Terms & Conditions
1 General
1.1 These general terms and conditions (‘Agreement or ‘General Terms and Conditions’) incorporated herein shall apply to every commercial agreement (the ‘Commercial Agreement’) regarding the Services (as defined below) to be granted and/or delivered by FraudBuster or any of its affiliates (the ‘Supplier’) to a customer (the ‘Customer’). These General Terms and Conditions shall also apply to all agreements with the Customer, the execution of which calls for the services of third parties.
1.3 The Agreement enters into force on 22/04/2024
2 Definitions and interpretation
2.1 In this Agreement words and expressions shall have the following meaning:
‘Services’ shall mean the various services as set forth in the annexes to this Agreement (‘Service Description’), including any Supplier equipment/hardware or application/software (“Software”), and includes such additional future services as may be agreed upon by the Parties to be provided by Supplier to Customer. Any references to ‘Service’ shall mean any one of them;
‘Products’ shall mean the various products as set forth in the annexes to this agreement (‘Product Definition’), including any Supplier equipment or software. Any references to ‘Product’ shall mean any one of them;
‘Charges’ means any payments due from Customer to Supplier pursuant to the terms of the Agreement.
‘Force Majeure’ means any cause beyond a Party’s reasonable control affecting the performance of its obligations hereunder including but not limited to acts of God, insurrection or civil disorder, war or military operations, national or local emergency, acts or omissions of Government or regulatory authority, industrial disputes of any kind, fire, flood, lightning, explosion, subsidence, inclement weather, acts or omissions of persons or bodies for whom the affected party is not responsible.
‘Initial Term’ means the term set out in the Commercial Agreement.
‘Value Date’ means the date upon which the transfer of the Charges is completed, that is when the Charges appear as a credit on Supplier’s bank account.
2.2 References in the Agreement to Supplier and Customer shall include respective employees, successors (whether by operation of law or otherwise) and permitted assigns.
2.3 Headings are included in this Agreement for ease of reference only and shall not affect the interpretation or construction of the Agreement.
2.4 In the event of any conflict between these General Terms and Conditions and any terms in the Commercial Agreement, the terms in the Commercial Agreement will prevail.
3 Provision of services
3.1 Supplier has developed an application and software which enables solutions for mobile money fraud. Supplier shall supply the Services as specified in the Commercial Agreement. The Customer does not have any direct access to the Software. Both the scope of the Right of Use (defined below) and the Services is, when agreed upon, limited to what has been explicitly agreed upon in the Commercial Agreement.
3.2 The Services will be supplied from the Effective Date for the Initial Term as specified in the Commercial Agreement and will continue to be provided until the effective termination of the Commercial Agreement.
3.3 Supplier reserves the right to use affiliates or subcontractors to partially or entirely provide the Services.
3.4 Customer shall use the Services in accordance with the provisions in this Agreement.
3.5 In addition to the timely fulfilment of all its obligations under the Commercial Agreement and these General Terms and Conditions, the Customer shall:
3.5.1 Provide the Supplier with all co-operation and information reasonably required for the execution of the Agreement and Commercial Agreement;
3.5.2 Comply with all applicable laws and regulations with respect to its activities under the (Commercial) Agreement, including but not limited to its obligations under the Data Protection Legislation as the controller of personal data processed by the Supplier;
3.5.3 Obtain and shall maintain all necessary licenses, consents, permissions and network connections and telecommunications links necessary for the Supplier, its contractors and agents, to perform their obligations under the Commercial Agreement, including without limitation the Services;
3.6 Unless otherwise agreed upon in the Commercial Agreement, if an acceptance procedure has been agreed upon in writing, the acceptance period shall amount to 10 (ten) days after delivery or, if a phase to be implemented by the Supplier has been agreed upon in writing, after completion of the phase in question. During the acceptance period the Customer may not use the results of the Services for productive or operational purposes.
3.7 Unless otherwise agreed upon in the Commercial Agreement, the results of the Services shall be deemed to have been accepted by the Customer:
3.7.1 on completion of the provision of Services, in case an acceptance test has not been agreed between Parties;
3.7.2 on the first day after the acceptance period, in case an acceptance test/period has been agreed between Parties in writing;
3.7.3 when the Customer notifies the Supplier in any way before the end of the acceptance period that the results of the Services are accepted or that only imperfections remain that do not prevent this acceptance; or
3.7.4 the Customer makes any use of the Services provided, for productive or operational purposes before the formal moment of acceptance.
3.8 If, within 10 (ten) days after delivery, the Customer has not provided to the Supplier written notice identifying specifically any basis for not approving the Services, all Services submitted to the Customer for approval shall be deemed accepted.
3.9 If the Customer does not accept the provision of the Services, then the Customer and the Supplier will together draft a list with those errors that prevent the Services from being accepted by the Customer. The Supplier will remedy these errors within a reasonable time. With the Supplier having proved the remedy of all errors of the list the Services are deemed to be accepted.
3.10 When the Supplier has not succeeded in remedying all errors within a reasonable period, Parties will discuss any possible next steps. If the Services are provided in phases, the non-acceptance of a certain phase shall be without prejudice to any acceptance of an earlier phase.
4 Scope Right of Use
4.1 Subject to full payment and the restrictions as set out in these General Terms and Conditions and the Commercial Agreement, the right of use (“Right of Use”) of the Customer consists of and is limited to the performance of the Services by the Supplier during the term of the Commercial Agreement, solely for the Customer’s internal business operations. For such performance of Services, the Supplier shall use its Software, and the Customer explicitly acknowledges that it does not have direct access or a direct right of use to the Software of the Supplier.
4.2 The Customer shall make all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and shall, in the event of any such unauthorized access or use, immediately inform the Supplier.
4.3 The Supplier shall make commercially reasonable endeavours to keep the Services available 24 hours a day, seven days a week, except for planned maintenances and unscheduled maintenances with regard to the Software.
4.4 The Customer shall not:
4.4.1 Attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the hardware or the Software vested therein in any form or media or by any means; or
4.4.2 Attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human perceivable form all or any part of the Software; or
4.4.3 License, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software available to any third party.
4.5 The Supplier does not warrant that the Services will be uninterrupted or error-free, nor that the Services, documentation and/or information obtained by the Customer through the Services of the Supplier will meet the Customer’s requirements. The Supplier 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, in so far this delay, delivery failure or loss are not caused by a proven gross fault or negligence of the Supplier.
5 Charges, credit limits and payment terms
5.1 Specific terms
The Charges and payment terms specific to the Supplier Service which Customer purchases hereunder are included in the Commercial Agreement.
5.2 General terms
Unless otherwise explicitly specified or stipulated in the Commercial Agreement, the following General terms shall apply to the Commercial Agreement:
5.2.1 All payments under this Agreement are to be made net of bank charges and in EURO to the bank specified by Supplier.
5.2.2 All payments shall be due 30 days after reception of invoice.
5.2.3 Payment shall only be deemed made on the Value Date. Interest will be charged on any undisputed amounts that are overdue on a daily basis, until such amounts are paid at an interest rate of 2% per month. Additionally, in case of an overdue payment, damage compensation equal to ten (10) percent of the unpaid invoiced amount shall be owed automatically and without prior notice of breach, subject to a minimum of 250,00 EUR.
5.2.4 All amounts due under the Agreement to be paid by Customer to Supplier shall be paid in full (without deduction or withholding except as required by law) and Customer shall not be entitled to assert any credit, set-off or counterclaim against Supplier in order to justify withholding payment of any such amount in whole or in part. All payments are non-cancellable and non-refundable, and are exclusive of value added tax or any other taxes, which shall be added to Supplier’s invoice(s) at the appropriate rate.
5.2.5 In the event that Customer wants to dispute an amount in a Supplier invoice, such dispute shall be communicated in written within 10 (ten) days of the reception of the invoice, clearly specifying the amounts disputed and the reasons for the dispute. In case no dispute notice is received within the specified period, Customer shall be deemed to have accepted the invoice. Any non-disputed amounts shall still be paid by due date.
5.3 Customer acknowledges that Supplier’s records of the Services delivered to Customer are conclusive evidence of the provision of the Services.
5.4 Customer shall provide an invoice address and all relevant details for smooth payment of invoices to Supplier.
6 Term, suspension and termination
6.1 Unless otherwise specified in the Commercial Agreement, The Commercial Agreement shall start at the Effective Date and has an Initial Term of 1 year. The Commercial Agreement shall automatically continue after the expiration of the Initial Term for an additional period of 1 year unless terminated in accordance with the provisions below:
Either Party can terminate the Commercial Agreement with immediate effect if
– the other Party breaches any material term or condition of the Commercial Agreement or these General Terms and Conditions and fails to cure this within thirty (30) business days (excluding breaches regarding payment by the Customer to the Supplier, upon which the Commercial Agreement can be terminated immediately after notification) after notice is given by the other Party
– the other Party becomes insolvent or makes a general assignment for the benefit of creditors or files or is filed against a petition under any bankruptcy act or similar statute
6.2 Each Party may terminate this contract with 4 months’ notice to the other Party. Early termination charges in such case may apply as and if specified in the Commercial Agreement.
6.3 Supplier shall be entitled to terminate or modify either entirely or partially this Agreement, without any liability whatsoever, if any license or authorization which Supplier requires in order to provide a Service is not obtained or is withdrawn or otherwise cancelled or altered in a way which prevents Supplier’s ability to provide the Service.
6.4 Supplier shall not be liable for any loss or damage suffered by Customer as a result of a suspension.
6.5 Upon termination, any right of use of the Services shall immediately terminate and each Party shall return and make no further use of any equipment, property, confidential information and other items (and all copies of them) belonging to the other Party.
7 Indemnity
7.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, and direct losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) related to use of the Services in a manner not permitted under the Agreement, provided that:
7.1.1 the Customer is given prompt notice of any such claim;
7.1.2 Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
7.1.3 the Customer is given sole authority to defend or settle the claim.
7.2 The Supplier shall, subject to article 7 (limitation of liability), defend the Customer from any claim that the Supplier’ IP infringes on any patent, copyright, trade mark, data base right or right of confidentiality, effective as of the Effective Date, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims provided that:
7.2.1 The Supplier is given prompt notice of any such claim;
7.2.2 The Customer provides reasonable co-operation to the Supplier in the defense and settlement of such claim, at the Supplier’s expense; and
7.2.3 The Supplier is given sole authority to defend or settle the claim.
7.3 In the defense or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, or replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the (Commercial) Agreement on 7 (seven) days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
7.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
7.4.1 a modification of the (output of) the Services by anyone other than the Supplier; or
7.4.2 the Customer’s use of the Services in a manner contrary to the instructions given to the Customer by the Supplier; or
7.4.3 the Customer’s use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
7.5 The foregoing states the Customer’s sole and exclusive rights and remedies, and Supplier’ (including Supplier’ employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
8 Limitation of liability
8.1 Except as expressly and specifically provided otherwise in the Commercial Agreement, the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. The Services are provided to the Customer on an ‘as if’ basis.
8.2 Except as expressly and specifically provided otherwise in the Commercial Agreement or these General Terms and Conditions, all warranties, representations, conditions and all other terms of any kind are, to the fullest extent permitted by applicable law, excluded from the Commercial Agreement with the Customer.
8.3 Except in the case of death or personal injury, the maximum aggregate liability of both Parties for any loss sustained by the other Party (whether as a result of negligence or otherwise) in connection with anything done or omitted to be done under this Agreement shall be limited to the total aggregated fees paid by Customer to Supplier under the Commercial Agreement during the preceding six months.
8.4 Neither Party shall be liable in any circumstances to the other for any indirect or consequential loss or damage or for loss of revenue, profit, anticipated savings, business or goodwill, loss or corruption or destruction of data.
8.5 Customer agrees to indemnify and hold Supplier harmless from any liability it incurs as a consequence of
1) the use and/or publication of any communications or information transmitted by Customer or to Customer.
2) any claim by third parties or Customer’s customers based on the use of Customer of any of the Services.
9 Force Majeure
9.1 Parties shall not be held liable for failure in performing any of its obligations under this Agreement if such failure is caused by or arises as a result of an event of Force Majeure.
10 Confidentiality
10.1 Both Parties shall keep in confidence any confidential information of the other party and will not (and will use reasonable endeavors to ensure that directors, employees, officers, servants, agents, associates and professional advisers will not) disclose such terms to a third party. Any confidential information will only be used for a purpose as described in this Agreement and/or in the Commercial Agreement.
10.2 The following disclosures shall not constitute a breach of confidentiality:
- A disclosure authorized in writing by the other party;
- Disclosure to comply with the rules of a stock exchange, a statutory or other regulatory requirement or pursuant to an order of a competent court or tribunal; or
- A disclosure made to the disclosing party’s financial or professional advisors in circumstances where the latter assume an obligation of confidentiality in respect of the information.
10.3 Customer will not use the information obtained from Supplier to develop a similar service or let a third party develop a similar service, be it for internal purposes only or for commercial activities.
10.4 Neither party shall make any press announcements concerning this (Commercial) Agreement or publicize this (Commercial) Agreement in any way without the prior written consent of the other party. Supplier may disclose the fact that Customer is obtaining service from Supplier.
10.5 Confidential information shall remain the property of the disclosing party. At termination of this Agreement, any confidential information will be returned to the disclosing party or properly destroyed.
10.6 Each Party shall take all reasonable steps to ensure that the other’s confidential information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement and/or the Commercial Agreement.
10.7 The Supplier shall not be responsible (with the exception of a gross error by the Supplier) for any loss, destruction, alteration or disclosure of confidential information caused by any third party.
10.8 This clause shall survive termination of the Agreement and/or the Commercial Agreement, however arising.
11 Intellectual property rights
11.1 Nothing in this Agreement shall be construed as conferring any license to intellectual property or as an assignment of the intellectual property rights of one party to the other party.
11.2 The Customer acknowledges and agrees that the Supplier owns all intellectual property rights in the Services and the Software (“Supplier’ IP”). These General Terms and Conditions and the Commercial Agreement do not grant the Customer any rights to or in patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of Supplier’ IP.
11.3 As part of the Services, the Software might be customized for the Customer (the “Personalization”). The Personalization is limited to the customization of the Customer specific settings of the Software/services, and does not involve any material adjustments of the Software itself. The Personalization and all results thereof are part of the Software and therefor Supplier’ IP.
11.4 Customer shall indemnify and keep Supplier harmless from any loss, damage, liability or expense incurred by Supplier arising out of any infringement of the intellectual property rights of third parties related to Customer use of the platform or of any service provided by Supplier pursuant to this Agreement.
12 Data Protection
12.1 Both Parties will comply with all applicable requirements of the applicable national data protection legislation and the General Data Protection Regulation (EU) 2016/679 (“Regulation”) and any other directly applicable European Union regulation relating to privacy (all together hereinafter referred to as “Data Protection Legislation”). This clause is in addition to, and does not relieve, remove or replace, a Party’s obligations under the Data Protection Legislation.
13 Assignment
13.1 This Agreement will not be assignable by either party without the prior written and unambiguous consent of the other party, except to an affiliate or to the legal successor of the entire business, provided that the assignee will assume all the duties and obligations of the assigning party. Such consent will not be unreasonably withheld. The assigning party will give notice to the other party of the assignment and will continue to be bound after assignment by the provisions of this Agreement.
14 Entire contract
14.1 This Agreement represents the entire understanding between the parties in relation to the provision of any service and supersedes all other agreements and representations, whether oral or in writing. The agreement may be amended by agreement of the parties and any such amendment shall be in writing and signed by duly authorized representatives of both parties.
15 No waiver
15.1 Failure by either party at any time to enforce any of the provisions of this Agreement shall neither be construed as a waiver of any rights or remedies hereunder nor in any way affect the validity of the Agreement, and no waiver of a breach of the Agreement shall constitute a waiver of any subsequent breach.
15.2 Termination of the Agreement shall not operate as a waiver of any breach by a party of any of the provisions thereof and shall be without prejudice to any rights or remedies of either party which may arise as a consequence of such breach or which may have accrued hereunder up to the date of such termination.
15.3 No waiver of a breach of the Agreement shall be effective unless given in writing.
16 Independent contractors
16.1 The Parties to this Agreement and/or the Commercial Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, joint venture or partnership between the Parties or to impose any partnership obligation or liability upon either party. Each Party shall bear its own costs and expenses in performing this Agreement and the Commercial Agreement.
17 Survival
17.1 Those conditions of the Agreement of a continuing nature shall survive termination of this Agreement. Irrespective of termination notice, where applicable, any Commercial Agreement shall remain into force until expiry of the duration specified in such annex and stay subject to the terms of these General Terms and Conditions.
18 Severability
18.1 The invalidity or non-enforceability for any reason of any part of the Agreement or the Commercial Agreement shall not prejudice or affect the validity or enforceability of the remainder of the Agreement or the Commercial Agreement. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted and/or modified, the provision shall apply with whatever modification is necessary, within the spirit of this provision and the intend between Parties, to give effect to the commercial intention between Parties.
19 Dispute resolution and governing law
19.1 The Agreement shall be governed by and construed in accordance with Belgian law (the Vienna Sales Convention shall be explicitly excluded). The parties hereby submit to the exclusive jurisdiction of the courts of Brussels.
20 Notices
20.1 All notices and other communications shall be in English.
20.2 Notices shall be sent or delivered to the respective addresses as set forth below or such other address as the intended recipient shall notify the sender in writing:
FraudBuster
6 Rue Dewoitine
78140 Vélizy Villacoublay
France