MITEK LTD , (“Company”), agrees to perform the services and provide the products specified in the applicable Company quotation, proposal, engagement letter, or agreement (collectively, the “Services”) for the benefit of the named client or Customer (“Customer”), under the following General Terms and Conditions (“Terms”). By requesting the Services, Customer voluntarily elects to enter into and be bound by these Terms.
Company is an independent contractor and is not an employee, agent, or partner of Customer. Nothing contained herein shall be construed to create an employment or principal-agent relationship or joint venture between Company and Customer, and neither Party shall have the right, power or authority to obligate or bind the other in any manner whatsoever.
Company warrants that it will:
(a) deliver the Services using properly qualified personnel in accordance with the applicable Company quotation, proposal, engagement letter, or agreement (the “Agreement”).
(b) deliver good title to any products furnished to Customer as part of the Services.
(c) provided all payments for the Services are received by Company, correct any errors or omissions regarding the Services which are discovered within ninety (90) days after the Services are delivered. Such corrections will be made at no additional charge to Customer.
Unless otherwise specifically agreed in writing, if the Services entail the delivery of a report to Customer, such report will be deemed to be accepted by Customer in the absence of any written comments by Customer within a seven (7) day period from Customer’s receipt of the report.
Company makes no other warranties, express or implied, with respect to the services and any products delivered therewith, including, without limitation, any warranty of merchantability or fitness for a particular purpose.
Customer acknowledges and confirms that:
(i) the implementation of any network security recommendations and/or designs in connection with the services and/or any service deliverables are in no way guaranteed or warranted to prevent a network security breach or unauthorized access;
(ii) Company is not an insurer or guarantor, and Customer is responsible for carrying its own insurance to cover any losses incurred as a result of any network security breach or other failure in connection with the services and/or the associated deliverables; and
(iii) the services are priced only on the basis of the performance of the scope of work contained in the agreement, and not on the basis of:
(a) the value of any data contained in Customer’s network, (b) the extent of Customer’s reliance on its network, or (c) the provision by
Company of any form of guarantee or warranty against third party intrusions, attacks, fraud, security failures, breaches and associated
losses or damages.
Company may at its absolute discretion charge interest, which Customer shall promptly pay, on all amounts not paid strictly in accordance with these
Terms and the Agreement. Interest shall accrue at the maximum amount permitted by law. If unpaid amounts are collected through legal proceedings or by a collection agent, Customer shall pay reasonable costs and attorneys’ fees. Payment of fees in one invoice shall not be set off or withheld against fees payable in connection with any other matter. Should any outstanding invoice remain unpaid beyond the stipulated time period, Company shall be entitled to cancel the provision of the Services without incurring liability to Customer and without prejudice to any of Company’s other rights.
Customer shall be responsible for any/all assessed taxes resulting from the Agreement, except corporate income taxes based on Company’s profits, and/or, taxes on Company’s personnel, including personal income and social security taxes, for which Company shall be solely liable/responsible. Should a governmental body mandate that Customer withhold tax from payments to Company, the invoiced amount payable, without regard to taxes, shall be adjusted in favor of Company such that the amount received by Company after deduction of such withholding tax shall be equal to the amount it originally invoiced Customer without regard to taxes. Where the Customer withholds tax from payment to the Company, the Customer will provide to the Company a withholding tax certificate as evidence that the tax has been remitted to the relevant Government authority. In the event that there is a change in the legislation of the country(ies) of operations or origin of payment, or in the interpretation of such legislation, including but not limited to taxes or customs and excise duties of whatever nature, after the effective date of this Agreement, which results in an increase in the costs to Company of performing this Agreement, then Customer shall reimburse Company the amount of the increase in such costs.
Company shall endeavour to satisfy any changes that Customer may request regarding the specifications of the Services. Customer acknowledges and shall recognize Company’s right to charge additional amounts for such changes. To the extent Customer requires the performance of any services that are outside the scope of the Services, the parties shall work to prepare and execute a Variation Order. Services performed in connection with any such Variation Order shall be governed by these Terms.
If the Services are to be provided within a specified time period and Customer subsequently requests that Company vary such schedule, Company shall have the right to assert additional charges to cover any additional personnel costs and other costs and expenses which Company incurs in accommodating such change.
As a material condition of Company’s agreement to provide the services at the price specified, Customer agrees that Company’s entire liability for any claim in connection with the services shall not exceed the aggregate purchase price paid for the services.
The parties hereby agree to release and hold each other harmless from and against all damage, loss, liability, claims, demands and causes of action of every kind and character, resulting from or arising in connection with the services, including but not limited to those resulting from or arising in connection with: (a) network failures or downtime; (b) security breaches or failures, and/or (c) indirect, incidental, consequential, special, punitive or other similar damages, including but not limited to: loss of use, data, assets, business, good will, or actual or anticipated revenues or profits, and the cost of substitute products or services. the liability limitations in this clause shall apply regardless of whether: (i) Company has been advised of the possibility of the corresponding liability, (ii) the services were intended to prevent the events that gave rise to the claimed liability, or (iii) the claimed liability is based on breach of contract or warranty, negligence (sole or concurrent, active or passive), strict liability, failure of essential purpose or any other legal or equitable theory.
Company and Customer shall protect, defend, indemnify and hold each other and their respective officers, directors, employees, contractors, agents, and invitees harmless from and against any and all liability, claims, demands, proceedings and causes of action resulting from:
(a) the death or illness of or injury to any of their respective personnel, regardless of the cause of such death, illness or injury, including where the same is caused by or contributed to by the negligence, including sole or concurrent, of the indemnified Party or its affiliates, or their respective officers, directors, employees, contractors, agents, and invitees; and (b) the loss of or damage to their respective property, and the property of their respective affiliates and sub-contractors, and their respective officers, directors, employees, contractors, agents, and invitees.
All drawings, technical information, design and other data supplied by the Company to the Customer shall remain the Company’s sole property and shall not be shown to a third party without the Company’s prior written consent.
Each of the Parties hereto agrees to keep confidential all Proprietary Information received from the other Party, not to disclose the same to any third Party and to use such only in relation to the Agreement. The foregoing shall not apply to the extent that any such Proprietary Information: Is in the public domain at the time of receipt.
Is received by the Party receiving such Proprietary Information from a third party having a right to disclose the same.
Company remains free to provide similar services to other Customers. As part of the Services, Company may develop new technology and/or improve existing Company technology. Ownership of all such technology and all associated intellectual property rights, including without limitation patents, copyrights, trade secrets, and know-how, shall automatically vest in and remain the exclusive property of Company.
Except in connection with commercial Company software, the licensing and use of which must be governed under separate terms and conditions, Company hereby grants to Customer a non-exclusive, non-transferable, royalty-free, worldwide, perpetual license to use, copy and/or modify any Services for Customer’s internal operations only.
Company shall defend at its sole expense legal proceedings brought against Customer or Company claiming a direct patent or copyright infringement in the country where the Services are delivered that is based upon any method, material or equipment (excluding any such method, material or equipment provided by Customer to Company) used or provided by Company in performance of the Services, and Company shall indemnify and hold Customer harmless from and against any judgment by a court of competent jurisdiction for damages arising from any such claim, provided that Company shall have no liability or obligation to Customer under these Terms concerning any infringement claim: (a) to the extent it is based upon Company’s compliance with Customer’s specifications; (b) unless Company is notified promptly in writing by Customer of each notice and communication regarding such claim and is given the complete authority, information and assistance necessary for such defense; (c) unless Company is given sole control of the defense of any action on such claim and of all negotiations for its settlement or com- promise; and/or (d) if Customer makes any admission regarding infringement.
Customer represents and warrants that any and all data, information, documents, materials, supplies and equipment provided by it to Company, or any method, process or technique which Customer requires Company to use, is the rightful property of Customer and Customer has full right to supply such items to Company. Customer agrees to defend, indemnify and hold Company harmless from and against any damage, loss, cost and/or expense (including legal fees) resulting from a breach of this representation and warranty.
These Terms shall also apply in favor of: (a) any subsidiary or affiliate of Company providing the Services, (b) any supplier which designs, manufactures and/or supplies any equipment or products Company may use in connection with the performance of the Services, and (c) the contractors and subcontractors of Company and such suppliers.
Company may freely sub-contract any part of the Services to its selected sub-contractors. Both Parties shall have the right to assign freely the obligations or benefits hereunder to their parent or majority owned or controlled subsidiary companies or to majority owned or controlled subsidiary companies of their parent companies. Company may at any time obtain the assistance of its affiliated Group companies in the performance of the Services.
Customer shall not solicit the employment of any Company employee without written agreement with Company until not less than six (6) months has elapsed from the receipt of the final invoice for the Products and Services.
Neither Party shall be responsible for delays or failures in performance resulting from events or circumstances beyond the control of such Party. Such events shall include but not be limited to acts of God, strikes, lockouts, riots, terrorism, acts of war, epidemics, governmental acts or regulations, fires, communication line failures, power failures, and earthquakes. Force Majeure cannot be used to excuse or delay any payment obligation by Customer.
Customer shall not, without obtaining Company’s prior written approval, use any Company trade names, trade marks, service marks, Company names or other trade designations in any Customer press releases, advertising literature, or corporate information disclosures (including without limitation financial reports and government regulated information disclosures).
These Terms constitute the entire understanding between the Parties and supersede all other terms, whether express or implied by law. No modification of these Terms shall be of any force or effect unless in writing and signed by an authorized signatory. Failure to enforce any or all of these Terms in a particular instance or instances shall not constitute a waiver thereof or preclude subsequent enforcement thereof. All provisions in these Terms which by their nature extend beyond the term of the performance of the Services such as without limitation those concerning confidential information and intellectual property rights shall survive such term until fulfilled and will apply to both Party’s successors and assigns. If any part or parts of these Terms are held to be invalid, the remainder shall remain valid and enforceable. The Services agreement to which these Terms apply is made and entered into for the sole benefit of the Parties, and their permitted successors and assigns, and no third party shall be a direct or indirect legal beneficiary of, have any rights under or have any direct or indirect cause of action or claim in connection with the Services or the Services agreement.
This Agreement shall be governed by and construed and interpreted in accordance with the laws of Malta and the parties hereby submit to the jurisdiction of the Maltese courts.