entitled by the Customer or by a Customer’s Affiliate to contact PayBIX in this regard. If the Customer has acquired the right to use Epix through a Reseller, the Contact Person shall be a person designated by the Reseller and Customer shall contact Reseller.

Customer: the customer that acquired the right to use Epix.

Customer Data: the data inserted in Epix by the Customer or the Customer Affiliates, their Users. If agreed, PayBIX or Reseller may insert data in Epix on the Customer's and the Customer Affiliates' behalf.

Documentation: the documentation made available to the Customer by PayBIX which sets out a description of Epix its specifications and functionalities, as well as the end-user instructions for Epix.

Epix: the SaaS Platform made available by PayBIX under these Terms as described in the Documentation, permitting Customer and Customer Affiliates to exchange Customer Data to and from the relevant ICPs.

Force Majeure: acts, events, omissions, or accidents beyond a Party’s reasonable control.

ICP: means the in-country payroll service provider that has signed a partnership agreement with PayBIX to deliver managed payroll services to the Customer and, if applicable, one or more Customer Affiliates.

Intellectual Property Rights: means, without being limited thereto, all present and future patents, design rights (registered and unregistered), trademarks (registered and unregistered), copyrights, database rights and all applications for any of such rights together with any similar rights of whatever nature existing throughout the world.

PayBIX: PayBIX NV, a company incorporated under Belgian law, with registered office at Oxdonkstraat 166B, 1880 Kapelle-op-den-Bos (Belgium), registered in the Crossroads Bank for Enterprises under the number 0782.511.866

Reseller: a reseller approved by PayBIX to resell Epix Subscriptions.

Subscription: the subscription for the use of Epix purchased by the Customer, for itself and on behalf of its Affiliates.

Upgrade (development): modification of the functionalities of Epix compared to its previous version.

Update (maintenance): detection and repair of errors and defects in Epix that appear during its correct utilisation by the Customer, Customer Affiliates, Reseller, PayBIX or the ICP in comparison with its normal functioning as described in the Documentation.

Users: the employees and free-lance consultants of the Customer and the Customer Affiliates who are using Epix, as well as the Reseller, if any.

2. Right to use Epix

2.1 PayBIX shall make available Epix and the Documentation to the Customer and the Customer Affiliates. If the Customer has obtained the right to use Epix through a Reseller, the Customer may allow the Reseller to use Epix on its behalf.

2.1 PayBIX shall use commercially reasonable endeavours to make Epix available in accordance with the SLA available at www.paybix.eu/SLA-addendum.

2.2 Updates and Upgrades shall be made available to the Customer and the Customer Affiliates without additional costs. The decision to perform an Upgrade falls within the sole discretion of PayBIX.

3. Support

3.1 PayBIX shall make assistance available to the Customer and the Customer Affiliates during Business Hours. If the Customer has acquired the right to use Epix through a Reseller, the assistance shall be provided by the Reseller.

3.2 The assistance provided by PayBIX shall cover all questions regarding the use of Epix as well as the content of the Documentation.

3.3 Assistance shall only be provided to the Customer’s Contact Persons.

3.4 Before requiring this assistance, the Contact Person shall have consulted the Documentation and shall provide to PayBIX (a) the name of the Customer and the relevant Customer Affiliates and the identity of the Contact Person and (b) a clear information that allows PayBIX to identify the problem as well as the circumstances of its occurrence.

4. Paybix’ obligations and warranties

4.1 Unless otherwise expressly stated in the Terms, the obligations of PayBIX are obligations of means. PayBIX will perform its obligations with reasonable skill and care.

4.2 PayBIX undertakes that Epix will function substantially in accordance with the Documentation.

4.3 If Epix does not conform to the warranty in clause 5.2, PayBIX will, at its choice and expense, either:

(a) use reasonable commercial endeavours to correct any such non-conformance promptly or

(b) reimburse the fees for the current contract year paid by the Customer for the defective software, in which case the Customer and the Customer Affiliates shall promptly, return and/or immediately cease to use Epix, and the Subscription will terminate at that moment.

This constitutes the Customer's and the Customer Affiliates’ sole and exclusive remedy for any breach of the warranty set out in clause 5.2.

This warranty is void if any unauthorized modifications are made to Epix and/or the Documentation by the Customer and the Customer Affiliates or on their behalf or if the Customer or any Customer Affiliate uses Epix in breach of the Terms or in a manner contrary to the Documentation.

4.4 Notwithstanding the foregoing, PayBIX:

(a) does not warrant that the use of Epix will be uninterrupted or error-free; PayBIX also disclaims any warranties of merchantability and fitness for a particular purpose.

(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the use of Epix and Documentation may be subject to limitations, delays, and other problems inherent in the use of such public communications facilities.

4.5 PayBIX warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Terms.

5. Customer’s obligations

5.1 The Customer and the Customer Affiliates undertake and warrant that they shall:

(a) comply with all applicable laws and regulations with respect to their activities under these Terms;

(b) carry out all the other Customer’s and the Customer Affiliates’ responsibilities set out in these Terms in a timely and efficient manner. In the event of any delays in the provision of such assistance as agreed by the Parties, PayBIX may adjust any agreed timetable or delivery schedule as reasonably necessary;

(c) ensure that their network and systems comply with the relevant specifications provided by PayBIX. Such specifications may evolve from time to time as a result of technological evolutions;

(d) be solely responsible for procuring and maintaining their network connections and telecommunications links from its systems to PayBIX’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to such network connections or telecommunications links or caused by the connection;

(e) ensure that the Users use Epix and the Documentation in accordance with the terms and conditions of these Terms and shall be responsible for any User’s breach of these Terms;

(f) each User shall keep, in a confidential manner, a secure log-in and password for his use of Epix and the Documentation;

(g) use all reasonable endeavours to prevent any unauthorised access to, or use of, Epix and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify PayBIX.

(h) take the necessary security measures to protect Epix and the data that it holds against unauthorized access and use.

(i) designate a person responsible for the use of Epix and the contact with PayBIX (“Contact Person”).

5.2 The Customer and the Customer Affiliates are solely liable for their use of Epix and/or the Documentation and for the results obtained from the use of Epix and/or the Documentation. The Customer and the Customer Affiliates must not misuse Epix and or the Documentation. In particular, the Customer and the Customer Affiliates shall not:

(a) access all or any part of Epix and the Documentation in order to build a product or service which competes with Epix and/or the Documentation; or

(b) use Epix and/or the Documentation to provide services to third parties (other than Customer Affiliates); or

(c) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make Epix and/or the Documentation available to any third party except the Users; or

(d) use Epix and/or the Documentation to violate the law in any way.

6. Cooperation

6.1 The Customer and the Customer Affiliates shall provide PayBIX with all necessary co-operation in relation to these Terms and all necessary access to such information as may be required by PayBIX in order to perform these Terms, including but not limited to Customer Data.

7. Customer Data

7.1 The Customer and the Customer Affiliates shall own all rights, title and interest relating to their Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of their Customer Data.

7.2 PayBIX shall implement reasonable back-up procedures in relation to the Customer Data. In the event of any loss or damage to Customer Data, the Customer's and the Customer Affiliates’ sole and exclusive remedy shall be for PayBIX to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by PayBIX. In this case, PayBIX shall communicate to the Customer and the Customer Affiliates the date and time of this latest back-up in order to allow the Customer and the Customer Affiliates to identify and, if possible, complete the missing Customer Data. PayBIX shall not be responsible for any loss, destruction, alteration, or disclosure of Customer Data caused by any third party.

7.3 PayBIX shall in no case be liable for any loss or damage to the Customer Data during transport, which is before it reaches Software Provider’s system or after it leaves it.

8. Personal Data

8.1 If PayBIX processes any personal data on behalf of the Customer, the processing shall be governed by the data processing addendum available at www.paybix.eu/DPA-addendum.

9. Termination

9.1 Without prejudice to any other rights or remedies to which the Parties may be entitled, either Party may terminate the Subscription without liability to the other Party if:

(a) the other Party commits a material breach of these Terms and fails to remedy that breach within 30 days of the written notice explaining the nature of the breach and asking it to correct or remedy the breach; or

(b) the other Party becomes insolvent or initiates negotiations about composition with its creditor or a petition in bankruptcy is filed.

9.2 On termination of the Subscription for any reason:

(a) all licences granted under these Terms shall immediately terminate;

(b) each Party shall, at the request of the other Party, return or delete and make no further use of any equipment, property, Documentation, and other items (and all copies of them) belonging to the other Party;

(c) PayBIX may destroy or otherwise dispose of any of the Customer Data in its possession unless PayBIX receives, no later than ten days before the effective date of the termination of these Terms, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. PayBIX shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by PayBIX in returning or disposing of Personal Data;

(d) the Terms shall co-terminate; and

(e) the accrued rights of the Parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

10. Indemnity

10.1 The Customer shall defend, indemnify, and hold harmless PayBIX against claims, actions, proceedings, losses, damages, expenses, and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's and the Customer Affiliates’ use of Epix and/or Documentation, provided that:

(a) the Customer is given prompt notice of any such claim;

(b) PayBIX provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and

(c) the Customer is given sole authority to defend or settle the claim.

10.2 PayBIX shall defend the Customer and the Customer Affiliates, their Reseller, their officers, directors, and employees against any claim that Epix or the Documentation infringe any intellectual property right, and shall indemnify the Customer and the Customer Affiliates, as well as the Reseller, for any amounts awarded against them in judgment or settlement of such claims, provided that:

(a) PayBIX is given prompt notice of any such claim;

(b) they provide reasonable co-operation to PayBIX in the defence and settlement of such claim, at PayBIX' expense; and

(c) PayBIX is given sole authority to defend or settle the claim.

10.3 In the defence or settlement of any claim, PayBIX may procure the right for the Customer and the Customer Affiliates, as well as the Reseller, to continue using Epix and/or the Documentation, replace or modify Epix and/or the Documentation so that they become non-infringing or, if such remedies are not reasonably available, terminate the Subscription subject to a refund of the amounts already paid in relation to the then running term.

10.4 In no event shall PayBIX, its employees, agents, and sub-contractors be liable to the Customer, the Customer Affiliates and Reseller to the extent that the alleged infringement is based on:

(a) a modification of Epix or the Documentation by anyone other than PayBIX; or

(b) the use of Epix or the Documentation in a manner contrary to the Documentation or the instructions given to the Customer or the Customer Affiliates by PayBIX.

10.5 The foregoing states the Customer's and the Customer Affiliates’ sole and exclusive rights and remedies, and PayBIX’ entire obligations and liability, for infringement of any intellectual property right.

11. Liability

11.1 To the largest extent permitted by applicable law, the total liability of PayBIX shall be limited, per contract year, to the lower of the following amounts: (i) the amount of the fees paid or payable by the Customer for the use of Epix for that contract year or (ii) 10.000 EUR.

11.2 To the largest extent permitted by applicable law, PayBIX shall not be liable for any special, indirect, or consequential loss such as, but not limited to, any loss of profits, loss of business, or loss or corruption of data or information.

11.3 Nothing in these Terms excludes the liability of PayBIX for gross negligence, fraud, wilful intent, death, or personal injury.

11.4 If the Customer wishes to use his right to indemnification, it must notify PayBIX hereof by registered letter within 30 days of the occurrence of the alleged breach.

12. Intellectual Property rights

12.1 The Customer and the Customer Affiliates acknowledge and agree that PayBIX and/or its licensors own all intellectual property rights in Epix and the Documentation.

12.2 PayBIX shall grant the Customer and the Customer Affiliates a personal, temporary, non-exclusive, non-transferable right to use Epix and the Documentation during the term of the Subscription solely for the Customer's and the Customer Affiliates’ internal business operations. Internal business operations mean operations that take place inside the Customer’s company or group of companies in which Customer is a part.

13. Confidentiality

13.1 Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under these Terms.

13.2 The Parties shall not use or divulge Confidential Information to any person without the express prior written consent of the other Party unless required by law or by a court order, provided that the receiving Party notifies the disclosing Party, to the extent it is permitted to do so, as soon as reasonably possible. The disclosure shall be limited to the largest extent possible.

13.3 Confidential Information shall be used only for the purpose(s) for which it was disclosed.

13.4 Each Party shall take all reasonably necessary measures, at least equivalent to the measures taken for the protection of its own Confidential Information, to prevent unauthorized use, disclosure, or publication of the Confidential Information.

13.5 The provisions of this Clause shall survive the termination or expiry of the Terms for a period of seven (7) years.

14. Force majeure

14.1 No Party shall be liable under these Terms if it is prevented from or delayed in performing its obligations under these Terms by an event of Force Majeure.

14.2 A Party suffering from an event of Force Majeure shall inform the other Party as soon as reasonably possible, describing the Force Majeure event and its consequences. Such Party shall use commercially reasonable efforts to minimize, to the extent possible, the effects of the Force Majeure event.

15. Miscellaneous

15.1 These Terms, and any documents referred to in it, constitute the whole agreement between the Parties in relation to the use of Epix and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

15.2 If any provision (or part of a provision) of these Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable, or illegal, the other provisions shall remain in force.

15.3 The Parties undertake to replace any provision (or part of a provision) that has been found invalid, unenforceable, or illegal with a valid, enforceable, and legal provision (or part of a provision) that has, to the extent possible, the same economic effect as the provision (or part of a provision) that has been found invalid, unenforceable, or illegal.

15.4 The non-assertion of a right or the non-application of a sanction by one of the Parties does not constitute a waiver of its rights.

15.5 Nothing in these Terms is intended to or shall operate to create a partnership between the Parties, or authorise either Party to act as agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

15.6 The Customer and the Customer Affiliates shall not, without the prior written consent of PayBIX, assign all or any of its rights or obligations under these Terms. PayBIX may at any time assign all or any of its rights or obligations under these Terms.

15.7 PayBIX is entitled to use the Customer’s name and logo as a reference.

16. Governing law and jurisdiction

16.1 These Terms are governed by, and construed in accordance with, the laws of Belgium.

16.2 All disputes relating to out of in connection with these Terms shall be settled amicably by the Parties. If the Parties fail to reach an understanding, the dispute shall be submitted to the exclusive jurisdiction of the courts of Antwerp, Belgium.