Platform User Agreement

Preamble

These terms and conditions (the “Platform User Agreement”) create a contract between you (the “Client,” “User” or “you”) and Vaultinum  (“Vaultinum”), a Swiss limited liability company identified by the number BID CHE-225.897.477, having its principal place of business at Route de Pré-Bois 29, 1215 MEYRIN – SWITZERLAND (collectively the “Parties” and individually the “Party”).  Please read the Platform User Agreement carefully. To confirm your understanding and acceptance of the Platform User Agreement, click “I accept.”

Access to the Vaultinum Platform (defined below) and use of the services, including content, data, analytics, reports, components, products, support, developments, implementations, and related materials, delivered to the Client, provided via the Vaultinum Platform or through another media, such as email or cloud services depending on the product or service (collectively, the “Services”) constitutes your consent to enter into and be legally bound by this Platform User Agreement, the documents referenced herein, Vaultinum’s posted rules and policies, and to make transactions electronically.

YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS PLATFORM USER AGREEMENT AND THAT YOUR AGREEMENT SHALL BE DEEMED RENEWED EACH TIME YOU ACCESS AND USE THE VAULTINUM PLATFORM AND SERVICES PROVIDED THERETHROUGH.  YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY, WHERE APPLICABLE, FOR SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL TRANSACTIONS YOU ENTER INTO ON THE VAULTINUM PLATFORM AND ALL USE OF THE SERVICES, INCLUDING NOTICES OF CANCELLATION, SERVICES, POLICIES, CONTRACTS, AND DATA.

In order to access and use the Vaultinum Platform and Services you may be required to have certain hardware, software and Internet access (fees may apply), which are your sole responsibility. Our Services’ performance may be affected by these factors.

Articles

Article 1. Purpose

The purpose of this Platform User Agreement is to define the general terms and conditions applicable to Vaultinum’s internet platform (the “Vaultinum Platform”) which permits the Client to access and, where applicable and at the Client’s option, use the Services. The platform includes vaultinum.com, and any other website operated by Vaultinum.

The Platform User Agreement, the Terms of Use specific to the Service ordered, the possible purchase order(s) referring to it as well as the purchase terms negotiated between the Parties (the "Purchase Terms") constitute the entirety of the commitments existing between the Parties (the “Agreement”).

The Agreement is made up of the following contractual documents presented in order of decreasing legal precedence:

  • the purchase order(s) and its Purchase Terms, if any;
  • the Terms of Use specific to each Service;
  • the present Platform User Agreement. 

If any inconsistency is found among one or more provisions in any of these documents, the document of higher precedence shall prevail.

The Platform User Agreement can only be modified by the provisions of the Purchase Terms negotiated between the Parties. 

Article 2. Payment Terms

Access to the Vaultinum Platform itself is free. However, Vaultinum may charge a fee for Services accessed through the Vaultinum Platform (the “Fee”), and Client shall at its sole discretion decide whether to subscribe to any Services. If Client subscribes to any Services for which a fee is charged, Client agrees to pay all such fees and all taxes related thereto.

Vaultinum reserves the right to increase the Fees by up to three (3) percent annually.

All Fees are non-refundable. All charges for Services are net of applicable taxes, including sales, licenses, any applicable withholding taxes, and bank charges. Should any taxes be withheld, the Fees will automatically be increased so that the amount effectively paid is the exact amount as stated on the invoice.

Article 3. Vaultinum Platform Availability and Security

Vaultinum will use reasonable efforts to provide 24-hour availability of the Vaultinum Platform.  However, Vaultinum makes no representation or warranty that the Services will be available on a 24-hour basis.  The parties acknowledge that the Vaultinum Platform and Services will, at times, be unavailable due to regularly scheduled maintenance, service upgrades or other mechanical or electronic failures.  Vaultinum reserves the right to change or discontinue the Platform and Services in its sole discretion without notice, liability or refund. 

Vaultinum will use its best efforts to make the Vaultinum Platform secure from unauthorized access. The Vaultinum Platform will require industry standard 128 bit encryption on all communications between the User's end user device and the solution server. The Vaultinum Platform server operating system and applications software will be updated and virus-scanned regularly. However, the Parties recognize that no completely secure system or electronic data storage transfer has yet been devised. Vaultinum makes no warranty, express or implied, regarding the efficacy or the security of the Vaultinum Platform and shall never be liable for any claimed direct, actual, indirect, incidental or consequential damages arising from any breach or alleged breach of security of the Vaultinum Platform.

Article 4. Vaultinum Platform Content Availability

Vaultinum reserves the right to change or discontinue the Vaultinum Platform and Services including Data (defined below), in its sole discretion without notice, liability or refund.

Article 5. Use of Vaultinum Platform, Services and Content

You are granted a nonexclusive, nontransferable, revocable, limited license to access and use the Vaultinum Platform and Services solely as provided in this Agreement. Any other use of the Vaultinum Platform or Services is a violation of this Agreement and may constitute one or more instances of copyright infringement. Vaultinum reserves the right to modify this Agreement at any time. Your use of the Vaultinum Platform and Services may be controlled and monitored by Vaultinum for compliance purposes, and Vaultinum reserves the right to enforce this Agreement without notice to you.  You acknowledge that, because some aspects of the Vaultinum Platform and Services entail the ongoing involvement of Vaultinum, if Vaultinum changes any part of or discontinues the Vaultinum Platform, which Vaultinum may do at its election, you may not be able to use the Vaultinum Platform and Services to the same extent as prior to such change or discontinuation, and that Vaultinum shall have no liability to you in such case.

Article 6. Third Party Content and User Content

Certain content and services available via the Vaultinum Platform and Services may include services, content, data, and applications from third parties (the “Data”). Vaultinum may also provide links to third-party websites as a convenience to you. You agree that Vaultinum is not responsible for the content or accuracy of Data or any services provided by third parties, and Vaultinum does not warrant and will not have any liability or responsibility for any Data including for any materials, data, content, products, or services of third parties. You agree that you will not use any Data in a manner that would infringe or violate the rights of any other party and that Vaultinum is not in any way responsible for any such use by you.

The use of Services on the Vaultinum Platform will involve your inputting, uploading, modifying or otherwise making available data, documents, files, comments and other materials (“User Content”).  You are solely responsible for your User Content.  Without limiting the foregoing, you will ensure that:

  1. The provision of your User Content on the Vaultinum Platform has been approved by an authorized officer at your organization and by the owners of such content;
  2. Your User Content, does not contain any content that could be reasonably viewed as false, offensive, indecent, defamatory, libelous, harassing, threatening or otherwise harmful;
  3. Your User Content, and the provision of it by you on the Vaultinum Platform, does not violate any laws, rules, regulations or professional standards that are applicable to you or the organization that you represent, including any third-party privacy right, or third-party copyright, trademark or other intellectual property right.

You grant Vaultinum the non-exclusive and royalty-free right, on a world-wide basis, to host, store in cache-mode, process, reproduce, and display the User Content for the purposes of providing the Services and you warrant and represent that you have all the rights and authorizations that are necessary to use the User Content for purposes of the Service, and that you can freely grant the above license rights. 

For the avoidance of doubt, you acknowledge that the business of Vaultinum involves the aggregation and re-use of data and statistics including for benchmarking purposes.You acknowledge that Vaultinum is entitled to use aggregated data and statistical results for its own purposes and for the provision of services to other parties provided that such data and results do not identify and are not referable back to you.Upon creation, Vaultinum will be the owner of such aggregated and/or anonymized data and may copy, commingle, and use such data, in Vaultinum’s sole discretion, for any lawful purpose. Vaultinum may also (i) compile statistical and other information related to the performance, operation and use of the Vaultinum Platform or Services, and (ii) use and share data from the Vaultinum Platform or Services, in aggregated form to create statistical analysis and for research and development purposes (hereafter “Product Analyses”). Vaultinum retains all intellectual property rights in Product Analyses.

Article 7. Restrictions on Use

Violations of this Agreement or of our system or network security may result in the permanent revocation of your right to access the Vaultinum Platform and/or Services, and civil or criminal liability.  Except as otherwise expressly permitted:

  1. You shall be authorized to use the Vaultinum Platform and Services for internal business use only.
  2. You shall not use any system, device or program to (A) acquire, copy or monitor any portion of the Vaultinum Platform, Services, Data or any content thereof, or (B) interfere or attempt to interfere with or disrupt the Vaultinum Platform, Services or Data.
  3. You shall not attempt to gain unauthorized access to the Vaultinum Platform, Services or Data or any Accounts related thereto.
  4. You shall not test, probe the vulnerability of, or attempt to trace or obtain any information on other users, data or information transmitted through the Vaultinum Platform.
  5. You shall not use the Vaultinum Platform for any unlawful or prohibited purpose.
  6. Posting or transmitting any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law is prohibited.
  7. You shall not, directly or indirectly, make any misrepresentation while accessing or using the Vaultinum Platform.
  8. You shall not, and shall not encourage or assist another to, violate, circumvent, reverse-engineer, decompile, disassemble, or otherwise tamper with any of the Vaultinum Platform, Services or Data for any reason.
  9. You shall not access the Services by any means other than through the Vaultinum Platform.
  10. You shall not access or attempt to access an Account that you are not authorized to access.
  11. You shall not modify the Vaultinum Platform in any manner or form, or use modified versions of the Vaultinum Platform for any purpose, including obtaining unauthorized access to the Services.
  12. You shall not modify, rent, lease, loan, sell, distribute, or create derivative works based on the Vaultinum Platform and Services in any manner, and you shall not exploit the Vaultinum Platform and Services in any unauthorized way whatsoever, including, but not limited to, by trespass or burdening network capacity.
  13. You shall not use the Vaultinum Platform to damage, disable, or overburden Vaultinum's servers or network or impair the Vaultinum Platform or interfere with any other party's use of the Vaultinum Platform.

Article 8. Personal Data

Vaultinum undertakes to respect and to ensure respect for all persons under its control, all the legal and regulatory provisions relating to the protection of personal data and in particular the provisions of the general data protection regulation (EU) no. 2016/679 of April 27, 2016.

In the context of the use of Vaultinum platform and the provision of Services, Vaultinum undertakes to collect and process personal data concerning its Clients in accordance with the Privacy Policy available by clicking on the following link: https://vaultinum.com/legal-notice.

In accordance with the Privacy Policy, the Client acknowledges that it can exercise its right of access, rectification, opposition, its right to erasure of data, to limitation of processing and to data portability, at any time, by sending an email to the following address: dpo@vaultinum.com. The Client undertakes to inform its employees and managers of the procedures for exercising these rights.

Article 9. Intellectual Property

You agree that the Vaultinum Platform and Services, including but not limited to Data and the scripts and software used to implement the Vaultinum Platform and Services, contain proprietary information and material that is owned by Vaultinum and/or its licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright, trademark, patent, and other laws of Switzerland, other countries and international treaties. You agree that you will not use such proprietary information or materials in any way whatsoever except for use of the Vaultinum Platform and Services in compliance with this Agreement and any agreement that you may enter to access and use Data. No portion of the Vaultinum Platform or Services may be reproduced in any form or by any means, except as expressly permitted in this Agreement. Notwithstanding any other provision of this Agreement, Vaultinum, its licensors and third-party owners of Data reserve the right to change, suspend, remove, or disable access to the Vaultinum Platform, the Services and/or Vaultinum content, or other materials comprising a part of the Vaultinum Platform or Services at any time without notice. In no event will Vaultinum be liable for making these changes. Vaultinum may also impose limits on the use of or access to certain features or portions of the Services, in any case without notice or liability.  All copyrights in and to the Vaultinum Platform and Services (including the compilation of content, postings, links to other Internet resources, and descriptions of those resources) and related software are owned by Vaultinum and/or its licensors and Data owners, who reserve all their rights in law and equity. THE USE OF THE VAULTINUM PLATFORM OR ANY PART OF THE SERVICES, EXCEPT FOR USE AS PERMITTED IN THIS AGREEMENT AND IN AGREEMENTS FOR DATA, IS STRICTLY PROHIBITED AND INFRINGES ON THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES.  Trademarks, service marks, graphics, and logos used in connection with the Vaultinum Platform and Services are trademarks or registered trademarks of Vaultinum and its licensors. Other trademarks, service marks, graphics, and logos used in connection with the Services may be the trademarks of their respective owners. Except as otherwise expressly provided in an agreement, you are granted no right or license with respect to any of the aforesaid trademarks or any use of such trademarks.  If User provides Vaultinum feedback about the Services, then Vaultinum may use that information without obligation to User, and User irrevocably assigns to User all rights, title, and interest in that feedback.

Article 10. Supported Browser

The Vaultinum Platform is accessible using the most common internet browsers, except for old versions of such browsers.  Should your browser not be supported, Vaultinum shall advise you and indicate alternatives.  Vaultinum has no obligation to support any particular browser or any particular browser version.

Article 11. Login Account

11.1. Creation and Security

Before you can access the Vaultinum Platform you will need to create an account with Vaultinum (“Account”).  Vaultinum will set up individual login accounts (“Client Users”) for those who request access to the Vaultinum Platform. An email shall be sent to Client enabling it to create a Client password.  You will be required to agree to the terms and conditions of this Agreement when setting up your Account.  You may not create your password or set up your Account if you do not agree to these terms and conditions.

In order to maintain security, Client agrees to designate a single individual (if a business, must be owner or officer of Client) as the authorized person to contact Vaultinum to request employee (“user”) logins. Client shall be responsible for Accounts including login accounts and for the actions and omissions of any and all of its users on the Vaultinum Platform.  All logins will be transmitted by email to users. Additional user requests must be in writing from the initial designee.

11.2. Termination of Login Account

Client agrees to immediately notify Vaultinum's Platform administrator via email at support@Vaultinum.com when an individual login account is to be terminated. Vaultinum will make every effort to terminate access immediately. However, Client cannot be assured that access has been terminated until they receive an email confirmation of termination.

Article 12. Disclaimer of Warranties; Limitation of Liability

VAULTINUM DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE VAULTINUM PLATFORM AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME VAULTINUM MAY REMOVE ANY OR ALL SERVICES FOR INDEFINITE PERIODS OF TIME, OR CANCEL THE VAULTINUM PLATFORM AND SERVICES OR ANY PART THEREOF AT ANY TIME, WITHOUT NOTICE TO YOU.

YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE VAULTINUM PLATFORM AND SERVICES, INCLUDING DATA IS AT YOUR SOLE RISK. THE VAULTINUM PLATFORM AND SERVICES AND ALL PRODUCTS AND DATA DELIVERED TO YOU OR ACCESSED BY YOU THROUGH THE VAULTINUM PLATFORM AND SERVICES ARE (EXCEPT AS EXPRESSLY STATED OTHERWISE BY VAULTINUM) PROVIDED "AS IS" AND "AS AVAILABLE" FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.  CLIENT ACKNOWLEDGES THAT VAULTINUM OBTAINS RAW DATA FROM A VARIETY OF THIRD PARTIES AND THAT SUCH THIRD PARTIES MAKE NO REPRESENTATIONS AND WARRANTIES IN RELATION TO THE ACCURACY OR COMPLETENESS, OR AVAILABILITY OF SUCH DATA. VAULTINUM DOES NOT WARRANT THAT THE DATA IT OBTAINS FROM THIRD PARTIES IS ACCURATE AND COMPLETE OR THAT SUCH THIRD PARTIES WILL CONTINUE TO PROVIDE DATA TO VAULTINUM. 

IN NO CASE SHALL VAULTINUM, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE VAULTINUM PLATFORM OR SERVICES OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO THE VAULTINUM PLATFORM OR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF, OR INABILITY TO USE, ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE VAULTINUM PLATFORM OR SERVICES, EVEN IF ADVISED OF THEIR POSSIBILITY. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, VAULTINUM'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

YOU AND VAULTINUM AGREE THAT, UNLESS PROHIBITED BY LAW, ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE ARISING HEREUNDER WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND THAT YOU WILL NOT SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, A COLLECTIVE ACTION, A PRIVATE ATTORNEY-GENERAL ACTION, OR IN ANY PROCEEDING IN WHICH YOU ACT OR PROPOSE TO ACT IN A REPRESENTATIVE CAPACITY. YOU FURTHER AGREE THAT, UNLESS PROHIBITED BY LAW, NO PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF VAULTINUM AND ALL PARTIES TO ANY SUCH PROCEEDING.

VAULTINUM SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE VAULTINUM PLATFORM AND SERVICES, BUT YOU AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND VAULTINUM HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY, UNLESS PROHIBITED BY LAW.

VAULTINUM DOES NOT REPRESENT OR GUARANTEE THAT THE VAULTINUM PLATFORM OR SERVICES WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND VAULTINUM DISCLAIMS ALL LIABILITY RELATING THERETO. YOU SHALL BE RESPONSIBLE FOR BACKING UP YOUR OWN SYSTEM, INCLUDING ANY CONTENT, DATA OR INFORMATION ACCESSED OR OBTAINED USING THE VAULTINUM PLATFORM AND SERVICES.

Article 13. Waiver and Indemnity

BY USING THE VAULTINUM PLATFORM AND SERVICES, YOU AGREE, TO THE EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD VAULTINUM, ITS PRESENT AND FUTURE DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR BREACH OF THIS AGREEMENT, YOUR ACCESS OR USE OF THE VAULTINUM PLATFORM, DATA AND/OR SERVICES, AND ANY ACTION TAKEN BY VAULTINUM AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS MEANS THAT YOU CANNOT SUE OR RECOVER ANY DAMAGES FROM VAULTINUM OR ITS PRESENT OR FUTURE DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, OR LICENSORS AS A RESULT OF ITS DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, TO SUSPEND OR TERMINATE YOUR ACCESS TO THE VAULTINUM PLATFORM, DATA, AND/OR SERVICES, OR TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF VAULTINUM'S CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THIS AGREEMENT.

Article 14. Dispute Resolution

This Agreement shall be construed and enforced exclusively in accordance with the internal law of Geneva, Switzerland without giving effect to its principles of conflicts of law. Except for disputes solely relating to the failure to pay Fees by Client, any dispute, controversy or claim arising out of or in relation to this contract, including the validity, invalidity, breach or termination thereof, shall be resolved by arbitration in accordance with the Swiss Rules of International Arbitration (“Rules”) of the Swiss Chambers' Arbitration Institution in force on the date on which the Notice of Arbitration is submitted in accordance with these Rules. The number of arbitrators shall be one. The seat of the arbitration shall be Geneva. The arbitral proceedings shall be conducted in English. Within 15 days from receipt of the Notice of Arbitration, the Respondent shall submit to the Secretariat an Answer to the Notice of Arbitration together, in principle, with any counterclaim or set-off defense. The time-limit with respect to the designation of an arbitrator shall be 15 days. If the circumstances so justify, the Court may extend or shorten the above time-limits. The Expedited Procedure shall apply and the dispute shall be decided on the basis of documentary evidence only.

Notwithstanding the above, the Parties may agree at any time to submit the dispute to mediation in accordance with the Swiss Rules of Commercial Mediation of the Swiss Chambers' Arbitration Institution. Vaultinum shall also have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against you in the event that, in the opinion of Vaultinum, such action is necessary or desirable.  The 1980 United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed.

Article 15. Term and Termination

This Agreement and Services may be terminated by either Vaultinum or Client with or without cause and with or without notice at any time; however, the warranty disclaimer and limitation on liability in Articles 12 and 13 and the dispute resolution provision in Article 14 shall survive any termination. If you fail, or Vaultinum suspects that you have failed, to comply with any of the provisions of this Agreement, Vaultinum, at its sole discretion, without notice to you may: (i) terminate this Agreement and/or your Account, and you will remain liable for all amounts due under your Account up to and including the date of termination, and/or (ii) preclude access to the Vaultinum Platform and Services (or any part thereof).

Unless otherwise specified in writing, services are subscribed to for one (1) year from date of the invoice for the service and are automatically renewed for an equivalent period of time unless terminated by the Client or Vaultinum, such termination being notified via e-mail,  return-receipt requested and acknowledgment of receipt obtained, at least ninety (90) calendar days before the expiration of the current period.

Article 16. Unilateral Rights

Vaultinum reserves the right to modify, suspend, or discontinue the Vaultinum Platform and Services (or any part or content thereof) at any time with or without notice to you, and Vaultinum will not be liable to you or to any third party should it exercise such rights.

Article 17. Confidentiality

By virtue of this Agreement, the Parties may have access to information that is confidential to the other. Neither party shall use or disclose any Confidential Information (defined below) of the other party for any purpose outside the scope of this Agreement, except with the other party's prior written consent. Each party shall protect the other party's Confidential Information in a manner similar to its own Confidential Information of like nature (but in no event using less than reasonable care). In the event of an actual or threatened breach of a party's confidentiality obligations, the non-breaching party shall have the right, in addition to any other remedies available to it, to seek injunctive relief, it being specifically acknowledged by the breaching party that other remedies may be inadequate.

“Confidential Information” means all proprietary or confidential material or information disclosed orally or in writing by the disclosing party to the receiving party, that is designated as proprietary or confidential or that reasonably should be understood to be proprietary or confidential given the nature of the information and the circumstances of the disclosure, provided that Confidential Information shall not include any information or material that: (i) was or becomes generally known to the public without the receiving party's breach of any obligation owed to the disclosing party, (ii) was or subsequently is independently developed by the receiving party without reference to Confidential Information of the disclosing party, (iii) was or subsequently is received from a third party who obtained and disclosed such Confidential Information without breach of any obligation owed to the disclosing party, or (iv) is required by law to be disclosed (in which case the receiving party shall give the disclosing party reasonable prior notice of such compelled disclosure and reasonable assistance, at disclosing party's expense, should disclosing party wish to contest the disclosure or seek a protective order).

Article 18. Trademarks/Publicity

Unless otherwise requested in writing prior to the creation of an Account, the Client hereby grants Vaultinum the right to list Client’s trademarks, service marks and trade names or to otherwise refer to Client in any marketing, promotional or advertising materials or activities in connection to the Services.  Vaultinum shall be able to issue a press release on the fact that it is providing Services to Client.

Article 19. General Provisions

19.1. Force Majeure

Neither party shall be liable, nor shall any credit allowance or other remedy be extended, for any performance that is prevented or hindered due to a force majeure event, including acts of god, government, terrorism and other conditions beyond the reasonable control of the applicable party; provided that lack of funds shall not excuse Client’s obligation to pay all Fees when due.

19.2. Waiver

The fact that one of the Parties has not required the application of any provision of this Agreement, whether permanently or temporarily, shall in no way be considered as a waiver of the rights of that Party arising from the said provision.

19.3. Modification

Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by Vaultinum.

19.4. Assignment and Transfer

Client may not assign or transfer this Agreement or any rights herein without the prior, written consent of Vaultinum.  Vaultinum may assign this Agreement to any direct or indirect subsidiaries, or to any other third party.

19.5. Headings

In the event of difficulties in the interpretation of any of the headings or subheadings placed at the beginning of a provision, with any one of the provisions, the headings shall be declared null and void.

19.6. Severability

If any portion of this Agreement is held invalid, the Parties agree that such invalidity shall not affect the validity of the remaining portions hereof, and the institution declaring the portion of this Agreement invalid shall be authorized to substitute for the invalid provision a valid provision that most closely approximates the economic effect and intent of the invalid provision.

19.7. Notifications

Any notice required to be given under this Agreement shall be in writing in French or English.

All notifications shall be delivered either by (i) personal delivery, (ii) sent by certified mail with acknowledgement of receipt, (iii) sent via nationally-recognized private express courier, or (iv) by fax or email with acknowledgement of receipt to the address and attention of the addressee indicated above or to any other address communicated for this purpose by each of the Parties in Article 19.8.

Notices shall be deemed to have been received on the date of receipt if delivered personally or via fax/email, or two (2) days after deposit via certified mail or express courier.  Either party may change its address for purposes hereof by written notice to the other in accordance with the provision of this section.

19.8. Address for Service

The addresses for the Parties shall be for Client the address provided in the Account or any registered address and for Vaultinum as indicated above.

19.9. Entire Agreement

This Agreement sets forth the entire obligations of the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous negotiations, proposals and communications between the Parties with respect thereto.  No statement or representation that is not incorporated herein has been relied upon by a party in agreeing to enter into this Agreement.  Any provisions, terms or conditions of Client's purchase order(s) or other documents which are, in any way, inconsistent with or in addition to, the terms and conditions herein, shall not be binding upon Vaultinum and shall have no applicability hereunder.  Vaultinum and Client expressly agree that there shall be no third-party beneficiaries to this Agreement.

I. DEPOSIT & ESCROW SERVICES TERMS OF USE

Background

Vaultinum is a company specializing in the protection of digital creations and intangible assets such as software, mobile applications, video games, databases, websites, trade secrets, construction plans, confidential information, etc.

Vaultinum, as a trusted third party, offers a deposit service to meet the needs for simple and rapid protection of any type of digital creation and provides its clients with the means to build, manage and enhance their portfolio of intangible assets.

Vaultinum also offers escrow services to secure the relationship between the supplier of a digital creation and its client, allowing the latter to access the creation deposited with Vaultinum in case of, for example, default of the supplier, in order to continue its exploitation.

These terms of use include and are in addition to Vaultinum’s Platform User Agreement.  If any inconsistency is found among the terms and conditions, these Deposit and Escrow Services Terms of Use shall have precedence.

1. Definitions

Unless otherwise indicated herein, all capitalized words will have the meaning given to them in the Platform User Agreement.  The following terms, whether used in the singular or plural, will have the following definition:

Beneficiary” means any natural person or legal entity benefiting, within the framework of a contractual agreement, from a right of access to the Deposited Elements under the conditions provided in Section 4.

"Deposit" means the registration and archiving of the Digital Creation with Vaultinum allowing the recording of the content of a Digital Creation and the attribution of a certain date to this creation.

Deposited Elements” means a set of files making up the content of a Deposit.

Digital Creation” means any digital work, whether or not it is protected by intellectual property law, including software, database, construction plans, website, video game and/or any element attesting to the development and production of the digital work, to be deposited.

Escrow” means the contractual means by which a Beneficiary is granted access to the Deposited Elements by a Supplier, under the conditions provided by the parties to this agreement and in accordance with Section 4.

IDDN Certificate” means the certificate provided by Vaultinum attesting to the Deposit of a given Digital Creation or of each of its successive versions and the listing thereof on the IDDN register.

IDDN Number” means the unique registration number assigned to each Deposit with Vaultinum.  The IDDN identifies the organization with which the creation is registered, the number of updates, the type of registration, and the year of the first Deposit. All deposits of the same IDDN parentage (initial deposit and update deposit(s)) share a root IDDN Number.

Supplier” means any individual or legal entity that creates an Account on the Vaultinum Platform and grants to one or more Beneficiaries a right of access to certain Deposited Elements within the framework of a contractual agreement.

2. Scope of Application

Any individual or legal entity that creates an Account on the Vaultinum Platform, whether on their on behalf or on behalf of a Client, and uses the Deposit and/or Escrow Services, is subject to these specific terms of use.

At the time of each deposit request, the natural or legal entity who deposits on their own behalf or on behalf of a Client certifies that the Digital Creation is deposited on the Account of the owner of the intellectual property rights in the Deposited Elements on the date of said deposit request or certifies that they have obtained the prior authorization of the intellectual property rights holder.

3. DEPOSIT SERVICES

3.1. Types of Deposit

Vaultinum, as a trusted third-party receiver, registers each Digital Creation submitted to it and gives it a certain date and an IDDN Number.

Vaultinum offers three types of Deposits:

  1. 1.Standard Digital Deposit: The digital Deposit is limited to 10 GB and 1000 files per deposit. The entire procedure is carried out online and the Deposit is electronically sealed and archived.

    At the end of the procedure, the Client can download the IDDN Certificate directly from its Account.
  2. 2.Element Checked Deposit: While guaranteeing the non-alteration of the Deposited Elements, this advanced procedure certifies that the media provided in the Deposit contains readable data, presented in the form of a clear tree view, and exploitable by the Beneficiary in the case of an Escrow.  The Element Checked Deposit includes:
  • Verification by a Vaultinum agent of the Deposited Elements contained in the files;
  • Verification of the files and tree structure provided by the Client;
  • Calculation of the electronic footprint (HASH) of each file;
  • Registration of the Deposit with Vaultinum;
  • Sealing of the Deposit;
  • Secure archiving of the Deposit in Switzerland;
  • Delivery of a special Element Checked Deposit Report attesting to the verification (the Report is also annexed to the Deposit).

    At the end of the Element Checked Deposit procedure, the Client receives an IDDN Certificate and an Element Checked Deposit report describing the Deposited Elements and attesting to their verification.
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    3.Content Checked Deposit: This Deposit is specific to software and represents a higher level of verification of Deposited Elements. Vaultinum offers three levels of Content Checked Deposits: Silver, Gold & Platinum. Depending on the option chosen, Vaultinum undertakes to implement a number of checks that can include verification that (1) the Digital Creation deposited with it corresponds to the specifications provided by the Beneficiary and (2) it functions in accordance with such specifications, or (3) for software provided in SAAS mode, that the escrow process will in effect be useful to Beneficiary and provide an opinion to the Beneficiary to that effect if required.
     
    At the end of the Content Checked Deposit procedure, the Client receives an IDDN Certificate and a Content Checked Deposit report describing the findings of the review of the contents deposited and attesting to their verification.

3.2. Archiving of Deposits

Data uploaded via the Vaultinum Platform is archived and secured electronically by Vaultinum.  Data is hosted on Swiss territory in compliance with the ISO 27001 standard.

Deposits are retained by Vaultinum as long as the Client pays the Fees due to Vaultinum.

3.3. Method of Deposits

Vaultinum offers two ways to make deposits:

  • Digital Deposits made by the Client: Client electronically uploads their Deposited Elements via their Account or by contacting Vaultinum for an Element Checked Deposit or Content Checked Deposit;
  •  SCM automated Deposit: If this option is chosen, Client hereby authorizes Vaultinum to make automatic deposits by connecting to the hosted repository of the source code.  Client undertakes to provide to Vaultinum all necessary access codes and authorizations.  Client hereby grants the necessary powers to Vaultinum to implement this for Client and Client shall defend and hold Vaultinum harmless against any claims, proceedings or investigations in relation to such service or Deposits.  Vaultinum shall use the right to connect to the hosted repository for the sole purpose of making Deposits of the Deposited Elements.

3.4. Deposit Updates

Deposit Updates refers to the deposit of subsequent or successive versions of a Digital Creation.  The IDDN Number assigned at the time of the initial Deposit includes an encoding element, which increases with each updated Deposit of the same Digital Creation.  The Client can thus maintain a link between the Deposits of different versions of the same Digital Creation.

Depending on the option chosen by the Client, the Deposit of a new version of a Digital Creation shall:

  •  Not replace the previous Deposit(s) and Vaultinum shall keep a copy of all Deposits made as well as the corresponding Deposited Elements as long as the Client pays the Fees; or
  • Replace the previous Deposit, with Vaultinum keeping only the most recent Deposited Elements as long as the Client pays the Fees.

3.5. Duplication Procedure

Duplication is a procedure by which a Vaultinum agent makes a copy of a Digital Creation deposited with Vaultinum.

 Vaultinum can only duplicate a deposit:

  • upon request of the duly identified Client after payment of the duplication Fees;
  • upon request of a Beneficiary after a favorable opinion of the Access Commission of Vaultinum and payment of duplication Fees;
  • by court order.

 The duplication procedure involves:

  • creating a digital copy of the Deposit on a physical medium;
  • calculating hash value of the copied data and checking conformity with the original hash value;
  • delivery of the physical copy to the Client.

3.6. Transfer of Rights

The Client undertakes to promptly declare to Vaultinum any change in the ownership of its rights in Deposited Elements (transfer or alienation, total or partial) occurring, for example, in the context of rights assignment or assets transfer.  Client shall cooperate with Vaultinum in transferring the rights and the payment of related fees unless the assignee agrees to pay for such.

The new rights owner may also notify Vaultinum of its acquisition of rights subject to the production of documents incontestably proving the transfer of rights.  Vaultinum will proceed with a legal investigation of any request for transfer of rights and shall, at its sole and absolute discretion, without regard to any standard of reasonableness or other standard by which the determination of Vaultinum might be challenged, decide as to whether to effect such transfer in its systems.  The beneficiary of such rights is a User for purposes of this Agreement.

The purpose of the transfer of rights is to allow the new rights holder to keep the Deposit history made by the previous intellectual property rights owner, update the transferred Digital Creation, receive IDDN Certificates established in its name and/or take over any concluded escrow agreements.

Depending on the nature and type of transfer, the transfer of rights procedure involves either:

  • the transfer of the Deposits to the Account of the new rights holder ; or
  • a replacement of the existing Account holder.

Vaultinum will assess each request on a case-by-case basis and will decide in its sole and absolute discretion, without regard to any standard of reasonableness or other standard by which the determination of Vaultinum might be challenged, which procedure to implement.

4. ESCROW SERVICES

A Beneficiary to Deposited Elements may request access to the Deposited Elements subject to a written agreement with the Client, provided that the Client has declared to Vaultinum the existence of such agreement and purchased the related Escrow service provided by Vaultinum.

All escrow agreements are subject to these Terms of Use, unless expressly stated otherwise, which prevail in the event of any inconsistency.

Vaultinum offers three types of Escrow services: 

  • Access clause;
  • Bipartite escrow agreement;
  • Tripartite escrow agreement (including through framework contracts).

If the Client has not purchased an Escrow service proposed by Vaultinum or has ceased to pay the Fees due to Vaultinum, except in a particular situation (e.g. bankruptcy of the Client), any request for access by a Beneficiary will be refused unless a court decision authorizes such access to the Deposited Elements and the relevant fees (including all annual fees and past fees due as if an escrow had been entered into originally) have been paid to Vaultinum.

4.1. Access Clause

An access clause is inserted into a two-party agreement (e.g. license agreement) between the Client and the Beneficiary.

To be effective, an access clause shall mention:

  • The name and IDDN Number of the Deposit concerned;
  • The fact that Vaultinum is the third party escrow agent;
  • The cases in which access to the Deposited Elements is possible.

 Upon purchase of this Escrow service, an access clause template will be made available to the Client. The Client shall be responsible for drafting the access clause and Vaultinum cannot guarantee its applicability.

The number of Beneficiaries and access clauses available under this Escrow service is unlimited on the condition that the Deposit is identical for all Beneficiaries.  Otherwise, additional Escrow services will have to be purchased where the Deposited Elements are different.

The Access clause service does not give the Beneficiary any right to information, even if the content of the access clause provides otherwise. It is the responsibility of the Client to inform the Beneficiary about the payment of fees relating to the service and any Deposit Updates.

The Access clause service is valid for one (1) year from the date of the invoice for the service.  It shall be automatically renewed for an equivalent period of time unless terminated by the Client or Vaultinum, such termination being notified via e-mail, return-receipt requested and acknowledgment of receipt obtained, at least ninety (90) calendar days before the expiration of the current period.

Only the Client may contractually grant access to the Deposited Elements. If a third party (e.g. a distributor/reseller, subsidiary company, etc.) wishes to provide access to the Deposited Elements, the third party or the Client must provide Vaultinum with a certificate indicating that the Client authorizes the third party to include an access clause in the contracts concluded with its own clients allowing access to the Deposited Elements. Otherwise, no access will be granted.

4.2. Bipartite Escrow Agreement

The bipartite escrow agreement is a two-party agreement concluded between the Client and the Beneficiary which stipulates the terms of the Deposit of a Digital Creation and access cases to the Deposited Elements. Vaultinum is not a signatory to this agreement.

To be effective, the bipartite escrow agreement shall mention:

  • Name and IDDN Number of the Deposit concerned;
  • Cases in which access to the Deposited Elements is possible;
  • Name, registered office and identification number (e.g. SIREN number) of the Client and the Beneficiary.

Upon purchase of this Escrow service, a bipartite escrow agreement template will be made available to the Client. The Client shall be responsible for drafting this agreement and Vaultinum cannot guarantee its applicability.

The number of Beneficiaries and bipartite escrow agreements available under this Escrow service is limited to five on the condition that the Deposit is identical for all Beneficiaries.  Otherwise, additional Escrow services will have to be purchased where the Deposited Elements are different.

The Client may provide the contact information of Beneficiaries to Vaultinum in order to give the Beneficiaries access to a Vaultinum “guest” account.  At the end of each Deposit, the Beneficiary may view and/or download the corresponding IDDN Certificate via the "guest" account.

The bipartite escrow agreement service is valid for one (1) year from the date of the invoice for the service.  It shall be tacitly renewed for an equivalent period of time unless terminated by the Client, such termination being notified via e-mail, return-receipt requested and acknowledgment of receipt obtained, at least ninety (90) calendar days before the expiration of the current period.

4.3. Tripartite Escrow Agreement

The tripartite escrow agreement is an agreement concluded between the Client, the Beneficiary and Vaultinum which stipulates the terms of the Deposit of the Digital Creation and access cases to the Deposited Elements.

In the context of an escrow agreement, it is recommended to make an Element Checked Deposit or a Content Checked Deposit.

The Client must provide Vaultinum with a finalized version of the tripartite escrow agreement before signing.

The Client may provide the contact information of Beneficiaries to Vaultinum in order to give the Beneficiaries access to a Vaultinum “guest” account. At the end of each Deposit, the Beneficiary may view and/or download the corresponding IDDN Certificate via the "guest" account.

The tripartite escrow agreement service is valid for one (1) year from the date of the invoice for the service.  It shall be automatically renewed for an equivalent period of time unless terminated by the Client or Vaultinum, such termination being notified via e-mail at least ninety (90) calendar days before the expiration of the current period unless otherwise provided in the escrow agreement.

Vaultinum offers an online Escrow Agreement and framework Escrow Agreement at the Client’s and Beneficiary’s option.

4.4. Procedure for Accessing Deposited Elements

Access to Deposited Elements shall be conducted in accordance with the procedure for accessing Deposited Elements, which is available upon request, and after the issuance of a decision, taken in the Access Commission’s sole and absolute discretion, from the Access Commission of Vaultinum.  Any contrary stipulation cannot be enforceable against Vaultinum.

In the event of a favorable decision from the Access Commission, the identical duplication of the Deposited Elements will be carried out by a Vaultinum agent from the last update of the Deposit, unless expressly requested by the Beneficiary to access a prior Deposit.

Duplication of the Deposited Elements may be given to the Beneficiary or to any person holding a mandate granted by the Beneficiary and expressly authorizing it to obtain said duplication.

5. Payment of Fees

The Fees related to Deposit and Escrow services are available online at vaultinum.com or upon request for an estimate.

Fees are paid by credit card or SEPA direct debit at the time of the order.  Fees are due in full, without discount, and are payable on the bank account whose contact details are indicated on the invoice.

If a purchase order is required for the payment of invoices issued by Vaultinum, it is up to the Client or its third-party payer to send this purchase order by email to contact@vaultinum.com.

In the event of rejection of a SEPA direct debit, a lump sum of thirty (30) euros will be applied as of right in compensation for the rejection costs borne by Vaultinum.

6. Return and Destruction of Deposits

6.1. During the contractual relationship

The Client may, at any time during the contractual relationship, request that Vaultinum return and/or destroy the Deposited Elements.

The return of the Deposited Elements means the definitive recovery by the Client of all or part of the Deposited Elements, provided that the export of this information is technically possible.

In the event of a request for restitution, the Parties undertake to cooperate actively in order to determine the modalities for implementing such restitution.

6.2. In case of non-payment of fees

In the absence of payment of all or part of the Fees owed to Vaultinum, the Client will have the opportunity to request the return of the Deposited Elements within thirty (30) days following a formal notice from Vaultinum that has gone unanswered. At the end of this period, Vaultinum will be allowed to destroy the Deposited Elements.

6.3. In the event of a termination request

The Client will have the opportunity to request the return or destruction of the Deposited Elements within thirty (30) days of the Client's request for termination.

In the absence of a request for the return or destruction of the Deposited Elements sent by the Client within the above-mentioned period, Vaultinum may proceed with their destruction.

7. Confidentiality

All information relating to Deposits made with Vaultinum is strictly confidential.

Only the Client or any person duly authorized by the Client and duly identified by Vaultinum is authorized to request and obtain information on Deposits except as provided in Section 4.

8. Liability

Vaultinum's services are governed by this Agreement, then in effect and as published on the website vaultinum.com at the time of the triggering event that may engage Vaultinum's responsibility, which the Client expressly acknowledges and irrevocably accepts.

Acting solely as a custodian, Vaultinum may not be held liable for the content, corrections, authenticity and validity of the Deposited Elements.

Vaultinum is not subject to any obligation other than those provided in this Agreement and, as appropriate, in an ad hoc agreement signed by Vaultinum (such as an escrow agreement).  Apart from the cases of death or bodily injuries caused by one of the Parties, of fraud or gross negligence, the full liability of Vaultinum or of one of its suppliers arising from its services may not under any circumstances exceed twenty-five thousand (25,000) euros in total.  Vaultinum may not be held liable for the following damage: interruption of business, loss of profits, loss of income, loss of personal information, loss of clients or the costs related to obtaining replacement goods and services of the Deposited Elements, whether or not Vaultinum has been informed of the eventuality or of the occurrence of such damage. The Parties agree that Section 8 herein provides for a sharing of the reasonable risks and constitutes a decisive clause without which it would not have been entered into by Vaultinum.

For SCM automated Deposit, the Client shall provide all access codes and authorizations to enable Vaultinum the right to connect to the hosted repository and shall be fully responsible for failure to do so or for the inability of Vaultinum to connect to the hosted repository.

For Element Checked Deposit and Content Checked Deposit, Vaultinum warrants the implementation of the process as described to the Client according to the information provided by the Client and its needs. Vaultinum will use its best commercial efforts to ensure that Deposited Elements verified by a Vaultinum agent are usable.

II. KYS SELF-ASSESSMENT TERMS OF USE

Background

The goal of the KYS suite of solutions is to help companies improve their operational structures whether they (i) wish to prepare for a sale of their business, (ii) are seeking investments, (iii) are seeking to capture new clients, or (iv) wish to improve on their internal controls and processes, limit risks and put in place structures that will foster smoother operations and facilitate growth.

Vaultinum has developed an auditing tool to enable companies to conduct their own due diligence in a number of areas including, security, intellectual property, and software management, which are evaluated by reference to good practices and other quality standards (the “KYS I Solution”, which includes the Services). 

These terms of use include and are in addition to Vaultinum’s Platform User Agreement.  If any inconsistency is found among the terms and conditions, the KYS Self-Assessment Terms of Use shall have precedence.

Unless otherwise indicated herein, all capitalized words will have the meaning given to them in the Platform User Agreement.

1. Assessed Company

Any business or entity which registers an account on the Vaultinum Platform, upon request by a Client or voluntarily, and uses the KYS I Solution to self-assess and/or become certified (the “Assessed Company”), are subject to these specific terms of use.

2. KYS Information and User Content

The content of the KYS I Solution surveys, evaluations, recommendations and information related to Vaultinum’s assessment methodology is considered Confidential Information of Vaultinum and User agrees not to copy, download, screen-print, publish, transmit, communicate any of the information accessed using the Services except for the Evaluation Report (defined below). 

The User Content provided to generate the Evaluation Report belongs to you.  You warrant and represent that it is your belief that the User Content is accurate, complete, and correct and that you have conducted reasonable investigations to confirm such.  You acknowledge and agree that the User Content will be available to Vaultinum staff and experts for the preparation and generation of the Evaluation Report.  Your User Content may also be accessed, in certain limited circumstances and for limited periods of time, for site administration, troubleshooting, system maintenance, emergencies, and other technical support by Vaultinum network personnel and contractors, each of whom will be subject to confidentiality obligations.

Notwithstanding that we will develop a general knowledge of your business in the course of other engagements, you will ensure that all the information/User Content that is necessary for the performance of the particular Services is given to Vaultinum directly.  In this context, it is agreed that Vaultinum shall not be treated as being on notice of (i) information provided to Vaultinum in the course of other engagements or the provision of other Services; or (ii) information posted on an internal or external website or other media.  Accordingly, all information that is relevant to the Services must be given directly in the context of a specific Service even if the same information has been given to Vaultinum previously in the course of a different service or other engagement or is available on a forum to which Vaultinum may have access.  Except as expressly set out otherwise in writing, Vaultinum will not audit or otherwise test or verify the information provided by or on behalf of Clients in the course of performing the Services.  You acknowledge and agree that Vaultinum shall be entitled to rely on all information/User Content provided, and decisions and approvals given, by or on behalf of you or the Client that you represent in connection with the Services and to assume that all such information/User Content provided to Vaultinum, from whatever source, is true, complete, and not misleading.  Vaultinum will not be responsible for the consequences of any information provided in the course of the Services for not being complete, accurate or current, or not being provided in a timely manner.  Notwithstanding the above, and although Vaultinum is under no obligation to verify the accuracy or completeness of your User Content, or to review the nature or content of your User Content, unless otherwise agreed in accordance with the KYS Self-Assessment Certified Service, Vaultinum may review and/or remove any portion of your User Content that Vaultinum believes has been provided in breach of these Terms, or appears inaccurate, incomplete, or outdated.

Where you are using third parties to provide information, materials or support in respect of the Services, or other suppliers and advisers are being employed whose work may affect our ability to carry out the Services, you will be responsible for the management of such persons and their performance, including the timeliness and quality of their input and work.

Where needed or requested by Vaultinum to assist Vaultinum in performing the Services, you will ensure that (i) within your organization, decisions are taken and management approvals are obtained promptly; (ii) Vaultinum is given full and prompt access to the people and premises of the Client and to other suppliers and advisers associated with the engagement, together with all necessary administrative support; (iii) any approvals, licenses and security clearances are obtained promptly (including any relating to third parties, Vaultinum personnel and any subcontractors); and (iv) Vaultinum is promptly provided with all information and documents that appear to you to be relevant to the Services and any other information or documents that Vaultinum may specifically request.

You agree that you remain solely responsible for managing all aspects of your business and for taking all decisions.  This includes (i) designating one or more individuals who possess suitable skill, knowledge, and/or experience to oversee the Services; (ii) evaluating the adequacy and results of the Services; and (iii) accepting responsibility for the results of the Services.  You or your third-party beneficiaries are solely responsible for deciding whether our Services, evaluations and certifications make sense in the context of your and/or their business, and whether to rely on, implement or act on any information contained in the Evaluation Report.

3. Evaluation Reports

Vaultinum shall provide a summary of the Assessed Company’s software assessment results (the “Evaluation Report”).  Evaluation reports can include (i) quantitative ratios; (ii) qualitative information on the Assessed company’s practices; and (iii) benchmarking of all Assessed companies’ performance.

The Evaluation Report is based on the disclosed information available at the time of the assessment.  Should any information or circumstances materially change during the period of the assessment, Vaultinum reserves the right to place the Evaluation Report on hold and, if appropriate, to re-assess and possibly issue a revised Evaluation Report.

Vaultinum does not warrant any results from the use of the KYS I Solution and Service.  The Evaluation Report is based on information/User Content provided by the Assessed Company.  As a result, Vaultinum cannot warrant or represent that the Evaluation Report is complete, accurate or correct.  Further, the evaluations provided in the Evaluation Report are based on Vaultinum’s experts own view of good practices and industry standards and may not reflect some specific industry standards or all standards and good practices.  Finally, the Evaluation Report, is based on a complex decision tree structure in which answers are assigned different evaluations and recommendations depending on the answers provided.  As a result, and although Vaultinum experts review the audit tool regularly, some questions, answers, evaluations and recommendations may contradict others, seem irrelevant or provide incomplete or inaccurate feedback.

The information, including the evaluations and recommendations provided in the Evaluation Reports are general and made available solely for informational purposes and do not constitute a professional consultation. In other words, if the KYS I Solution and the Services may be regarded as a general decision-making aid, Vaultinum accepts no liability for actions taken as a result of implementing recommendations and it cannot guarantee that implementing a recommendation will have the desired effect.  Assessed Companies should consult experts such as lawyers or engineers for professional advice.

KYS Certified.  In the context of KYS Certified services that you may subscribe to from time to time at your discretion, you will be requested to provide documents in support of your responses to Vaultinum’s questionnaires.  The Vaultinum team is under no obligation to, and will not, review the quality, format and completeness of such documents but will check that they exist and that their content purports to confirm the answer that you have provided.  If our team makes a finding that a document is irrelevant or does not appear to provide adequate support for the answer, provided we may, at our discretion, contact you for a review, request that you update the document or consider that the appropriate document was not provided.  Vaultinum shall make each determination for certification at its own discretion and you agree to follow the certification review process as outlined herein should you wish to contest or update a certification.

Third-Party Beneficiary.You may direct Vaultinum to send the Evaluation Reports and KYS Certificates as applicable, directly to third-party beneficiaries such as investors, lenders, potential acquirors, clients, etc.You agree to pay for any fees in relation to this.Third-party beneficiaries may also pay the fees in relation to the Services provided hereunder pursuant to our agreement to such.

4. Payment of Fees

Client can select between a one-time or subscription based use of the KYS I Solution.  Subscription Fees are due upon the initial request for the generation of an Evaluation Report and by selecting “Subscription.” A subscription allows for an unlimited number of non-certified Evaluation Reports for a period of one year from the date of registration. 

The payment of Fees for a one-time use of the KYS I Solution are due upon request for an Evaluation Report.  A one-time or “one shot” use of the KYS I Solution means the generation of one (1) Evaluation Report.  Upon the successful Fee transaction, the Evaluation Report will be provided to the Client via the KYS I Solution. 

III. KYS CODE AUDIT TERMS OF USE

Background

The goal of the KYS suite of solutions is to help companies improve their operational structures whether they (i) wish to prepare for a sale of their business, (ii) are seeking investments, (iii) are seeking to capture new clients, or (iv) wish to improve on their internal controls and processes, limit risks and put in place structures that will foster smoother operations and facilitate growth.

Vaultinum has developed an intelligent audit program aimed at helping companies analyze and understand the components of a software source-code (the “KYS II Solution”), which includes the Services.  The KYS II Solution offers an in-depth scanning of a software source code providing a detailed analysis of the software of a company or product related to Intellectual Property, maintainability, security and SWOT analysis. 

These terms of use include and are in addition to Vaultinum’s Platform User Agreement and hereby incorporate the terms and conditions of any Purchase Order (defined below).  If any inconsistency is found among the terms and conditions, these KYS Full Code Audit Terms of Use shall have precedence followed by the Platform User Agreement.

1. Definitions

Unless otherwise indicated herein, all capitalized words will have the meaning given to them in the Platform User Agreement.

Audit Report” means the results of the software source code scan and assessment provided by Vaultinum including the illustrations, comparative score card, statistical report and charts, SWOT analysis and recommendations.

Code Analyzer” means the crawling and scanning program that analyses the software source-code provided by the Client.

Code Audit” means the analysis of the results of the Code Analyzer or other related services provided by Vaultinum under this Agreement, as further described in the applicable PO.

Source-code Owner NDA” means an agreement between Vaultinum and a third-party that owns software code to be audited by Vaultinum on behalf of a Client, in substantially the form attached in Annex 1.

Purchase Order” or “PO” means an service order, in substantially the form and format set forth in Annex 2, describing the Purchase Terms and Services to be provided to Client pursuant to these terms and conditions.

2. KYS Code Audit

2.1. Confidentiality

For the purposes of the confidentiality obligations hereunder, the Confidential Information of the Client also includes the Audit Reports provided hereunder and the software source code (including the file layouts, screen layouts, data and database models and structures, comments and other related information) of the Client.  The content of the KYS II Solution and information related to the Code Analyzer and Code Audit methodology of Vaultinum is considered Confidential Information of Vaultinum.

2.2. Services

Vaultinum will perform the Services described in any fully executed PO in a professional, good and workmanlike manner consistent with industry standards.  Each fully executed PO will be governed by these terms and conditions and will be automatically incorporated in the Agreement as of the effective date of the PO.  If Vaultinum is asked to perform an audit of software owned by a third party (e.g. acquisition target), Vaultinum’s obligation to provide the Services is conditioned on the execution by such third party of the Source-code Owner NDA.

2.3. Change Orders

In the event the Client requests to make any changes to the scope of the Services to be provided, Client will notify Vaultinum and Vaultinum will promptly provide a written estimate of any adjustments in the delivery schedule or Fees which would result from such changes.  Client and Vaultinum will implement any agreed-to changes in the form of an amended PO signed by both Parties.

2.4. Responsibility of Vaultinum

For purposes of the KYS II Solution and Services, the Code Analyzer is stored and runs on Vaultinum servers located in Switzerland.  The software source code uploaded to Vaultinum’s servers and scanned by the Code Analyzer never leaves Vaultinum’s servers and shall be completely and permanently deleted from Vaultinum’s servers within 24 hours of the termination of the Code Analyzer audit.  The results of the Code Analyzer audit are anonymized and thereafter these anonymized results are analyzed, interpreted and packaged for the purposes of the KYS II Solution and Services.

2.5. Responsibility of the Client

For purposes of the KYS II Solution and Services, the Client shall upload the software source code to Vaultinum’s servers.  The Client grants Vaultinum the right to host and process the software source code for the limited duration and limited purpose of running the Code Analyzer in connection with and in the course of the KYS II Solution and Services.

3. Audit Reports

Vaultinum shall provide a detailed summary of the Code Analyzer results which includes a review by a Vaultinum technical consultant in an Audit Report.  Audit reports can include (i) OSS analysis; (ii) language verification (iii) OSS usage; (iv) inventory of open-source licenses used; and (v) good practices scoring and recommendations.

The Audit Report is based on the software source code provided by the Client.  As a result, Vaultinum cannot warrant or represent that the Audit Report is complete, accurate or correct.  Further, the assessment provided in the Audit Report is based in part on Vaultinum’s technical consultant’s expert view of good practices and industry standards and may not reflect some specific industry standards or all standards and good practices.

Vaultinum does not warrant any results from the use of the KYS II Solution and Service.  The KYS II Solution and the Services may be regarded as a decision-making tool and Vaultinum cannot be and is not liable for any decision taken by the Client on such basis.

4. Payment of Fees

The payment of Fees for a one-time use of the Solution are due upon request for an Audit Report.  A one-time or “one shot” use of the Solution means the generation of one (1) Audit Report.  Upon the successful Fee transaction, the Audit Report will be provided to the Client via the KYS II Solution. 

Prices are available online at vaultinum.com/kys or upon request for an estimate