1. Formatura d.o.o., a company
incorporated in the Republic of Serbia registration number 20877154, Tax
Identification No. 107814084 having its registered office at Dr. Agostina Neta
br 30/VII/71 Belgrade, Serbia (the "Provider"); and
2. "Customer" means
the person or entity identified as such in Schedule 1 (Hosted Services
1.1 Except to the extent expressly
provided otherwise, in this Agreement:
an account enabling a person to access and use the Hosted Services, including
both administrator accounts and user accounts];
this agreement including any Schedules, and any amendments to this Agreement
from time to time;
means any weekday other than a public holiday in Serbia;
means the hours of 09:00 to 17:00 on a Business Day;
the following amounts:
(a) [the amounts specified in Part 3 of
Schedule 1 (Hosted Services particulars);]
(b) [such amounts as may be agreed in
writing by the parties from time to time; and]
(c) amounts calculated by multiplying
the Provider's hourly charging rates by the time spent by the Provider's
personnel performing the Support Services, and which are not covered by regular
charges described in Part 3 of Schedule 1;
Information" means any information disclosed by the Customer to the
Provider during the Term of this Agreement (whether disclosed in writing,
orally or otherwise) that at the time of disclosure was marked as
"confidential" or should have been reasonably understood by the
Provider to be confidential;
means all data, works and materials: uploaded to or stored on the Platform by
the Customer; transmitted by the Platform at the instigation of the Customer;
supplied by the Customer to the Provider for uploading to, transmission by or
storage on the Platform; or generated by the Platform as a result of the use of
the Hosted Services by the Customer;
means the documentation for the Hosted Services produced by the Provider and
delivered or made available by the Provider to the Customer;
"Force Majeure Event"
means an event, or a series of related events, that is outside the reasonable
control of the party affected (including [failures of the internet or any
public telecommunications network, hacker attacks, denial of service attacks,
virus or other malicious software attacks or infections, power failures,
industrial disputes affecting any third party, changes to the law, disasters,
explosions, fires, floods, riots, terrorist attacks and wars]);
means eGO! Learning Management System, as specified in the Hosted
Services Specification, which will be made available by the Provider to the
Customer as a service via the internet in accordance with this Agreement;
"Hosted Services Defect"
means a defect, error or bug in the Platform having an adverse effect on the
appearance, operation, functionality or performance of the Hosted Services, but
excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the
(b) any use of the Platform or Hosted
Services contrary to the Documentation, whether by the Customer or by any person
authorised by the Customer;
(c) a failure of the Customer to
perform or observe any of its obligations in this Agreement; and/or
(d) an incompatibility between the
Platform or Hosted Services and any other system, network, application,
program, hardware or software not specified as compatible in the Hosted Services
Specification" means the specification for the Platform and Hosted
Services set out in Part 1 of Schedule 1 (Hosted Services particulars);
Rights" means all intellectual property rights wherever in the world,
whether registrable or unregistrable, registered or unregistered, including any
application or right of application for such rights (and these
"intellectual property rights" include copyright and related rights,
database rights, confidential information, trade secrets, know-how, business
names, trade names, trade marks, service marks, passing off rights, unfair
competition rights, patents, petty patents etc.);
means the general maintenance of the Platform and Hosted Services, and the
application of Updates and Upgrades;
the platform managed and used by the Provider to provide the Hosted Services,
including the application and database software for the Hosted Services, the
system and server software used to provide the Hosted Services, and the
computer hardware on which that application, database, system and server
software is installed;
any schedule attached to the main body of this Agreement;
any services that the Provider provides to the Customer, or has an obligation
to provide to the Customer, under this Agreement;
means support in relation to the use of, and the identification and resolution
of errors in, the Hosted Services, as described in Part 6 of Schedule 1;
"Supported Web Browser"
means the current release from time to time of Microsoft Internet Explorer,
Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that
the Provider agrees in writing shall be supported;
"Update" means a
hotfix, patch or minor version update to any Platform software; and
"Upgrade" means a
major version upgrade of any Platform software.
2.1 This document was created using a
template from SEQ Legal (http://www.seqlegal.com).
3.1 This Agreement shall come into force
upon signing of Schedule 1 by both Parties.
3.2 This Agreement shall continue in
force as noted in Schedule 1, subject to termination in accordance with Clause
4. Hosted Services
4.1 [The Provider shall ensure that the
Platform will generate an Account for the Customer and provide to the Customer
login details for that Account.
4.2 The Provider hereby grants to the
Customer a non-exclusive licence to use the Hosted Services by means of a
Supported Web Browser for the internal business purposes of the Customer during
4.3 The licence granted by the Provider
to the Customer under Clause 4.2 is subject to the following limitations:
the Hosted Services may only be
used by the officers, employees, agents and subcontractors of the Customer;
4.4 Except to the extent expressly
permitted in this Agreement or required by law on a non-excludable basis, the
licence granted by the Provider to the Customer under Clause 4.2 is subject to
the following prohibitions:
(a) the Customer must not sub-license
its right to access and use the Hosted Services;
(b) the Customer must not permit any
unauthorised person to access or use the Hosted Services;
(c) the Customer must not use the
Hosted Services to provide services to third parties;
(d) the Customer must not republish or
redistribute any content or material from the Hosted Services; and
(e) the Customer must not make any
alteration to the Platform, [except as permitted by the Documentation].
Customer shall use reasonable endeavours, including reasonable security
measures relating to administrator Account access details, to ensure that no
unauthorised person may gain access to the Hosted Services using an
4.6 The Provider shall use all reasonable
endeavours to maintain the availability of the Hosted Services to the Customer,
but does not guarantee 100% availability.
4.7 For the avoidance of doubt, downtime
caused directly or indirectly by any of the following shall not be considered a
breach of this Agreement:
(a) a Force Majeure Event;
(b) a fault or failure of the internet
or any public telecommunications network;
(c) a fault or failure of the
Customer's computer systems or networks;
(d) any breach by the Customer of this
(e) scheduled maintenance carried out
in accordance with this Agreement.
4.8 The Customer must not use the Hosted
Services in any way that causes, or may cause, damage to the Hosted Services or
Platform or impairment of the availability or accessibility of the Hosted
4.9 The Customer must not use the Hosted
(a) in any way that is unlawful,
illegal, fraudulent or harmful; or
(b) in connection with any unlawful,
illegal, fraudulent or harmful purpose or activity.
4.10 For the avoidance of doubt, the
Customer has no right to access the software code (including object code,
intermediate code and source code) of the Platform, either during or after the
4.11 The Provider may suspend the
provision of the Hosted Services if any amount due to be paid by the Customer
to the Provider under this Agreement is overdue, and the Provider has given to the
Customer at least 30 days' written notice, following the amount becoming
overdue, of its intention to suspend the Hosted Services on this basis.
5. Maintenance Services
5.1 The Provider shall provide the
Maintenance Services to the Customer [during the Term].
5.2 The Provider shall where practicable
give to the Customer at least 10 Business Days' prior written notice of
scheduled Maintenance Services that are likely to affect the availability of
the Hosted Services or are likely to have a material negative impact upon the
Hosted Services, without prejudice to the Provider's other notice obligations
under this main body of this Agreement.
5.3 The Provider shall give to the
Customer at least 10 Business Days' prior written notice of the application of
an Upgrade to the Platform.
5.4 The Provider shall give to the
Customer written notice of the application of any security Update to the
Platform and [at least 10 Business Days'] prior written notice of the
application of any non-security Update to the Platform.
5.5 The Provider shall provide the
Maintenance Services [with reasonable skill and care expected from a leading
service provider in the Provider's industry.
6. Support Services
6.1 The Provider shall provide the Support
Services to the Customer during the Term and as noted in Part 6 of Schedule 1.
7. Customer Data
7.1 The Customer hereby grants to the
Provider a non-exclusive licence to copy, reproduce, store, distribute,
publish, export, adapt, edit and translate the Customer Data to the extent
reasonably required for the performance of the Provider's obligations and the
exercise of the Provider's rights under this Agreement, together with the right
to sub-license these rights to its hosting, connectivity and telecommunications
service providers to the extent reasonably required for the performance of the
Provider's obligations and the exercise of the Provider's rights under the
7.2 The Customer warrants to the
Provider that the use of the Customer Data by the Provider in accordance with
this Agreement will not:
(a) breach the provisions of any law,
statute or regulation;
(b) infringe the Intellectual Property
Rights or other legal rights of any person; or
(c) give rise to any cause of action
against the Provider,
in each case in any jurisdiction
and under any applicable law.
7.3 The Provider shall keep Customer’s
Data archived on the Platform for at least 6 months after the termination of
this Agreement, in case the Customer should decide to reinstate the Agreement.
8. No assignment of Intellectual
8.1 Nothing in this Agreement shall
operate to assign or transfer any Intellectual Property Rights from the
Provider to the Customer, or from the Customer to the Provider.
9. Charges and Payments
9.1 The Customer shall pay to the
Provider the Services described in Part 1 of Schedule 1 according to the
pricing given in Part 3 of Schedule 1.
9.2 All amounts stated in or in relation
to this Agreement are, unless the context requires otherwise, stated exclusive
of any applicable value added taxes, which will be added to those amounts and
payable by the Customer to the Provider, if those taxes are applicable.
9.3 The Provider shall issue relevant
invoices to the Customer according to Part 3 of Schedule 1. The Customer is
obliged to pay the invoices as described in Part 4 of Schedule 1.
10. Provider's confidentiality
10.1 The Provider must:
(a) keep the Customer Confidential
Information strictly confidential;
(b) not disclose the Customer
Confidential Information to any person without the Customer's prior written
consent, and then only under conditions of confidentiality approved in writing
(c) use the same degree of care to protect
the confidentiality of the Customer Confidential Information as the Provider
uses to protect the Provider's own confidential information of a similar
nature, being at least a reasonable degree of care;
(d) act in good faith at all times in
relation to the Customer Confidential Information; and
10.2 Notwithstanding Clause 12.1, the
Provider may disclose the Customer Confidential Information to the Provider's officers,
employees, professional advisers, insurers, agents and subcontractors who have
a need to access the Customer Confidential Information for the performance of
their work and who are bound by a written agreement or professional obligation
to protect the confidentiality of the Customer Confidential Information.
10.3 This Clause 12 imposes no obligations
upon the Provider with respect to Customer Confidential Information that:
(a) is known to the Provider before
disclosure under this Agreement and is not subject to any other obligation of
(b) is or becomes publicly known
through no act or default of the Provider; or
(c) is obtained by the Provider from a
third party in circumstances where the Provider has no reason to believe that
there has been a breach of an obligation of confidentiality.
10.4 The restrictions in this Clause 12 do
not apply to the extent that any Customer Confidential Information is required
to be disclosed by any law or regulation, by any judicial or governmental order
or request, or pursuant to disclosure requirements relating to the listing of
the stock of the Provider on any recognised stock exchange.
10.5 The provisions of this Clause 12
shall continue in force for a period of 5 years following the termination of
this Agreement, at the end of which period they will cease to have effect.
11. Data protection
11.1 The Customer warrants to the
Provider that it has the legal right to disclose all Personal Data that it does
in fact disclose to the Provider under or in connection with this Agreement,
and that the processing of that Personal Data by the Provider in accordance
with this Agreement will not breach any applicable data protection or data
privacy laws (including the Data Protection Act 1998).
12.1 The Provider warrants to the
(a) the Provider has the legal right
and authority to enter into this Agreement and to perform its obligations under
(b) the Provider will comply with all
applicable legal and regulatory requirements applying to the exercise of the
Provider's rights and the fulfilment of the Provider's obligations under this
(c) the Provider has or has access to
all necessary know-how, expertise and experience to perform its obligations
under this Agreement.
12.2 The Provider warrants to the
(a) the Platform and Hosted Services will
conform in all material respects with the Hosted Services Specification;
(b) the Hosted Services will be free
from Hosted Services Defects;
(c) the application of Updates and
Upgrades to the Platform by the Provider will not introduce any Hosted Services
Defects into the Hosted Services;
(d) the Platform will be free from
viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious
software programs; and
(e) the Platform will incorporate
security features reflecting the requirements of good industry practice.
12.3 The Provider warrants to the
Customer that the Hosted Services, when used by the Customer in accordance with
this Agreement, will not infringe the Intellectual Property Rights of any
person in any jurisdiction and under any applicable law.
12.4 The Customer warrants to the
Provider that it has the legal right and authority to enter into this Agreement
and to perform its obligations under the Agreement.
12.5 All of the parties' warranties and
representations in respect of the subject matter of this Agreement are
expressly set out in this Agreement. To the maximum extent permitted by
applicable law, no other warranties or representations concerning the subject
matter of this Agreement will be implied into the Agreement or any related
13. Acknowledgements and warranty
13.1 The Customer acknowledges that
complex software is never wholly free from defects, errors and bugs; and
subject to the other provisions of this Agreement, the Provider gives no
warranty or representation that the Hosted Services will be wholly free from
defects, errors and bugs.
13.2 The Customer acknowledges that
complex software is never entirely free from security vulnerabilities; and
subject to the other provisions of this Agreement, the Provider gives no
warranty or representation that the Hosted Services will be entirely secure.
14. Limitations and exclusions of
14.1 Neither party shall be liable to the
other party in respect of any losses arising out of a Force Majeure Event.
16.4 The Provider shall not be liable to
the Customer in respect of any loss of profits or anticipated savings, any loss
of revenue or income, any loss of business, contracts or opportunities, any
special, indirect or consequential loss or damage
15. Force Majeure Event
15.1 If a Force Majeure Event gives rise
to a failure or delay in either party performing any obligation under this
Agreement (other than any obligation to make a payment)], that obligation will
be suspended for the duration of the Force Majeure Event.
15.2 A party that becomes aware of a
Force Majeure Event which gives rise to, or which is likely to give rise to,
any failure or delay in that party performing any obligation under this
(a) promptly notify the other; and
(b) inform the other of the period for
which it is estimated that such failure or delay will continue.
15.3 A party whose performance of its
obligations under this Agreement is affected by a Force Majeure Event must take
reasonable steps to mitigate the effects of the Force Majeure Event.
16.1 Either party may terminate this
Agreement by giving to the other party at least 30 days' written notice of
17. Effects of termination
17.1 The termination of this Agreement
shall not affect the accrued rights of either party.
17.2 Within 30 days following the
termination of this Agreement for any reason the Customer must pay to the
Provider any Charges in respect of Services provided to the Customer before the
termination of the Agreement without prejudice to the parties' other legal
18.1 Any notice from one party to the
other party under this Agreement must be given by one of the following methods:
(a) delivered personally or sent by
courier, in which case the notice shall be deemed to be received upon delivery;
(b) by email durring standard bussines
19.1 The Provider may subcontract any of
its obligations under this Agreement;
19.2 The Provider shall remain
responsible to the Customer for the performance of any subcontracted
19.3 Notwithstanding any other provision
of this Agreement, the Customer acknowledges and agrees that the Provider may
subcontract to any reputable third party hosting business the hosting of the
Platform and the provision of services in relation to the support and
maintenance of elements of the Platform.
20.1 This Agreement may not be varied
except by a written document signed by or on behalf of each of the parties.
20.2 Neither party may without the prior
written consent of the other party assign, transfer, charge, license or
otherwise deal in or dispose of any contractual rights or obligations under
20.3 This Agreement is made for the
benefit of the parties, and is not intended to benefit any third party or be
enforceable by any third party. The rights of the parties to terminate,
rescind, or agree any amendment, waiver, variation or settlement under or
relating to this Agreement are not subject to the consent of any third party.
20.4 This Agreement shall be governed by
and construed in accordance with laws and regulations of the Republic of Sebia.
20.5 The Commertial court in Belgrade,
Republic of Serbia shall have exclusive jurisdiction to adjudicate any dispute
arising under or in connection with this Agreement.
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