THIS AGREEMENT is made BETWEEN;
(1) OPT1MIZE TECHNOLOGIES LIMITED, a company incorporated in The Republic of Ireland with registered number 604002 whose registered office is at 17 Clanwilliam Square, Grand Canal Quay, Dublin 2 D02 DH98, Republic of Ireland ("OPT1MIZE TECHNOLOGIES LIMITED");
and(2) The “Customer”
WHEREAS:
(A) OPT1MIZE TECHNOLOGIES LIMITED is the owner of certain Software, Telecom and Network Equipment collectively referred to as “COMMSETTLE”.IT IS HEREBY AGREED THAT:
This Agreement sets out the terms and conditions on which OPT1MIZE TECHNOLOGIES LIMITED agrees to provide the Services to the Customer.
In this Agreement unless the context otherwise requires;
“Applicable Law and Regulation” means all legal and regulatory requirements, policies, guidance and industry codes (whether binding or non-binding) which are applicable to any obligations of the relevant party under this Agreement and/or to which the relevant party is subject;
“Commencement Date” means the date of execution of this Agreement;
“Concurrent Session” means an active call connected through the COMMSETTLE Platform.
"Customer Material" means any material owned by the Customer prior to the date of this Agreement or developed by or on behalf of the Customer independently of this Agreement;
"OPT1MIZE TECHNOLOGIES LIMITED Marks" means the trademarks, service marks, logos and trading names used by OPT1MIZE TECHNOLOGIES LIMITED and its Group members from time to time;
"OPT1MIZE TECHNOLOGIES LIMITED Material" means any material owned by OPT1MIZE TECHNOLOGIES LIMITED prior to the date of this Agreement or developed by or on behalf of OPT1MIZE TECHNOLOGIES LIMITED independently of this Agreement;
"OPT1MIZE TECHNOLOGIES LIMITED Software" means software which forms part of the OPT1MIZE TECHNOLOGIES LIMITED Technology;
"OPT1MIZE TECHNOLOGIES LIMITED Technology" means any software or technology used by OPT1MIZE TECHNOLOGIES LIMITED to provide the Services;
“Fees” means the fee payable by the Customer to OPT1MIZE TECHNOLOGIES LIMITED in respect of the performance of the Services, as detailed at Schedule 3;
"Force Majeure Event" means any matter outside the reasonable control of the affected party including, without limitation, fire, flood, earthquake, elements of nature, acts of God, acts of war, terrorism, riots, civil disorders, rebellions and revolutions, strikes or lock-outs (except strikes or lock-outs by the workforce of the affecting party), failures of power or other utilities, acts or omissions of government, highways authorities or other competent authority or regulatory body;
“Ready for Service Date” means the date the COMMSETTLE Service is available to run traffic for the benefit of the Customer, and the date that OPT1MIZE TECHNOLOGIES LIMITED will issue the Ready for Service Certificate to the Customer;
“Group” means, in relation to the Customer or OPT1MIZE TECHNOLOGIES LIMITED as the context may require, the Customer or OPT1MIZE TECHNOLOGIES LIMITED and any subsidiary or holding company or any company owned by the same holding company as owns OPT1MIZE TECHNOLOGIES LIMITED or Customer (and subsidiary and holding company shall have the same meanings given to them by the Companies Acts as amended);
“Initial Period” means the period from the Commencement Date and continuing subject to Clause 2.1 for a period of 1 month;
“Insolvency Event” means ceasing to trade, having a receiver, administrative receiver, provisional liquidator, liquidator, manager, examiner, interim examiner, receive and manager, administrator or manager appointed over the whole or any material part of its assets or undertaking, passes a resolution for the winding up (otherwise than in the course of a restructuring or reorganization) or such company has become insolvent or has gone into liquidation, examiner ship, receivership, bankruptcy or similar process in any jurisdiction compounded with its creditors generally or is unable to meet its debts as they fall due within the meaning of Section 570 of the Companies Acts 2014 or makes any arrangement with or for the benefit of its creditors;
“Intellectual Property” means trademarks, service marks, registered designs, patents, applications for any of the foregoing, trade or business names, copyrights, rights in designs and inventions, rights under licenses, consents, orders, statute or otherwise howsoever in relation to any such rights and rights of the same or similar nature in any part of the world;
“Minimum Monthly Minutes” means the minimum billable Minutes per calendar month;
“Minute Switching Fee” means a fee payable by the Customer to OPT1MIZE TECHNOLOGIES LIMITED for every minute the Customer processes through the COMMSETTLE Service.
“Settlement Fee” means a fee payable by the Customer to OPT1MIZE TECHNOLOGIES LIMITED for settlement of traffic exchanged between the Customer and their trading partner.
“MEDII8 PAYMENT ACCOUNT” means the Payment Account provided by OPT1MIZE TECHNOLOGIES LIMITED with COMMSETTLE.
“On-Net COMMSETTLE Trading” means where the Customer is sending or receiving traffic to or from a carrier who is also using COMMSETTLE, where the value of the traffic exchanged is settled via MEDII8 Payment Accounts.
“Off-Net COMMSETTLE Trading” means where the Customer is sending or receiving traffic to or from a carrier who is NOT using COMMSETTLE, where the value of the traffic exchanged is NOT settled via MEDII8 Payment Accounts.
“COMMSETTLE Platform” means the equipment and software owned and managed by OPT1MIZE TECHNOLOGIES LIMITED that is located in OPT1MIZE TECHNOLOGIES LIMITED Datacenter to enable performance of the COMMSETTLE Services;
“COMMSETTLE Services” means the services to be provided to the Customer as set out in Schedule 1; “Products” means the Services;
“Services” means the COMMSETTLE Services;
“Support Services” means the on-going maintenance and support services as defined in Schedule 2 of this Agreement; “Working Days” means Monday to Friday inclusive, excluding Public and Bank Holidays in the Republic of Ireland.
“Beta Version” means the equipment and software owned and managed by OPT1MIZE TECHNOLOGIES LIMITED that is still undergoing the addition and testing of further products and features, preceding the final version that will be officially released at a later date.
(a) references to clauses, schedules and appendices are to be construed as references to clauses and/or schedules and appendices to this Agreement and references to this Agreement includes its schedules and appendices;
(b) words importing the singular shall include the plural and vice versa, words importing a gender shall include both and references to persons shall include bodies corporate and unincorporated; and
(c) references to statutory provisions shall be construed as references to those provisions as replaced, amended or re-enacted from time to time.
(a) words in the singular include the plural and vice versa and words in one gender include any other gender;
(b) a reference to a statute or statutory provision includes:
(i) any subordinate legislation made under it;
(ii) any repealed statute or statutory provision which it re-enacts (with or without modification); and
(iii) any statute or statutory provision which modifies, consolidates, re-enacts or supersedes it;
(c) a reference to any regulations, guidelines or the like issued by any regulatory body having jurisdiction or other influence over the parties shall be deemed to include any renewal, replacement or amendment thereof;
(d) a reference to:
(i) any party includes its successors in title and permitted assigns;
(ii) a "person" includes any individual, firm, body corporate, association or partnership, government or state (whether or not having a separate legal personality);
(iii) a Clause or Schedule is to a clause of or a schedule to this Agreement;
(iv) a “party” means OPT1MIZE TECHNOLOGIES LIMITED or the Customer and the “parties” means (unless expressed to the contrary) OPT1MIZE TECHNOLOGIES LIMITED and the Customer; and
(v) "other", "includes", "including", "for example" and "in particular" do not limit the generality of any preceding words and any words which follow them shall not be construed as being limited in scope to the same class as the preceding words where a wider construction is possible;
(vi) the table of contents and the headings of Clauses are for convenience only and shall not affect the interpretation of this Agreement;
(vii) any undertaking under this Agreement not to do any act or thing shall be deemed to include an undertaking not to permit or suffer the doing of that act or thing;
(viii) in the event and to the extent only of any conflict between the Clauses in the main body of this Agreement and the Schedules, the Clauses in the main body of this Agreement shall take precedence.
2.1 This Agreement shall come into force on the Commencement Date and continue in force for the Initial Period and, shall continue thereafter subject to either Party terminating this Agreement by serving notice in writing, unless this Agreement is terminated earlier pursuant to Clause 14.
3.1 From the Commencement Date, and prior to the Ready for Service Date, OPT1MIZE TECHNOLOGIES LIMITED may carry out such testing as it deems reasonably necessary to test and setup the Services for the Customer.
3.2 From the Commencement Date, and prior to the Ready for Service Date, the Customer shall without delay, provide to OPT1MIZE TECHNOLOGIES LIMITED all information and all necessary assistance as OPT1MIZE TECHNOLOGIES LIMITED shall reasonably require to enable OPT1MIZE TECHNOLOGIES LIMITED to undergo such tests;
3.3 From the Commencement Date, and prior to the Ready for Service Date, the Customer shall without delay, provide to OPT1MIZE TECHNOLOGIES LIMITED an IP address of a server where the Customer can receive ALL the Call Data Records in relation to any traffic processed by software provided by OPT1MIZE TECHNOLOGIES LIMITED by means of Secure File Transfer Protocol;
4.1 With effect from the Ready for Service Date OPT1MIZE TECHNOLOGIES LIMITED shall provide the Services.
4.2 OPT1MIZE TECHNOLOGIES LIMITED may perform its obligations under this Agreement by employing sub-contractors and agents and performance of any obligation by any such person will constitute performance by OPT1MIZE TECHNOLOGIES LIMITED.
4.3 OPT1MIZE TECHNOLOGIES LIMITED's obligations shall be limited to the provision of the Services and OPT1MIZE TECHNOLOGIES LIMITED shall have no obligation to provide any other services, unless agreed from time to time in writing by both parties.
4.4 In performing the Services and all of its obligations under this Agreement, OPT1MIZE TECHNOLOGIES LIMITED shall use reasonable efforts to:
4.4.1 minimize material disruptions, interruptions or degradation to the systems or business of Customer;
4.4.2 utilize an appropriate and adequate number of suitably skilled, experienced, trained and qualified personnel;
4.4.3 work in good faith with Customer’s employees.
4.5 Customer agrees that OPT1MIZE TECHNOLOGIES LIMITED may suspend Services as defined in this agreement if OPT1MIZE TECHNOLOGIES LIMITED considers it necessary to do so, by giving reasonable notice where possible, including but not limited to the below cases:
4.5.1 to perform repairs, modifications, enhancements, maintenance and upgrades;
4.6 If OPT1MIZE TECHNOLOGIES LIMITED suspends or modifies a Service, OPT1MIZE TECHNOLOGIES LIMITED will give appropriate notification (where possible) and will use reasonable efforts to minimize the extent of any suspension.
4.7 OPT1MIZE TECHNOLOGIES LIMITED Agrees to provide capacity on the COMMSETTLE Service up to the agreed forecasted amount plus 25%. If the Customer expects to exceed this capacity, then OPT1MIZE TECHNOLOGIES LIMITED requires 20 working days in order to be able to enable the additional capacity. Until such time that notice is provided and expired, OPT1MIZE TECHNOLOGIES LIMITED only warrants capacity up to the pre-notice agreed levels.
4.8 OPT1MIZE TECHNOLOGIES LIMITED agrees to provide a limited number of Customer connections to the Service to manage the Service as defined with the Support Appendix. Any additional connections can be arranged at for a minimum period of 1 month for an additional monthly charge.
5.1 With effect from the Commencement Date until termination of this Agreement, the Customer shall:
5.1.1 provide to OPT1MIZE TECHNOLOGIES LIMITED all information which OPT1MIZE TECHNOLOGIES LIMITED requires from time to time to enable OPT1MIZE TECHNOLOGIES LIMITED to provide the Services;
5.1.2 co-operate with OPT1MIZE TECHNOLOGIES LIMITED in the conduct of any tests that may be required following variation of the Services and any agreement between the Parties to provide additional services;
5.1.3 ensure that all information provided by or on behalf of the Customer shall be in a form suitable for use as specified by OPT1MIZE TECHNOLOGIES LIMITED from time to time and in a good and suitable condition for processing;
5.1.4 allow OPT1MIZE TECHNOLOGIES LIMITED to use the name and logo of the Customer in OPT1MIZE TECHNOLOGIES LIMITED's promotional and marketing materials relating to the provision of the Services;
5.1.5 provide OPT1MIZE TECHNOLOGIES LIMITED with a customer reference or testimonial to be used in OPT1MIZE TECHNOLOGIES LIMITED's promotional and marketing materials relating to the provision of the Services;
5.1.6 comply with all Applicable Law and Regulation and codes of practice (either in operation at the Commencement Date or brought into force during the term of this Agreement) relating to the activation and operation of Products.
5.2 It shall be the responsibility of the Customer to use the Services in compliance with all Applicable Law and Regulation. For the avoidance of doubt, the Customer understands that it may need to obtain certain licenses and permits as imposed by the regulatory bodies within Customer’s operational jurisdiction. By entering into this Agreement, Customer agrees to obtain and maintain all necessary permits, licenses, and regulatory consents and granted rights to provide telecommunication services to its customers and to receive the telecommunication services; pursuant to any applicable law or regulation within Customers’ operating jurisdiction, hereinafter referred to as “Regulatory Compliance”.
Regulatory Compliance shall include but not be limited to; filing and reporting telecommunication services activity details, paying fees imposed on Customer due to Regulatory Compliance and conforming by rules and procedures imposed on the Customer. Customer agrees and acknowledges that, failure to achieve Regulatory Compliance may result in fines imposed on the Customer by regulatory bodies in its Jurisdiction. Customer agrees that OPT1MIZE TECHNOLOGIES LIMITED shall have no liability to the Customer for any loss or damages due to the Customer’s failure to achieve Regulatory Compliance.
5.3 Customer shall abide by all applicable laws, rules, and regulations relating to the use of Services and shall not (nor allow any person to;
5.3.1 use the Services in any manner which is illegal, fraudulent or deceptive, harassing, threatening, harmful, libelous, defamatory, abusive, slanderous, hateful, sexually, racially or ethnically objectionable, vulgar, pornographic, obscene, or otherwise objectionable or unlawful;
5.3.2 attempt to gain unauthorized access to OPT1MIZE TECHNOLOGIES LIMITED's network or computer systems;
5.3.3 interfere with another's use of any OPT1MIZE TECHNOLOGIES LIMITED’s services.
5.4 The Customer agrees that it is responsible for determining its own capacity requirements for the Services to be purchased from OPT1MIZE TECHNOLOGIES LIMITED, and OPT1MIZE TECHNOLOGIES LIMITED shall have no liability to the Customer for any loss or damages due to insufficient capacity being ordered by Customer.
5.5 The Customer agrees that it is responsible for providing origination and termination carriers. The Customer shall ensure that such carriers meet the requirements of the Customers service offering (eg quality of service and/or guaranteed DTMF), and OPT1MIZE TECHNOLOGIES LIMITED shall have no liability to the Customer for any loss or damages due to insufficient carrier capacity being provided by the Customer.
5.6 The Customer agrees that it is responsible for ensuring that it handles all credit card transactions (if applicable) within the payment card industry guidelines. The Customer will also enter into its own merchant agreements with the payment gateway providers that it wishes to connect with. OPT1MIZE TECHNOLOGIES LIMITED shall have no liability to the Customer for any loss or damages due to the Customer not adhering to this clause.
5.7 The Customer agrees that it is responsible for providing 1st line to support to both its customers and carriers and OPT1MIZE TECHNOLOGIES LIMITED shall only be required to deal with issues once the Customer has undertaken such analysis. OPT1MIZE TECHNOLOGIES LIMITED shall have no liability to the Customer for any loss or damages due to the Customer not having undertaken such action.
5.8 The Customer agrees that it is responsible for its own Call Data Records that will be sent to the Customers own server via Secure File Transfer Protocol and that Call Data Record Management are out of the scope of service that OPT1MIZE TECHNOLOGIES LIMITED provides the Customer via COMMSETTLE.
5.9 The Customer agrees that OPT1MIZE TECHNOLOGIES LIMITED provides the COMMSETTLE service as a Beta Version and over time, at the discretion of OPT1MIZE TECHNOLOGIES LIMITED, new products and features will be added to the CommSettle service.
6.1 As consideration for receipt of the Services, the Customer shall pay to OPT1MIZE TECHNOLOGIES LIMITED the Fees in accordance with this clause 6 and detailed within Schedule 3.
6.2 In order for the Customer to pay OPT1MIZE TECHNOLOGIES LIMITED the Fees, OPT1MIZE TECHNOLOGIES LIMITED shall debit the Medii8 payment account in the relevant currency based upon the minutes processed together with any applicable VAT and the traffic values settled between trading partners.
6.3 Where applicable, all Fees and/or charges for Services which are collected from the Customer by OPT1MIZE TECHNOLOGIES LIMITED pursuant to this Agreement together with any applicable VAT shall be invoiced to the Customer periodically but not more frequently than monthly.
6.4 The Customer understands and agrees that when the Customer is involved in “OFF-NET COMMSETTLE TRADING”, the Customer must have funds deposited on the “MEDII8 PAYMENT ACCOUNT” in order to pay to OPT1MIZE TECHNOLOGIES LIMITED the MINUTE SWITCHING FEE in accordance with this clause 6, and detailed within Schedule 3.
6.5 The Customer understands and agrees that when the Customer is involved in “ON-NET COMMSETTLE TRADING”, OPT1MIZE TECHNOLOGIES LIMITED shall debit the “MEDII8 PAYMENT ACCOUNT” the MINUTE SWITCHING FEE and SETTLEMENT FEE in accordance with this clause 6, and detailed within Schedule 3.
6.6 The Customer understands and agrees that OPT1MIZE TECHNOLOGIES LIMITED will require a certain level of Minimum Monthly Minutes over the Term of this Agreement in respect of Services. OPT1MIZE TECHNOLOGIES LIMITED may invoice the Customer for all amounts owing in respect of the Minimum Monthly Minutes for Services regardless of whether such minutes are actually used by the Customer. Both parties agree that the Minimum Monthly Minutes charge may increase from month to month.
6.7 The Customer may be required by OPT1MIZE TECHNOLOGIES LIMITED to pay a non-refundable security deposit, which will be held for the duration of the Agreement. The security deposit will be used by OPT1MIZE TECHNOLOGIES LIMITED to cover any payment obligations on the termination of this Agreement. The Customer agrees to pay any Fees that are due on termination above the value of the security deposit. OPT1MIZE TECHNOLOGIES LIMITED reserves the right to alter the value of the security deposit from time to time.
7.1 OPT1MIZE TECHNOLOGIES LIMITED shall use reasonable endeavors to provide the Services (and such additional services as may be agreed) on a continuous basis. However, no warranty is given by OPT1MIZE TECHNOLOGIES LIMITED that the Services (and such additional services as may be agreed) will be provided on a continuous basis and the Customer acknowledges that interruptions may occur, whether by reason of breakdown or for any other reason, in the provision of the Services (and such additional services as may be agreed) and further acknowledges and it is hereby agreed that OPT1MIZE TECHNOLOGIES LIMITED shall have no liability in respect of any such breakdown and ALWAYS PROVIDED THAT OPT1MIZE TECHNOLOGIES LIMITED shall have no liability where any such failure to comply is a result of a Force Majeure event as set out in the relevant clauses below. If any interruption does occur OPT1MIZE TECHNOLOGIES LIMITED shall use its reasonable endeavors to restore the provision of the Services (and such additional services as may be agreed) as soon as reasonably practicable.
7.2 In no circumstances shall either Party be liable to the other, whether in contract tort (including without limitation negligence) or breach of statutory duty or otherwise arising by reason or in connection with this Agreement for loss (whether direct or indirect) of profits, business, goodwill, anticipated savings or any consequential or indirect loss whatsoever.
7.3 The liability of OPT1MIZE TECHNOLOGIES LIMITED, whether in contract, tort (including without limitation negligence) or breach of statutory duty or otherwise arising by reason of or in connection with this Agreement or howsoever otherwise caused shall be limited to the amount of Fees charged to the Customer in the 1 month prior to the claim. OPT1MIZE TECHNOLOGIES LIMITED shall have no liability to the Customer to the extent that such aggregate exceeds the aforementioned limit.
7.4 The limitation in Clause 7.3 will not apply (and no limitation of liability will apply) with respect to:
7.4.1 Liability for death or personal injury caused by negligence, fraudulent misrepresentation or any other liability which cannot be excluded or limited by statute or law; or
7.4.2 fraud of OPT1MIZE TECHNOLOGIES LIMITED.
7.5 The Parties further acknowledge that OPT1MIZE TECHNOLOGIES LIMITED's liability is limited to the provision of the Services and as such OPT1MIZE TECHNOLOGIES LIMITED shall have no obligation, responsibility or liability in relation to the activation, operation or management of Products and the Customer agrees to indemnify and hold OPT1MIZE TECHNOLOGIES LIMITED harmless for all costs, claims, losses (either direct or indirect) arising out of:
7.5.1 any act or omission of the Customer; and
7.5.2 any use of the Services by a Customer.
8.1 Each of the Parties shall, and shall use reasonable endeavors to procure that their officers, employees, agents and other representatives shall safeguard, treat as confidential, and not use for purposes other than the performance of its obligations under this Agreement, all information, documents or materials in whatever form which it acquires during the term of this Agreement and which concerns the other Party except:
8.1.1 as required to enable the Customer or OPT1MIZE TECHNOLOGIES LIMITED to perform their respective obligations under this Agreement;
8.1.2 as required:
8.1.2.1 by law;
8.1.2.2 by any relevant regulatory bodies acting properly in accordance with their powers and having jurisdiction over OPT1MIZE TECHNOLOGIES LIMITED or the Customer;
8.1.2.3 by the duly appointed auditor of OPT1MIZE TECHNOLOGIES LIMITED or the Customer acting properly and in accordance with their powers; or
8.1.3 with the prior written consent of the other Party.
8.2 The obligations of confidentiality in this Agreement shall survive the termination of this Agreement and continue unless and until any of the relevant information enters the public domain through no fault of the relevant Party, its officers, employees, agents or other representatives.
9.1 OPT1MIZE TECHNOLOGIES LIMITED acknowledges and agrees that the Customer Information is and shall remain the absolute property of the Customer and OPT1MIZE TECHNOLOGIES LIMITED shall never at any time have any title to such data.
9.2 Each party shall at all times comply with the provisions of the Data Protection Act 1988 and 2003 (as amended) (“DPA”) in its Processing of Personal Data of Customers.
9.3 The Customer shall be Data Controller in respect of Customer Information and OPT1MIZE TECHNOLOGIES LIMITED shall only Process Personal Data of the Customer (which is Customer Information) on behalf of the Customer in accordance with, and for the purposes set out in this Agreement and instructions received from the Customer from time to time. Where such instructions are inconsistent with OPT1MIZE TECHNOLOGIES LIMITED's usual process or the data processing provisions (if any), the Customer shall pay for OPT1MIZE TECHNOLOGIES LIMITED’s costs in relation to performing such instructions. OPT1MIZE TECHNOLOGIES LIMITED shall process all Personal Data fairly and lawfully, as required by the DPA and shall in particular, if processing Personal Data on behalf of the Customer, comply with the seventh principle of the DPA. The Customer shall ensure that Customer Information is accurate and up to date when disclosed to OPT1MIZE TECHNOLOGIES LIMITED. The Customer shall also ensure that the Customer has obtained from its customers all necessary consents under the DPA to both the supply of the data to OPT1MIZE TECHNOLOGIES LIMITED, and the Processing of such data by OPT1MIZE TECHNOLOGIES LIMITED, for the purposes of performance of this Agreement.
9.4 OPT1MIZE TECHNOLOGIES LIMITED warrants when acting as Data Processor to ensure that it Processes the Personal Data of the Customers (which is Customer Information) solely in accordance with the terms of this Agreement and that it shall maintain appropriate technical and organisational measures to protect against unauthorised or unlawful Processing of such Personal Data and against accidental loss or destruction of, or damage to, such Personal Data. The Customer warrants that the Processing of the Personal Data of the Customers by OPT1MIZE TECHNOLOGIES LIMITED (and its contractors) in accordance with this Agreement will not in any way cause OPT1MIZE TECHNOLOGIES LIMITED (or its contractors) to breach its obligations under the DPA.
9.5 OPT1MIZE TECHNOLOGIES LIMITED may transfer (or permit its contractors to transfer) the Personal Data of Customers outside the European Economic Area and the Customer shall ensure that it has obtained all relevant customer consents to enable such transfer.
9.6 For the avoidance of doubt, OPT1MIZE TECHNOLOGIES LIMITED may subcontract any of its obligations under this Agreement regarding the Processing of Personal Data of Customers.
10.1 The Customer agrees that it has reviewed, understood and agreed the services comprised in the Services as confirmed in Schedule 1 and the Support Services as confirmed in Schedule 2 and OPT1MIZE TECHNOLOGIES LIMITED shall not be obliged to provide any services which are not expressly included in the Services unless otherwise agreed in writing, and no such change shall take effect unless it is set out in a change memorandum (specifically referring to this Agreement) and such memorandum is signed by authorized signatories of both parties.
11.1 All Intellectual Property Rights in the OPT1MIZE TECHNOLOGIES LIMITED Marks and OPT1MIZE TECHNOLOGIES LIMITED Technology shall remain the absolutely property of OPT1MIZE TECHNOLOGIES LIMITED and/or its third-party licensors. Nothing in this Agreement shall permit the Customer to use (and the Customer shall not use) OPT1MIZE TECHNOLOGIES LIMITED's Marks without OPT1MIZE TECHNOLOGIES LIMITED's prior written consent. All Intellectual Property Rights in the Customer Material shall remain the absolute property of the Customer and/or its third-party licensors. All Intellectual Property Rights in the OPT1MIZE TECHNOLOGIES LIMITED Material shall remain the absolute property of OPT1MIZE TECHNOLOGIES LIMITED and/or its third-party licensors.
11.2 The Customer grants OPT1MIZE TECHNOLOGIES LIMITED a non-exclusive, non-transferable license (with the right to grant sub-licenses) to use such of the Customer Material as is provided to OPT1MIZE TECHNOLOGIES LIMITED pursuant to this Agreement for the sole purpose of enabling OPT1MIZE TECHNOLOGIES LIMITED (and its contractors) to perform the Services and otherwise comply with its obligations under this Agreement.
11.3 OPT1MIZE TECHNOLOGIES LIMITED hereby grants the Customer, subject to the acceptance of and compliance with this Agreement and with the payment requirements for the Services, a limited non-exclusive, non-transferable license (without the right to sub-license) to use during the Term such parts of the OPT1MIZE TECHNOLOGIES LIMITED Material, OPT1MIZE TECHNOLOGIES LIMITED Technology as are provided by OPT1MIZE TECHNOLOGIES LIMITED to the Customer as part of the Services for the exclusive purposes of receiving the Services. The Customer agrees not to, nor allow any third party to, copy, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble or reverse engineer the Services for any purpose whatsoever. The Customer may not allow any unauthorized third party to access the Services for any purpose whatsoever. All rights not expressly granted under this Agreement are retained by OPT1MIZE TECHNOLOGIES LIMITED.
11.4.2 The Customer's use of any OPT1MIZE TECHNOLOGIES LIMITED Material and/or OPT1MIZE TECHNOLOGIES LIMITED Technology which is owned by a third party shall be subject to any additional terms and conditions notified to the Customer by OPT1MIZE TECHNOLOGIES LIMITED from time to time or to the terms of an end user license agreement (as notified by OPT1MIZE TECHNOLOGIES LIMITED from time to time) to be entered into between the Customer and the relevant third party (which the Customer agrees to enter into on request of OPT1MIZE TECHNOLOGIES LIMITED).
11.5 The Customer shall not (and shall ensure that its employees, subcontractors, agents and consultants do not) modify, obstruct or alter in any way any of the OPT1MIZE TECHNOLOGIES LIMITED Materials, OPT1MIZE TECHNOLOGIES LIMITED Marks or act in any way or make any omission which would bring OPT1MIZE TECHNOLOGIES LIMITED or their respective business into disrepute in any manner or otherwise damage the brand or reputation of OPT1MIZE TECHNOLOGIES LIMITED.
11.6 The Customer shall not register or use any mark that is similar to the OPT1MIZE TECHNOLOGIES LIMITED Marks.
11.7 If the Customer or any Customer uses, registers or attempts to register a mark that, in the reasonable opinion of OPT1MIZE TECHNOLOGIES LIMITED, is substantially similar to any of the OPT1MIZE TECHNOLOGIES LIMITED Marks, OPT1MIZE TECHNOLOGIES LIMITED shall, without prejudice to its other rights under this Agreement or otherwise, be entitled to terminate this Agreement immediately on written notice.
11.8 Nothing in this Agreement shall operate so as to assign or grant any rights in either party's Intellectual Property Rights other than as expressly set out in this Agreement.
12.1 OPT1MIZE TECHNOLOGIES LIMITED shall indemnify the Customer against all claims, demands, liability, costs and expenses (including reasonable legal fees) arising from any third party alleging that the Customer's use of the Services strictly in accordance with this Agreement infringes any Intellectual Property Rights of any third party (save as described in Clauses 12.2 or 12.3).
12.2 The indemnity set out in Clause 12.1 shall not apply to any claim to the extent that it is based on or arises in connection with:
12.2.1 any use of the Services not expressly permitted under this Agreement;
12.2.2 any developments which were developed to meet the Customer's instructions;
12.2.3 any OPT1MIZE TECHNOLOGIES LIMITED Technology which is owned by third parties in respect of which OPT1MIZE TECHNOLOGIES LIMITED shall use reasonable endeavors to enforce for the benefit of the Customer any warranties and/or indemnities provided by the relevant third party licensor in relation to such material.
12.3 the Customer shall indemnify OPT1MIZE TECHNOLOGIES LIMITED against all claims, demands, liability, costs and expenses (including reasonable legal fees) arising from any third-party claim alleging that OPT1MIZE TECHNOLOGIES LIMITED's (or its contractor's) use of material provided by the Customer under this Agreement infringes any Intellectual Property Rights of any third party.
12.4 The indemnities set out in Clauses 12.1 and 12.3 are conditional on the following:
12.4.1 the indemnified party giving the indemnifying party prompt written notice of the claim;
12.4.2 the indemnified party providing the indemnifying party and its professional advisers reasonable access to (and copies of) any relevant documents and personnel as required for the purposes of investigating the matter and enabling the indemnifying party to defend and/or settle such claim;
12.4.3 the indemnified party allowing the indemnifying party (at the indemnifying party's request) to take over control of the defense and/or settlement of such claim;
12.4.4 the indemnified party giving such information and assistance (at the indemnifying party's expense) as the indemnifying party may reasonably request to defend and/or settle such claim;
12.4.5 the indemnified party not making any offer, promise, compromise, settlement or communication adverse to the defense of the claim with the third-party claimant without the prior written consent of the indemnifying party.
12.5.1 procure a right for the Customer to use the offending material;
12.5.2 replace the offending material with a suitable alternative; or
12.5.3 withdraw the relevant element of the Services with an appropriate reduction to the Charges.
13.1.1 it has all requisite corporate power and authority to enter into this Agreement and to carry out its obligations herein; and
13.1.2 it is entitled to enter into and perform its rights and obligations under this Agreement without breaching any duty owed to any third party.
13.2 the Customer warrants to OPT1MIZE TECHNOLOGIES LIMITED now and hereafter that the Customer:
13.2.1 owns, or has the right to use and shall at all relevant times own, or have the right to use, all Intellectual Property Rights in the material provided by the Customer to OPT1MIZE TECHNOLOGIES LIMITED under this Agreement; and
13.2.2 shall not infringe or cause OPT1MIZE TECHNOLOGIES LIMITED to infringe any person's Intellectual Property Rights in using or receiving material provided by the Customer under this Agreement.
14.1 Each party shall have the right to terminate this Agreement with immediate effect by written notice on or at any time after the happening of any of the following events:
14.1.1 the other party commits a material breach of this Agreement and has not remedied such breach within 30 days after a written notice specifying the breach and requiring its remedy;
14.1.2 the passing by the other party of a resolution for its winding-up or the making by a court of competent jurisdiction of an order for the winding-up or the dissolution of the other party (except for the purposes of a solvent amalgamation or reconstruction);
14.1.3 the making of an administration order in relation to the other party or the appointment of a receiver, liquidator, provisional liquidator, examiner, interim examiner or an administrative receiver over, or the taking possession or sale by a secured party of, any of its assets; or
14.1.4 the other party making an arrangement or composition with its creditors generally or making an application to a court of competent jurisdiction for protection from its creditors generally.
14.2 OPT1MIZE TECHNOLOGIES LIMITED shall have the right to suspend COMMSETTLE services and/or terminate this Agreement with immediate effect by written notice, which notice may expire on or at any time after the happening of any of the following events:
14.2.1 the Customer has failed to pay any Fees or other sums since the Commencement Date;
14.2.2 the Customer ceasing to carry on a material part of its business at any time or disposes of all its assets or a substantial part of its assets which are used in the promotion or provision of the Services;
14.2.3 a change of control of the Customer. In this Clause "control" shall have the meaning given by Section 11 or Section 432, Taxes Consolidation Act 1997 so that there shall be a change of control whenever there would be a change of control as defined in either Section 11 or Section 432;
14.2.4 OPT1MIZE TECHNOLOGIES LIMITED's (or its contractor's) or the Customer’s ability to provide the Services is prevented to a material degree for more than 10 days by any regulation, law, decree or any act of state or other governmental action or OPT1MIZE TECHNOLOGIES LIMITED (or one of its contractors) is refused or has revoked any official or regulatory license, authorization or permission necessary for the provision of any Service.
14.3 Without prejudice to OPT1MIZE TECHNOLOGIES LIMITED's rights to terminate this Agreement under this Clause 14 and to any of its other rights and the Customer’s obligations under this Agreement, OPT1MIZE TECHNOLOGIES LIMITED may suspend the Services or part of the Services:
14.3.1 in the event of emergency (as determined by OPT1MIZE TECHNOLOGIES LIMITED from time to time);
14.3.2 if the Customer fails to pay any Fees or other sums due since the Commencement Date;
14.3.3 if OPT1MIZE TECHNOLOGIES LIMITED has the right to terminate this Agreement pursuant to this Clause 14;
14.3.4 if OPT1MIZE TECHNOLOGIES LIMITED's (or its contractors') or the Customer's ability to provide the Services is prevented or substantially prevented or restricted by any regulation, law, decree, action, direction, order by any regulatory authority or body;
14.3.5 for scheduled maintenance of the OPT1MIZE TECHNOLOGIES LIMITED Technology; or
14.3.6 on any material breach of this Agreement by the Customer;
in each case without notice, compensation or any liability to the Customer whatsoever.14.4 If OPT1MIZE TECHNOLOGIES LIMITED suspends a Service due to Customer’s default of payment obligations to OPT1MIZE TECHNOLOGIES LIMITED as set forth in this Agreement, OPT1MIZE TECHNOLOGIES LIMITED reserves the right to charge the Customer a setup fee for re-initiation of services.
14.5 If OPT1MIZE TECHNOLOGIES LIMITED suspends or terminates the Services subject to this Clause 14, then for the avoidance of doubt, Customer shall be required to pay to OPT1MIZE TECHNOLOGIES LIMITED, as liquidated damaged and not as a penalty, the value of the Minimum Monthly Commitment (as per Schedule 3) for every month up to the date that this Agreement would have expired (the “Liquidated Termination Charges”), In the event that the Customer had given notice to terminate the Agreement on the date that OPT1MIZE TECHNOLOGIES LIMITED issued the notice of suspension or termination, then the Customer shall be required to pay the total aggregate Liquidated Termination Charges to OPT1MIZE TECHNOLOGIES LIMITED on the date of such notice.
15.1 The termination of this Agreement for whatever cause shall not:
15.1.1 prejudice or affect the rights of any party against the others in respect of any breach of this Agreement or in respect of any monies payable by any one party to another in respect of any period prior to termination; or
15.1.2 affect the provisions of Clauses 8, 9, 11, and 12 or Schedules which expressly or by implication are intended to survive termination and therefore which shall remain in force.
16.1 During the Term and for a period of six months thereafter the Customer shall not solicit to work for it any employee of OPT1MIZE TECHNOLOGIES LIMITED involved in providing the Services.
17.1 Neither party shall be liable for any delays or failures to perform any of its obligations under this Agreement which are caused by a Force Majeure Event, nor shall OPT1MIZE TECHNOLOGIES LIMITED (for the avoidance of doubt) be liable for any delays or failures to perform any of its obligations under this Agreement which are caused by a Force Majeure Event which affects OPT1MIZE TECHNOLOGIES LIMITED's other contractors.
17.2 In the event that either party becomes aware of any such delays or failures it shall immediately notify the other party of the Force Majeure Event and its anticipated duration.
17.3 If such delay or failure continues for more than 60 days from the date of initial notification of the occurrence of the Force Majeure Event, the party not affected by such Force Majeure Event shall be entitled to terminate this Agreement or the relevant part of it so affected forthwith.
18.1 Upon termination of this Agreement for whatever reason each Party shall be entitled to recover on demand from the other all sums which the other is liable to pay under this Agreement.
18.2 This Agreement shall be binding on and ensure for the benefit of the Parties' successors in title.
18.3 The Customer shall not be able to assign the benefit, whether in part or in whole, of any rights under this Agreement without the prior written consent of OPT1MIZE TECHNOLOGIES LIMITED.
18.4 This Agreement, together with the documents referred to herein, constitute the entire agreement between the Parties as to the subject matter hereof and supersede all prior understandings, representations, transactions or communications, whether written or oral, as to the subject matter hereof. Each Party acknowledges that it has not entered into this Agreement in reliance on any representation other than the representations expressly set out in this Agreement.
18.5 No such variations, deletions or admissions to this Agreement shall be effective except by agreement in writing between the Parties.
18.6 Any forbearance or delay on the part of any Party in enforcing the provisions of this Agreement or any of its rights hereunder shall not constitute a waiver of such provision or of a right thereafter to enforce the same.
18.7 Except as expressly stated otherwise in this Agreement, every notice required or authorized to be given under this Agreement shall be in writing and shall be deemed to be duly given if it (or the envelope containing it) is marked for the attention of, in the case of OPT1MIZE TECHNOLOGIES LIMITED, the Chief Operating Officer or, in the case of the Customer, the Managing Director and;
18.7.1 it is delivered by being emailed to k.bashir@opt1mize.com.
18.8 For the purposes of Clause 18.7 “notice” shall include any request, demand, instruction, communication or other document.
18.9 The Customer acknowledges and agrees that this Agreement is not exclusive and that OPT1MIZE TECHNOLOGIES LIMITED shall have the right to provide services that are the same as or substantially similar to the Services provided hereunder to third parties, including the Customer’s competitors.
19.1 This Agreement shall be governed and construed in accordance with the laws of Ireland and each Party irrevocably submits to the exclusive jurisdiction of the courts of Ireland in relation to all matters arising out of or in connection with this Agreement.
Please refer to “OPT1MIZE TECHNOLOGIES LIMITED COMMSETTLE” for detailed product specification.
Please refer to “OPT1MIZE TECHNOLOGIES LIMITED COMMSETTLE Services” for detailed support specification.
Fees
€0.00022 Per Minute Fee
$0.00025 Per Minute Fee
£0.00020 Per Minute Fee
0.25% Settlement Fee
Minimum Monthly Minutes
TBC
Initial Term br 1 Month renewable
Upon Customers request, OPT1MIZE TECHNOLOGIES LIMITED may at their discretion provide additional services to Customer in relation to Customers utilization of the OPT1MIZE TECHNOLOGIES LIMITED COMMSETTLE Platform. Compensation for Additional Services shall be invoiced to customer on a monthly basis, payable in advance and subject to terms and conditions set forth by this Agreement.
Additional Services shall include but not be limited to the following:
• Carrier Provisioning
• Routing Moves and Changes
• Second Line Support
• CDR Management
• Professional Services
TERMS AND CONDITIONS FOR CORPORATES
(1) OPT1MIZE TECHNOLOGIES LIMITED, a company incorporated in The Republic of Ireland with registered number 604002 whose registered office is at 17 Clanwilliam Square, Grand Canal Quay, Dublin 2 D02 DH98, Republic of Ireland ("OPT1MIZE TECHNOLOGIES LIMITED");
and(2) The “Customer”
Company Name:
Company Legal Entity Name:
Company Registration Number:
Country of Incorporation:
Company Registered Address:
(3) Hereinafter referred to in this Agreement as “Customer”, “Client”, “you” or “your”.
(A) What this Agreement covers. This Agreement is a framework contract which set out the basis on which we will carry out the services set out in Schedule 3.
(B) Why you should read them? Please read this Agreement carefully before you agree to it, as its terms apply to the services provided by us and its terms will be incorporated into any contracts entered into between you and us pursuant to these terms. The Agreement explains many of your responsibilities to us and our responsibilities to you, how and when each Contract and this Agreement can be terminated and the extent of our liability to you. If there are any terms that you do not understand or do not wish to agree to, please contact us. You should only complete the sign-on procedures and agree to the terms of this Agreement and enter into Contracts if you agree to be bound by this Agreement.
1.1 Who we are. We are OPT1MIZE TECHNOLOGIES LIMITED, a company incorporated in The Republic of Ireland with registered number 604002 whose registered office is at 17 Clanwilliam Square, Grand Canal Quay, Dublin 2 D02 DH98, Republic of Ireland
1.2 Communications between us are to be in English. This Agreement is concluded in England and all communications between you and us shall be in English only.
1.3 How to contact us. You may contact us in writing by email to dev@opt1mize.com or by posting a letter to our head office.
1.4 How we may contact you. If we have to contact you we will do so: (a) by telephone to the telephone numbers; or (b) by writing to you at the email address(es), you provided when agreeing to this Agreement or by using any other contact details you have provided to us or have used in communications with us.
1.5 ‘Writing’ includes emails. When we use the words “writing” or “written” in this Agreement, this includes emails.
1.6 Some of the services we provide are subject to the Payment Services Regulations 2017. The Regulations regulate how Payments must be transmitted and provide protection for the clients of authorised payment institutions and electronic money institutions.
The definitions set out in this clause apply in this Agreement as follows:
“Account Information Service Provider” means the provider of an online service to provide consolidated information on one or more payment accounts held by a payment service user with another payment service provider or with more than one payment service provider.
“Agreed Purposes” means fulfilling the terms of this Agreement and complying with applicable legislation relating to the prevention of money laundering and terrorist financing.
“Agreement” means this agreement including the Schedules and the Privacy Policy.
“Business Day” means a day when the clearing banks in the city of London are open for business, excluding Saturday, Sunday and public holidays.
“Contract” means any contract entered into pursuant to this Agreement.
“Controller”, “data controller”, “processor”, “data processor”, “data subject”, “personal data”, “processing” and “appropriate technical and organisational measures” all have the meanings set out in the Data Protection Laws in force at the time.
“Data Protection Laws” means (i) the Data Protection Act 1998 until 24 May 2018 (ii) the General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679) and any national implementing law, regulations and secondary legislation on and after 25 May 2018 and for so long as the GDPR is effective in the UK and (iii) any successor legislation to the Data Protection Act 1998 and the GDPR, in particular the Data Protection Bill 2017-2019, once it becomes law.
“Electronic Money” means electronically stored monetary value as represented by a claim against us.
“Payment Initiation Service Provider” means the provider of an online service to initiate a Payment Order at the request of a payment service user with respect to a payment account held at another payment service provider.
“Payment Services” means the services provided by us pursuant to the terms set out in Schedule 1. “Permitted Recipients” means the parties to this Agreement, the employees of each party, any third parties engaged to perform obligations in connection with this Agreement.
“Privacy Policy” means our privacy policy, a copy of which is available on our Website
(https://www.commsettle.net/privacypolicy).
“Regulations” means the Payment Services Regulations 2017 (SI 2017 No. 752).
“Safeguarded Account” means the bank account(s) belonging to us, which are separate to our own office bank accounts, into which we will receive money from you, or on your behalf, in return for the issuance of Electronic Money.
“Services” means the services identified in clause 4.
“Shared Personal Data” means the personal data to be shared between the parties pursuant to clause 12 of this Agreement. Shared Personal Data is defined in our privacy policy (https://www.commsettle.net/privacypolicy).
“Term” means the term of this Agreement, as set out in clause 3.4.
“Website” means our website from time to time currently www.CommSettle.net, www.CommSettle.Tech, www.Opt1mize.com or www.Medii8.com.
“Beta Version” means the equipment and software owned and managed by OPT1MIZE TECHNOLOGIES LIMITED that is still undergoing the addition and testing of further products and features, preceding the final version that will be officially released at a later date.
2.1 Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
2.2 The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
2.3 References to clauses and Schedules are to the clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule.
2.4 If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the Schedule shall prevail.
2.5 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
2.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
2.8 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
2.9 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time.
3.1 How can you agree to this Agreement? You can agree to this Agreement by checking the box online confirming that you agree to same, by signing same (using a PDF signer, wet ink or otherwise) or by otherwise confirming your agreement of same or availing of the Services.
3.2 When will you become a client of ours? You will be bound by this Agreement as soon as we notify you that you have become a client. In order to become a client and before any Services can be provided by us, the applicant must provide us with all information reasonably required by us to comply with our legal and regulatory obligations and our own internal risk management processes and agree to these terms. You warrant that all information provided to us is true and correct to the best of your knowledge and belief.
3.3 At our absolute discretion we may refuse to open an account for you and may do so without giving any reason.
3.4 This Agreement shall come into force on the date that we confirm to you that you are a client and shall remain in force until terminated in accordance with this Agreement.
4.1 We may in our absolute discretion provide, or continue to provide, the Services set out in Schedule 3 to you:
4.2 As part of the Services, we shall issue you with Electronic Money upon receipt of money from you or a third party on your behalf, store your Electronic Money and redeem Electronic Money both on your express instruction and in accordance with this Agreement.
4.3 Our Services do not include the provision of advice. We do not offer advice under this Agreement on any matter including (without limit) the merits or otherwise of any currency transactions, on taxation, or markets. Although we may provide you with market information from time to time, we do not provide advice. It is entirely for you to decide whether a particular Contract and your instructions to us, are suitable for you and your circumstances.
4.4 The Customer agrees that OPT1MIZE TECHNOLOGIES LIMITED provides the MEDII8 Payment Account service as a Beta Version and over time, at the discretion of OPT1MIZE TECHNOLOGIES LIMITED, new products and features will be added to the MEDII8 Payment Account service.
5.1 Where we receive money from you or on your behalf this money will be held by us in the relevant Safeguarded Account in exchange for the issuance by us to you of Electronic Money.
5.2 When we issue you with Electronic Money, you holding the Electronic Money and us holding the funds corresponding to the Electronic Money is not the same as a Bank holding your money in that:
(a) we cannot and will not use the funds to invest or lend to other persons or entities;
(b) the Electronic Money will not accrue interest; and
(c) the Electronic Money is not covered by the Financial Services Compensation Scheme.
5.3 You may hold Electronic Money and we may hold funds corresponding to your Electronic Money indefinitely. However, if we hold Electronic Money for you for more than two years, we shall use reasonable endeavours to contact you to redeem the Electronic Money and return the corresponding funds to you. If we are unable to contact you, we may redeem the Electronic Money and send the corresponding funds, less any of our costs incurred, to the last known bank account we have on file for you.
5.4 We accept no responsibility in the event that you send money to the incorrect account.
5.5 We do not accept cash or cheques. We accept monies by electronic funds transfer to our bank account, the details of which we shall provide to you upon demand.
6.1 All funds provided by you under a Contract (whether as security or otherwise) may be appropriated by us if we incur any liability in respect of any Contract or in the event that you are unable to pay sums due to us or breach of this Agreement.
6.2 If you fail to make any payments, in full or in part, due to us on time then (without prejudice to any other right or remedy that may be available to us under the Contract or general law):
(a) we may charge you interest at the rate of 4% above the base rate of the central banks of the country of the currency your funds are held in, from time to time in force, of the Bank of England from the date payment is due until the date payment is made and shall be compounded monthly;
(b) we will be entitled to terminate the Contract.
6.3 We may, at our discretion, make payments to third party introducers.
7.1 You warrant and represent to us (such representations and warranties to be made both on the date you sign this Agreement and on the date you enter into each Contract) that:
(a) you are acting in the course of a business, trade or profession;
(b) that you have appointed the Associated Service Provider as your agent to place orders to enter into Contracts with us and otherwise communicate with us.
(c) all information that you supply to us is complete, true, accurate and not misleading in any material respect;
(d) all sums which you send to us or are sent to us on your behalf (until these monies become due to us or are paid back to you) are and will remain owned by you and you have not created and will not create any charge or other encumbrance over or in respect of such monies.
(e) you are not prevented by any legal disability or subject to any law or regulation from performing your obligations under this Agreement and any related transactions contemplated by them.
(f) you have all necessary consents and have the authority to enter into an agreement under this Agreement and subsequent Contracts and if you are a body corporate, you are properly empowered and have obtained all necessary corporate or other authority pursuant to its constitutional and organisational documents;
(g) you comply with all relevant laws, regulations, exchange control requirements and registration requirements.
7.2 You undertake to inform us with immediate effect, if you are a corporation, where beneficial ownership of your corporation changes by more than 10%.
8.1 The material displayed on our Website is provided without any guarantees, conditions or warranties as to its accuracy.
8.2 You acknowledge and agree that Opt1mize and/or its licensors own all intellectual property rights in the Website. Except as expressly stated herein, this Agreement does not grant you any rights to,under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Website.
9.1 Where we and another person (such as another payment services provider) are liable to you in respect of the same matter or item, you agree that our liability to you will not be increased by any limitation of liability you have agreed with that other person or because of your inability to recover from that other person beyond what our liability would have been had no such limitation been agreed and/or if that other person had paid his or its share.
9.2 Where any loss, liability, cost or expense (a “Loss”) is suffered by you for which we would otherwise be jointly and severally or jointly liable with any third party or third parties, the extent to which such Loss shall be recoverable by you from us (as opposed to any third parties) shall be limited so as to be in proportion to the aggregate of our contribution to the overall fault for such Loss, as agreed between all of the relevant parties or, in the absence of agreement, as determined by a court of competent jurisdiction. For the purposes of assessing the contribution to the Loss in question of any third party for the purposes of this clause, no account shall be taken of any limit imposed or agreed on the amount of liability of such third party by any agreement (including any settlement agreement) made before or after such Loss occurred or was otherwise incurred.
9.3 We accept no responsibility for any delay in fulfilling a Contract attributed to the late arrival of funds or instruction of payment relative to the cut off times of the designated bank or for delays or faults due to the clearing banks or banking systems.
9.4 We shall not be liable for any bank charges that you may incur in sending funds to or receiving funds from us.
9.5 We shall not be liable to you for the non-performance of our obligations or the failure to execute any Payment Order if the execution of the Payment would be illegal.
9.6 Nothing in this Agreement limits or excludes our liability for death or personal injury caused by our negligence or for any damage or liability incurred by you as a result of fraud or fraudulent misrepresentation by us or to the extent that the liability may not be excluded or limited by any applicable law.
10.1 If you feel that we have not met your expectations in the delivery of our Services, please contact us via email to k.bashir@opt1mize.com.
10.2 If you are an eligible complainant, you may be able to take your complaint to the Financial Ombudsman Service should you not be satisfied with our final response. Eligibility criteria and information on the procedures involved are available from http://www.financial-ombudsman.org.uk. If you are not an eligible complainant, then your only recourse will be through the courts unless otherwise agreed between the parties.
11.1 To comply with the requirements of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017, the Proceeds of Crime Act 2002 and EU Wire Transfer Regulations (Regulation (EU) 2015/847) and related regulations, it may be necessary to obtain from you, and retain, evidence of your personal identity (or directors or partners of your business and/or your ultimate beneficial owners) in our records from time to time. If satisfactory evidence is not promptly provided to us we cannot accept your instructions.
11.2 To assist us with meeting our obligations, we may carry out an electronic verification check and credit reference check via third party providers in order to verify your or your shareholders or officers or partners, identity and credit standing. If such searches are carried out, we may keep records of the contents and results of such searches in accordance with all current and applicable laws. You acknowledge that us carrying out an electronic verification check or credit reference agency check will leave a soft footprint on the individual or entity’s credit history. You warrant that you have obtained the consent of each individual officer and shareholder to such checks being carried out.
11.3 We are also obliged to report any reasonable suspicions about instructions received, transactions and activities to the regulatory authorities. This may affect our relationship with you so far as confidentiality is concerned. If we are required under legislation (including the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 and the Proceeds of Crime Act 2002) to refrain from communicating with you and/or proceeding with your instructions, we can accept no liability for the consequences of being prevented from doing so.
12.1 We are obliged under the Money Laundering, Terrorist Financing and Transfer of Funds (Information of the Payer) Regulations 2017 to retain certain Shared Personal Data. Sub-clauses 12.2 to 12.5 sets out the framework for the sharing of personal data between the parties as data controllers. Each party acknowledges that you will regularly disclose to us Shared Personal Data collected by you for (among other things) the Agreed Purposes.
12.2 Each party shall comply with all the obligations imposed on a controller under the Data Protection Laws.
12.3 Each party shall:
(a) ensure that it has all necessary notices and consents in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes;
(b) give full information to any data subject whose personal data may be processed under this Agreement of the nature such processing. This includes giving notice that, on the termination of this Agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;
(c) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
(d) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by this Agreement;
(e) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
(f) not transfer any personal data outside the EEA unless the transferor:
12.4 Opt1mize shall process the Shared Personal Data only for the Agreed Purposes;
12.5 Mutual assistance. Each party shall assist the other in complying with all applicable requirements of the Data Protection Laws. In particular, each party shall:
13.1 When we may terminate this Agreement. We shall have the right (but not the obligation) to terminate this Agreement:
(a) at any time if you do not fulfil our regulatory customer due diligence checks on you while we are on-boarding you; and
(b) at any time and for any reason by giving you not less than one (1) weeks written notice; and
(c) upon or at any time after the occurrence of any one or more of the following events:
13.2 When you may terminate this Agreement. You may terminate this Agreement at any time by giving 1 months notice to us via email to k.bashir@opt1mize.com. We may contact you to confirm your request.
13.3 Effect of Termination. Upon the effective date of termination:
(a) you will no longer be able to avail of the Services; (b) all of your payment obligations under this Agreement will immediately become due and payable; (c) we shall redeem any Electronic Money we hold for you and send the equivalent funds to you to a bank account in your name, unless agreed by both parties, less any monies which are due and owing to us.
After termination, you may contact us using the contact details set out in clause 1.3 to redeem any Electronic Money you still hold with us.
14.1 Each party undertakes that it shall not at any time, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 14.2 and 14.3.
14.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.3 We may disclose confidential information to the person or organisation which introduced or referred you to us, solely as necessary and limited to the purpose of paying such person or organisation an introductory/referral or affiliate fee.
14.4 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
15.1 Ensuring this Agreement is legally enforceable. For a contract to be legally enforceable, there needs to be an offer, acceptance and consideration. This Agreement constitutes our offer to make the Services available to you and you agreeing to this Agreement constitutes your acceptance of this offer. In order to ensure that this Agreement is legally binding, upon you becoming a client, you promise to pay us the sum of one-Pound sterling, upon demand from us, as consideration.
15.2 Advertising. Opt1mize may include your name, logo and contact information in directories of our services, and other general promotional materials for the purpose of promoting the use of our Services generally. Neither party shall issue a press release relating to their business relationship without the written consent of the other party. Neither party may use the trademark or trade name of the other party without the written consent of such party.
15.3 Even if we delay in enforcing under this Agreement, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under this Agreement, or if we delay in taking steps against you in respect of your breach of this Agreement or any Contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date. For example, if you miss a payment and we do not chase you but we continue to fulfil the Contract, we can still require you to make the payment at a later date.
15.4 What if something unexpected happens? We shall have no liability to you under this Agreement or any Contract if we are prevented from or delayed in performing our obligations under this Agreement, or from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving our or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or our default or sub- contractors, provided that you are notified of such an event and its expected duration.
15.5 If a court finds part of this Agreement illegal, the rest will continue in force. Each of the sub-clauses, clauses and paragraphs of this Agreement operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining sub-clauses, clauses and paragraphs will remain in full force and effect.
15.6 This is our entire agreement with you. This Agreement, and any documents referred to in them, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
15.7 Do any other terms apply? By agreeing to this Agreement, you are also agreeing to the Privacy Policy.
15.8 We are not partners and neither of us may act as the other’s agent. Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture between you and us, 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).
15.9 We can make amendments to this Agreement. We may amend this Agreement by giving you no less than two months’ notice in writing. If you object to the proposed amendments, you have the right to terminate this Agreement without charge before the date proposed by us for the entry into force of the changes. You will be deemed to have accepted the proposed amendments unless you notify us and terminate this Agreement before the date proposed by us for the entry into force of the changes. If we receive no objection from you, such amendments shall take effect from the date specified by us but may not affect any rights or obligations that have already arisen and will not be retrospective. For the avoidance of doubt, the termination of this Agreement by any means by you, shall not affect any Contract nor any rights or obligations that have already arisen at the date of the termination.
15.10 What happens if you are jointly a client of ours with another person? Where you comprise two or more people, each person will be jointly and severally liable to us in respect of all obligations contained in this Agreement.
15.11 Can you obtain a copy of this Agreement or additional information? You may request and we shall provide a copy of this Agreement and any information set out in Schedule 4 of the Regulations (if relevant) at any time prior to termination of this Agreement.
15.12 We may transfer this agreement to someone else. We may transfer our rights and obligations under this Agreement to another organisation without your consent. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under any Contract.
15.13 You need our consent to transfer your rights to someone else (except that you can always transfer our guarantee). You may only transfer your rights or your obligations under this Agreement to another person if we agree to this in writing.
15.14 Nobody else has any rights under this Agreement. This contract is between you and us. No other person shall have any rights to enforce any of its terms.
15.15 Which laws apply? This Agreement and any Contract to which this Agreement applies and any disputes or claims arising out of or in connection with this Agreement or any such Contract or its or their subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the laws of Republic of Ireland.
15.16 Where you may issue proceedings under this Agreement. You irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim or other matter that arises out of or in connection with this Agreement and any Contract or their subject matter or formation (including non-contractual disputes or claims) or any of the documents to be entered into pursuant to this Agreement.
1.1 The following definitions and rules of interpretation apply to this Schedule:
“Beneficiary” means the recipient of money pursuant to a Payment.
“Beneficiary Account” means the bank account of the Beneficiary which is the subject of a Payment.
“Fees” means the fees which will be charged for the provision of the Payment Services, the details of which are set out in the Associated Service Provider Terms - see Schedule 3.
“Medii8 Interface” means the online banking interface branded as “MEDII8” packaged with the COMMSETTLE service.
“Payment” means us redeeming your Electronic Money and sending the corresponding funds to a Beneficiary Account, the details of which you set out in your Payment Order.
“Payment Contract” means a contract between us and you whereby we commit to executing one or more Payments on your behalf pursuant to the Payment Order you have provided to us.
“Payment Order” means a request from you to us for us to execute one or more Payments.
“Unique Identifier” has the meaning set out in paragraph 3.2(b).
2.1 How to place a Payment Order.
You may place a Payment Order with us via the Medii8 Interface. We will accept Payment Orders received by us from the Medii8 Interface on your behalf. We are entitled to assume that:
(a) all Payment Orders received by us from the Medii8 Interface have been authorised by you without carrying out any further due diligence.
Payment Orders received by us in accordance with this paragraph 3.1 will be deemed by us as ‘consent’ for the execution of the Payment(s) set out in the Payment Order and accordingly authorised by you pursuant to Regulation 67 of the Regulations.
2.2 Details to be set out in the Payment Order. The Payment Order must confirm:
(a) the amount and currency of the money you wish to send pursuant to each Payment.
(b) the details of the Beneficiary Account (the “Unique Identifiers”) which is to be the subject of
each Payment, including the following:
2.3 What if you have provided incorrect details? If you think that you have provided incorrect Unique Identifiers or other details relating to a Payment, you must contact Opt1mize immediately by email to the support email.
2.4 Deemed receipt of the Payment Order. The Payment Order shall be deemed to be received at the time at which it is received except that:
(a) where the Payment Order is received on a day which is not a Business Day or is received after 4 pm, London time on a Business Day, we have the right to treat your Payment Order as having been received on the next Business Day; and
(b) if a Payment is to be made on a day in the future your Payment Order shall be deemed to be received on the day stated for the making of that Payment (provided we hold enough Electronic Money to execute the Payment and pay the associated Fees) or, if that day is not a Business Day, on the Business Day immediately following that date.
2.5 What happens when a Payment Order is accepted? Once accepted, such Payment Order will form a Payment Contract. You may be notified when a Payment Order is accepted by us. Please note that we are under no obligation to accept any Payment Orders.
2.6 Options available to us following receipt of a Payment Order. Following receipt of a Payment Order, we may:
(a) refuse that Payment Order and if we do so, we shall (unless it would be unlawful for us to do so) notify you of that refusal, the reasons for that refusal (if possible), and the procedure for rectifying any factual errors that lead to that refusal. Such notification shall be given to you as soon as practicable following the refusal and we may charge you for such notification where the refusal is reasonably justified. A Payment Order which is refused by us shall be deemed not to have been received for the purposes of paragraph 3.4; and/or
(b) request further confirmation or information from you if we consider that such confirmation or information is desirable and/or that Payment Order is ambiguous.
2.7 Revocation of Payment Orders. The Client may not revoke:
(a) a Payment Order which has been initiated through a Payment Initiation Service Provider,
without our written consent;
(b) a Payment Order initiated in any way other than through a Payment Initiation Service Provider, after it has been received by us except if you have agreed with us that the Payment is to be made on a day in the future and the revocation is received by us prior to the end of the Business Day preceding that day - such revocation of the Payment shall be deemed to be withdrawal of consent for the Payment in accordance with Regulation 67 of the Regulations.
2.8 Any withdrawal of consent for a Payment, in accordance with paragraph 3.7(b), must be received by us in the same way you place a Payment Order pursuant to paragraph 3.1.
3.9 We may charge you for any revocation of a Payment. In particular, but not by way of limitation:
3.10 Time for delivery of proceeds of Opt1mize. Where the Payment is denominated in:
(a) euro and is being sent to a Beneficiary Account in the EEA or sterling and is being set to a Beneficiary Account within the UK, we shall ensure that the amount of the Payment is credited to the Beneficiary’s payment service provider’s account by the end of the Business Day following that on which your Payment Order was deemed to be received;
(b) an EEA currency other than euro and the Beneficiary Account is located within the EEA, we shall ensure that the amount of the Payment is credited to the Beneficiary’s payment service provider’s account by the end of the fourth Business Day following that on which your Payment Order was deemed to be received; and
(c) a non-EEA or the Beneficiary Account is located outside the EEA, please contact Opt1mize using the contact details set out in Schedule 2 for details of execution times.
4.1 We will provide you with the information specified in paragraph 4.1, free of charge, at least once a month. You will examine the confirmations and communications which we send to you within a reasonable time after receiving them and will promptly advise us without undue delay of any apparent mistake or discrepancy. Delay in notification may make correcting any error difficult.
4.2 If you prefer paperless communications with us, we may communicate and make available all relevant transaction information with you (including the information specified in paragraph 4.1) through Medii8 Interface (if any).
5.1 In order for a Payment to be executed, you will need to hold enough Electronic Money to complete the Payment and pay the applicable Fee. This should be achieved by you sending us money in the correct currency to the Safeguarded Account, in which case we shall issue you with the appropriate amount of Electronic Money.
5.2 You can redeem the Electronic Money you hold with us and receive the corresponding funds into a bank account belonging to you by entering into a Payment Contract and using your own bank details as the Beneficiary Account details.
5.3 We will automatically redeem your Electronic Money and send the corresponding amount of funds to the Beneficiary Account pursuant to the terms of the relevant Payment Contract.
6.1 You must take all reasonable steps to keep safe all communication channels you and your employees and representatives have with the Medii8 Interface including any API keys, passwords, PINs or email addresses you use to communicate with the Medii8 Interface. If you become aware that there is a risk that your communication with the Medii8 Interface is no longer secure, you must notify us immediately.
6.2 You must take all reasonable precautions to prevent fraudulent use of Payment Services.
6.3 We shall contact you via email in the event of suspected or actual fraud or security threats, unless we are of the view that your emails might be compromised, in which case we shall contact you by telephone.
6.4 We may stop or suspend your ability to use the Medii8 Interface if we have reasonably justified and duly evidenced reasons for same relating to:
If we do deny access to the Medii8 Interface in accordance with this paragraph 6.4, unless doing so would compromise security or is unlawful, we shall notify you as soon as possible via phone or email in accordance with clause 1.4.
7.1 Subject to the remainder of this paragraph 7, where it is established that:
(a) a Payment was not authorised by you or was incorrectly initiated or executed by us; and
(b) you have notified us by email to dev@opt1mize.com, without undue delay on becoming aware of
the unauthorised or incorrectly executed Payment no later than one month after the date the Payment was made,
we shall refund to you the full amount debited erroneously immediately and the amount debited without authorisation as soon as practicable and in any event no later than the end of the Business Day following the day on which we became aware of the unauthorised Payment, unless we have reasonable grounds to suspect fraud and notify the appropriate authorities.
7.2 it shall be for you to prove that the Payment was not authenticated by you. Failure to do so will mean that you are not entitled to a refund in accordance with this paragraph 7.
7.3 We shall not be liable for non-execution or defective execution of a Payment which we have made in accordance with a Unique Identifier given to us by you or deemed to have been given by you which proves to be incorrect. However, we shall make efforts to trace any non-executed or defectively executed Payment and notify you of the outcome.
7.4 We are liable to you under paragraph 7.1 for the correct execution of a Payment unless:
(a) paragraph 7.3 applies; or
(b) we can prove to you (and where relevant, to the Beneficiary’s payment service provider) that
the Beneficiary’s payment service provider received the amount of the Payment within the appropriate time period described in paragraph 3.10.
7.5 Under Regulation 92 of the Regulations, you may be entitled to a refund in certain circumstances where a Payment is initiated by the Beneficiary. It is not anticipated that any Payment will be initiated by a Beneficiary under the Services provided by us pursuant this Schedule.
7.6 The provisions in this paragraph 7 shall survive termination of this Agreement and any Contract.
7.7 In some circumstances a number of intermediaries (such as correspondent banks) may be involved in an international transfer of currency, and such intermediaries may charge fees and expenses. The charges will in most cases (but not always) be deducted prior to its delivery. These charges are beyond our control and whilst we will endeavour to minimise these for you wherever possible, those charges cannot therefore be calculated in advance. You hereby acknowledge that you shall be liable for these charges.
8.1 We shall charge you the Fees for Payments at the time each Payment executed. These Fees will be deducted from Electronic Money you hold on account with us and/or be invoiced by the Associated Service Provider.
8.2 We will pass on to you all bank charges and any other costs incurred or suffered by us or by your instruction, to reverse, recall or modify any Payment except as the result of any error on our part. Some of these charges are levied by us to offset the costs we incur from our banking providers for making Payments. If the banks we use charge us more to process any Payments, we shall have to pass this cost onto you. We shall provide you with as much notice as we can.
8.3 Any transfer of funds (whether resulting from a Contract or otherwise) may be liable to taxation in the UK or in any other applicable jurisdiction. It is your responsibility to ascertain the applicability and extent of any taxation and to declare and pay any tax on any such sums. In the event that we are required to withhold any sums in respect of taxation by any court, regulation or taxing entity in any applicable jurisdiction, we shall be permitted to do so. We shall have no obligation to account to you in respect of sums so withheld.