Terms and conditions.
This Agreement, effective by the date entered below (the “Effective Date”) is entered into by and between PHC 2 Service Lda. (also “PHC”), a Company headquartered at Lagoas Park Building 3, 2nd Floor, Porto Salvo, Portugal, registered by the Trade Registry Office of Amadora with a share capital of 5.000,00 Euros and the end customer (also “User”) for the licensed application named PHC FX, effective as of the date (the “Effective Date”), which by subscribing PHC FX accepts all terms and conditions set forth in this agreement.
The parties agree that the terms listed below will have, for purposes of this agreement, exclusively the meanings transcribed here:
a) PHC FX application: an application which includes the standard software, developed and tested by PHC, branded with the name “PHC” and sold under the alias “PHC FX”, currently in the process of trademark registration, and the hosting of the system on a DataCenter defined by PHC, promoted to the user under the widespread concept called “software as a service, SaaS”, which briefly means that the user does not install the software but rather, accesses it remotely while simultaneously hiring the license and the related services, like hosting the application and its data on a DataCenter;
b) User: Owner of the license to use the application and beneficiary of all related services, according to the terms governed by this agreement; c) PHC FX Partner: The Company with whom a sales agreement is signed and legally binding to PHC, giving them right to sell the application and, if properly empowered with technical expertise, conclude the initial start-up and provide technical support. Depending on whether the Partner sells or provides technical support, only sell or just provide technical support, the PHC FX Partner will adhere to the designation Total, Sales or Support;
d) Effective date: Issue date of the confirmation letter sent to the User by PHC, confirming the subscription and duration of this agreement, as well as, amendments and renewals of the term of this agreement;
e) Access information: Username and password that allow access to the application;
f) Initial start-up: moment when the user receives the confirmation letter with access information and starts using the application;
g) CPU: Central processing unit;
h) Configuration: Parameter settings of the application;
i) Software error: Option available that presents an error preventing it to run;
j) DataCenter: Repository where the application and the user data shall be installed and hosted;
i) Reverse Engineering: Recreate routines from its features and not from the code it is built on;
m) Products: the various independent applications of the PHC FX system;
n) Simultaneous users: state where the application allows users to simultaneously access the information up to the limit defined in the subscription and per reference of one end customer;
o) External application: any and all applications developed, supported and sold by a PHC FX Developer Partner, that accesses and lawfully manipulates data provided by the PHC FX Engine system.
p) myPHC FX: Site owned by PHC, whose access is limited to a identified subscribers, that contains relevant information to use the application.
1 – This agreement is intended to assign, non-exclusive rights of use of the application to the User, whose specifications and technical data are provided with this agreement and are made available at myPHC FX, including:
a) License to use the software, which incorporates the set of computer applications that allow the user to access and maintain data;
b) Hosting: a service that allows the User, to run the software using their browser, including the license to use the application with encrypted SSL technology;
c) Data hosting: service that saves all data (on a database) created by the user while using PHC FX Software.
3- The data hosting service includes a backup system, that creates daily incremental backup copies and a weekly backup copy of the user’s data, which will be stored in the DataCenter. Every two weeks these backups are transferred to facilities located in another city. Backups are kept for the maximum time of 30 (thirty) days, with a restoring timeline of 24 (twenty-four) hours, information on an older backup cannot be retrieved. Removing individual data and delivering it to the end customer has its own charges and these prices can be found on the price list. Online backups with less than one week differ from offline backups which are over two weeks.
3- By this agreement, PHC licenses the right for the user to use PHC FX software and the right to benefit from related services, according to the terms pursuant in clause three.
4- Both parties agree that all rights of author and ownership belong exclusively to PHC.
5- The User expressly agrees, for all legal purposes, to accept ad-hoc modifications to this agreement, in terms of replacement by another company that will provide the same services for this specific business area.
3. Scope of the subscription and term
1- The use of the application is granted by PHC to the user for a period of 1 (one) month or 12 (twelve) months from the effective date, according to the choice of the user at the end of this form, this period will then renew automatically and successively for equal periods of time, unless termination by either party by registered letter with acknowledgment of receipt, is sent to the counterparty with a minimum prior notice, of 7 (seven) days and 30 (thirty) days, respectively.
2- The right to use the application is non-transferable and grants the non-exclusive right to use the application and benefit from services associates with it, pursuant to this agreement and for purposes related to business transactions.
3- The application will be used exclusively by the User which will not, under any circumstance, assign or transmit access information to third parties.
4- It is also prohibited to decompile, disassemble or reverse engineer any part of the software or in any way part of the license.
5- It is also strictly prohibited to sublicense the use, or use the application in any scheme other than that expressed in this agreement, unless granted by PHC with prior consent.
4. Subscription, acceptance and change of terms
1- Subscription to PHC FX, as well as subsequent amendments, is accepted only after receiving the PHC FX Subscription Form, which is formally processed by a PHC FX Partner.
2- Signing the Subscription Form means accepting the terms of this agreement and subsequent amendments, so it should be carefully read by the user, as both parties acknowledge then that the delivery of this form includes unconditional full acceptance of these terms.
3-This agreement is considered legally and completely valid on reception of the confirmation letter sent by PHC to the user.
4- The confirmation letter, issued by PHC, will contain the number attributed to this agreement, including and without limitation of a precise description of the software, products, databases, simultaneous number of users and access information.
5- An amendment to this agreement of new databases, products and increasing the number of users relies on the same formality, identical to the one described in the previous paragraphs of this clause.
6- When the database ceases to correspond to user needs, PHC will inform the user by email and at the dedicated site, and will include the new amount in the upcoming invoice.
7- The User may cancel products, users, databases or even shut down the system, the latter is only possible on renewal of the agreement. These changes will occur at the beginning of the contract period or if the subscription is canceled, on the day of its cancellation.
8- The subscription will be entirely monthly or annual, i.e. all amendments will have the same duration as the initial subscription.
9- At the end of each subscription period the user can change the duration period, i.e. at the end of a monthly period it can be changed to annual and at the end of a year you can change to monthly, by accessing mtPHC FX site, and defining the necessary adjustments.
5. Installation shall be the sole responsibility of PHC and will be performed with prior notice together with the DataCenter.
1- The user will use the application with the number of users subscribed.
2- Whenever a work session is initiated, the application is started on the server, to automatically check the validity of the license granted to the User and trigger the commands needed to enable the effective use of the application.
3- The User declares and guarantees to provide a proper connection to its users, as well as acknowledge that the absence or lack of an Internet connection prevents a correct use of the application.
4- Subject to the use of the application, the user is obliged to strictly respect the intellectual property and industrial rights or any other exclusive right of the DataCenter.
7. Electronic Invoices
1- Some PHC FX products may allow the user to issue electronic invoices.
2- To use this feature the User grants PHC, the right to use the digital certificate owned by PHC to digitally sign documents.
3- The user will always and in all circumstances be responsible for the content of electronic invoices issued in accordance with the provisions of this clause, and may not, under any circumstances, hold PHC liable for any cost or risk inherent in these invoices, nor its legal authenticity.
4- The user will define if each invoice is signed, as well as assume responsibility for its content, submission and archive.
8. Service availability
1- The service levels provided by the DataCenter will be those that, in each moment, are listed on the customer dedicated PHC FX website (myPHC FX).
2- The service may be temporarily unavailable for periods technically necessary for PHC to complete technical interventions, including periodic maintenance, error resolution, updates and upgrades.
3- In the event of service unavailability PHC will announce an estimated recovery time, whenever this information is available and when the cause of downtime is caused by third parties.
4- Backups and performance optimization operations will be performed to the entire system during the evening, from 0:00 AM (zero) to 7:00 AM (seven), and on the week-end, in which case there may be a slight performance loss during these periods.
1- Subject to implementation of this agreement, PHC will maintain strict confidentiality of all User information, both parties also agree to maintain confidential all the information in the databases stored in the DataCenter for use only in the application. 2- The User authorizes PHC to obtain statistical information, insomuch as to analyze improvements, performance optimizations, mistakes to be corrected or produce global information, with full and strict application of the provisions of paragraph one of this clause concerning the duty of secrecy and confidentiality, PHC expressly ensures that the user will not, under any circumstances, be revealed to third parties or any data that may allow the user to be identified.
1- Prices are listed on the price list in force at the date of each invoice, which will be exclusively provided to the user by the PHC FX Partner, it is, however, also available on the PHC FX Internet site.
2- The User will be prompted to pay by electronic invoicing sent by PHC, and payment must be made by credit card, which is the only accepted form of payment, by accessing the User website myPHC FX and paying online.
3- Invoicing is sent at the beginning of each month, or at the beginning of each year, depending on the payment plan chosen by the User.
4- Invoicing begins at the end of the month of the effective date, this rule does not apply to annual contracts which will be charged a full year from the effective date.
5- DataCenter services requested by the User at myPHC FX will be charged on request and should be included in the next invoice to the Use, which will pay it by credit card at myPHC FX site.
11. Software updates
1- Pursuant to the terms in this agreement, the User has access to PHC FX updates for the version in force during that subscription, as well as, new versions called upgrades.
2- Updates will be automatically deployed by PHC, directly in the Datacenter, informing the user previously at myPHC FX of the availability of these updates.
1- With PHC FX Engine the user can purchase the right to use external applications that access their data with a PHC FX Developer Partner, and define which applications have access and terminate their access at any time.
2- Acceptance of this agreement, implies acknowledgment and acceptance that PHC can cancel at any time the use of any external application that accesses the system via PHC FX Engine, if it is reasonable to believe that this application can harm the user, the system, contain malicious code, errors or viruses, causing excessive strain on the performance or violate intellectual property of PHC or of a third party.
3- The use of any external application is subject to the conditions and warranties agreed upon between the user and the PHC FX Developer Partner that supplies that application, by which PHC will not assume any liability, warranty, and may not be held liable by the user for any error, data destruction or system breaks, caused by external applications.
4- Except if expressly consented, PHC does not assume any warranty of compatibility of external applications with the application, nor as to the correct operation of any external application that accesses the user’s system via PHC FX Engine.
13. Suspension and termination
1- The agreement is automatically suspended if the user has incurred interest for more than 12 (twelve) days, for payment of the agreed price.
If the service is suspended, re-activation will occur within 5 days after the agreed payment price is fully settled, including the price to reactivate the system, available on the price list and sales terms.
3- The duration of this agreement will cease, without prejudice to the application of general rules of law concerning the resolution, cancellation and expiry of contracts, as well as the provisions in clause eleven of this agreement, if the User violates its current obligations, which will ban them from further use of the system.
4- The agreement will cease if non-payment of the agreed price occurs 30 (thirty) days after the start of incurred interest.
5- Ceasing the duration of this agreement, shall be immediate and without any further formality and access to the system will be completely removed.
6- During a period of one (1) years from the date of termination of this agreement, the user may request a backup of all databases, which will be provided after payment of the price specified in the price list and PHC FX sales terms, and with the condition that all debts to PHC and to the User’s Partner are fully settled, to the date in which the data requested is provided.
7- If the user ceases, in any form, to use PHC FX before the end of the term in progress, the User will be obliged to settle the fully accepted payment until the end of that term.
14. Modification to the software
Any changes, desired by the User, to the software licensed under this agreement, shall be subject to specific agreements.
15. Change of PHC FX Partner
If the User, starts to relate to a different PHC FX Partner previously used, PHC must be immediately notified in writing.
16. Training and technical support
Staff training and technical support will be subject of agreements specifically awarded for those effects with PHC FX Partners or by request available on myPHC FX site.
1- PHC assures that the System allows the User to perform the functions described in the documentation referred to in second clause of this agreement.
2- In the event of error in the software license which is the responsibility of PHC, PHC ensures to conduct all efforts to ensure that the software is updated in the shortest time.
3- PHC, without prejudice to the provisions in this clause, shall not grant the User any other warranty, specifically that the System will not suffer interruption of use or that the licensed software is completely free of errors.
4- The User declares to expressly exempt PHC, after the effective date, of any responsibility for damages or losses arising from or for their business transactions, due to the use of PHC FX software.
5- PHC does not guarantee that the characteristics of the licensed software and its operation remain unchanged in the future, due to the fact that the software will be in constant development and innovation.
6- Warranties provided by PHC under this clause, in particular concerning the characteristics and operation of the licensed software is only applicable in the case of the user using this software with a browser and operating system compatible with Flash Player 10.
7- In the same way the warranties provided by PHC are only valid when the user invokes the PHC FX Partner for the purposes of technical support.
18. Force majeure
1- PHC has the mechanisms and computer tools, energy and adequate telecommunications, needed to guarantee permanent operational use of the System, and of its features that depend on user access, to the DataCenter.
2- However, the parties agree that PHC will not, in any way be held responsible for difficulties of remote access or by the interruption of that access, which are motivated by natural facts or attributable to acts or omissions of third parties, which by their nature and/or conditions are outside the effective control of PHC.
1- Failure to comply to the obligations of this agreement, grants the counterparty, under the general terms of applicable law, the right to resolution.
2- Failure to comply with contractual obligations by the user, with exception of those relating to the payment of the price stipulated, specifically regulated by the provisions in clause ten, allows automatic termination of this agreement, with the inherent and immediate deprivation of the right to use the System, without prejudice to the possible civil and criminal liability in accordance with the provisions in the existing law.
20. Content and fulfillment of this agreement
1- This agreement constitutes the sole source of any legal relationship established between PHC and the user, prevailing over any other document or communication issued by the parties.
2- The letter of confirmation issued by PHC, in its original version, is a part of this agreement.
1- The communications between the parties relating to the implementation of this agreement shall be conducted solely through e-mail, except when expressly agreed the need for registered letter with acknowledgment of receipt, which will be directed to the home or the registered head office of the party.
2- Communication between the Contracting Parties, in compliance with this agreement, shall be deemed received and acknowledged on the date of receipt identified by the communication tool, in the case of a fax machine or e-mail, or when sent by prepaid certified mail, the date registered on the notice of return receipt.
22. Law and jurisdiction
1- This agreement shall be governed by the laws of Portugal.
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