EXHIBIT 10.1
SERVICES AND LICENSE AGREEMENT
THIS SERVICES AND LICENSE AGREEMENT ("the AGREEMENT") is made and entered into
as of the 18th day of November, 2009 (the "COMMENCEMENT DATE"), by and between
ParagonEX Limited., a company incorporated under the laws of British Virgin
Islands, located at Geneva Place, Waterfront Drive, PO Box 3469, Road Town,
Tortola, British Virgin Islands ("PARAGONEX") and Giona Trading Limited, a
company incorporated under the laws of Cyprus, located at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ("CLIENT").
WHEREAS, ParagonEX is in the business of developing software solutions and
applications for enabling Trading through the web; and
WHEREAS, The Client is in the business of operating Trading through the web; and
WHEREAS, ParagonEX desires to provide to the Client and the Client desires to
obtain from ParagonEX, certain professional services, support and a license, all
in accordance with the provisions of this Agreement;
NOW THEREFORE, for good and valuable consideration the parties, intending to be
legally bound, hereby agree as follows:
1. DEFINITIONS - In this Agreement, the following terms shall have the
corresponding meaning:
"BUSINESS DAY" means any day other than a Saturday or Sunday.
"CLIENT'S WEBSITE" means one or more of the Client's websites that are
being used to perform trading in foreign currency, shares, binary options,
indices, commodities, FX games or any other products, enabled by ParagonEX.
Client's website may also include websites displayed or featured on mobile
devices.
"CONFIDENTIAL INFORMATION" means any information provided hereunder which
is marked as "confidential" or should be reasonably understood by its nature or
the circumstances of its disclosure to be confidential or proprietary.
"END USERS" means the clients who use the Client's Website in order to
trade in foreign currency, shares, binary options, indices, commodities, FX
games or any other products enabled by ParagonEX .
"FORCE MAJEURE" means any act of God, fire, natural disaster, accident, act
of government, act of terrorism, war, shortages of material or supplies or any
other cause reasonably beyond the control of the parties.
"TRADING" means trading in foreign currency, shares, binary options,
indices, commodities, FX games or other products enabled by ParagonEX.
"LICENSE" means a nonexclusive, personal, nontransferable, non-assignable
and non-sublicenseable license, for the term of this Agreement, to use the
System in the Client's Website. Client may use same license to operate multi
white labels web-sites and as many as possible brands.
"MARKS" means ParagonEX's trademarks, trade names or logos.
"TECHNOLOGY" means any publicly available most updated software, methods,
and knowhow which are wholly owned, by ParagonEX.
"SERVICES" means the professional services that shall be provided to the
Client by ParagonEX under this Agreement as detailed in APPENDIX A
"SUPPORT" means the support services that shall be provided to the Client
by ParagonEX under this Agreement as detailed in APPENDIX B.
"SYSTEM" means a system developed by ParagonEX based on the Technology
after adjusted and/or modified in accordance with the Client's needs by adding
additional applications.
"MARKETING BUDGET" means budget to be allocated directly with online and/or
offline buying of Media.
"PROFIT" means the total losses made by End Users less transaction costs,
less charge-backs, and less bonuses.
2. GENERAL
PROVISION OF SERVICES. ParagonEX shall provide Services, Support and a
License to the Client during the Term of this Agreement, in accordance with
the provisions of this Agreement.
3 GRANT OF LICENSE
3.1 LICENSE TO THE SYSTEM. Subject to the Client's timely payment of all
applicable fees under this Agreement and subject to the terms and
conditions of this Agreement, ParagonEX hereby grants the License to
Client and Client hereby obtains the License from ParagonEX.
3.2 LICENSE TO TRADEMARKS. Subject to the terms and conditions of this
Agreement, ParagonEX hereby grants to Client and Client hereby obtains
from ParagonEX a royalty-free, nonexclusive, personal,
nontransferable, non-assignable and non-sublicensable license for the
term of this Agreement, to display the Marks in the Client's website
at a location that should be agreed upon by the parties. Client
acknowledges that its use of the Marks is limited to the licensed use
in this Agreement and that Client has not acquired, and will not
acquire, any ownership rights therein.
3.3 LIMITATION ON LICENSE GRANT. Client may not under no circumstance (i)
copy or modify the System or the Technology or attempt to do either of
the foregoing;(ii) reverse-engineer, decompile or otherwise attempt by
any means to create or derive the source code related to the System or
Technology; (iii) authorize any third party to do the abovementioned.
Client may use the System and Marks only for the purposes contemplated
in this Agreement.
3.4 CLIENT'S AGREEMENTS WITH END USERS. Client undertakes to include the
following provisions in all of its agreements with End Users:(i)
provisions protecting the Technology, the System, and the Marks from
any breach; (ii) provisions specifying the End User acknowledgment
that Trading involves substantial risk of loss, and may not be
suitable for every user, and that the responsibility for any and all
loss, damage or claim caused to the End User arising out of Trading
shall be under the sole and exclusive responsibility of such End User,
including without limitations the inability to perform Trading as a
result of a malfunction in the Client's Website; (iii) provisions
notifying the End Users that neither Client nor any of the Client's
service providers takes any responsibility for the accuracy of the
information contained in the Client's Website, and for any damage or
loss caused to the End User as a result of making any use in the
Client's Website and that the use of such information lies solely on
the End User; (iv) The undertaking of the End User to assume all risk
for any transactions performed by it ( including their executions and
confirmations); (v) an undertaking by the End User that he has passed
the age 18 and does not have any limitations by the applicable law to
perform Forex Trading; (vi) the undertaking of the End User to
indemnify the Client and/or its third party service providers for any
and all damages caused to them as a result of the End User's breach of
the agreement between End User and Client; (vii) the undertaking of
the End User to be fully liable in the event of failure of or damage
or destruction to its computer systems, data or records or any part
thereof, or for delays, losses, errors or omissions resulting from the
failure or mismanagement of any telecommunications or computer
equipment or software, or impossibility to execute orders and
requirements due to failures in the operation of information systems
caused by technical faults, which are force majoure.
3.5 ACCESS AND USE OF INFORMATION. The access to the Client's Website
including all information that shall be received and sent by End Users
to the Client's Website shall be made through ParagonEX servers and
shall be available to the Client upon request. ParagonEX does not
assume any responsibility towards the Client and/or any third party
acting on such information contained in the Client's Website as to the
accuracy or delay of information such as quotations, news, and charts
derived from quotations.
3.6 Ownership of Client's players' database shall perpetualy belong solely
to Client. ParagonEX shall not make use of any of Client's players'
database, trading leads, payment information or any other database
information acquired by Client, for any purpose what so ever.
3.7 Client shall be responsible to protect the logins and passwords of its
employees and its End Users. Client's employees will not have access
to logins and passwords other than few authorized personnel at the
sole discretion of Client.
4 SERVICES
4.1 Subject to the Client's timely payment of all applicable fees under
this Agreement and subject to the terms and conditions of this
Agreement, ParagonEX shall provide the Client with the Services.
4.2 MODIFICATIONS TO SERVICE
(i) The Client acknowledges and agrees that the Services may be
modified, suspended or withdrawn by ParagonEX at its sole discretion
provided that ParagonEX shall use commercially reasonable efforts to
notify the Client in writing (i) one (1) Business Day prior to any
modification, having no effect on the Services and (ii) thirty (30)
Business Days prior to any modification in which new Service are not
backwardly compatible with old Services.
(ii) Notwithstanding anything to the contrary herein, ParagonEX shall
be entitled to modify, suspend or withdraw the Services at anytime to
the extent that ParagonEX determines that such modification or
suspension is necessary to avoid material errors from occurring. The
Client shall be informed as soon as possible of such modification or
suspension.
(iii) Furthermore, the Client acknowledges and agrees that upon the
occurrence of a material breach of this Agreement by the Client,
Paragonex may suspend all or part of the Services, License and Support
immediately upon noticeproviding however that such notice has been
sent to Client and that Client has not cured the breach within 21
business days from the date of receipt of such notice.
5 SUPPORT
SUPPORT. Subject to the Client's timely payment of all applicable fees
under this Agreement and subject to the terms and conditions of this
Agreement, ParagonEX shall provide the Client with Support in accordance
with the terms of Appendix B. It is hereby clarified that ParagonEX shall
not provide any Support to End Users.
6 FEES AND PAYMENTS
The amount of considerations that the Client shall pay ParagonEX under this
Agreement shall be as follows:
6.1 PROCESSING FEES: periodical fees that will be paid in accordance with
the Processing Fees Schedule detailed in APPENDIX A ("PROCESSING
FEE"). The Processing Fee shall be invoiced at the end of each month.
6.2 Any additional services that the Client shall elect to purchase from
ParagonEX shall be charged in accordance with ParagonEX' then current
price list.
6.3 The Client shall not be entitled to set off from any of the fees owed
to ParagonEX under this Agreement.
6.4 All fees mentioned are net of VAT (when applicable).
6.5 All payments made by the Client according to this agreement shall be
paid to ParagonEX by wire transfer within 21 days from sending an
invoice.
6.6 In the event that the Client fails to pay any sums due under this
Agreement within 3-days from receiving a written demand from
ParagonEX, the Client shall be obligated to pay interest on such
delayed sums as of the due date and until the full payment of the
delayed sums in a monthly rate of 0.5%, and ParagonEX shall be
entitled to cease to provide all or part of the Services until all
delayed sums, including interest have been made in full.
6.7 Notwithstanding any other provision of this Agreement, it is clarified
and agreed that the Client shall make deductions from any payment made
to ParagonEX under this Agreement as may be and to the extent required
under any applicable law, unless ParagonEX provides the Client with
appropriate tax exemption documents.
7 REPRESENTATIONS AND WARRANTIES
7.1 The Client represents warrants and undertakes to ParagonEX that:
7.1.1 It is duly organized and validly existing under the laws of the
jurisdiction of its organization or incorporation;
7.1.2 It has the full power and right to enter into this Agreement and
to carry out the terms and conditions contained herein;
7.1.3 Its use of the System and Marks shall be in accordance with the
terms hereof and all applicable laws, rules and regulations of
government bodies, and shall not violate or infringe the rights
of any third parties;
7.1.4 The Client undertakes that the Client's Website shall at all
times maintain all safety precautions required under any and all
applicable laws, rules, and regulations of government bodies,
regarding the disclosure of private and/or personal information
of its users;
7.1.5 The Client undertakes to comply with all applicable laws, rules,
and regulations of government bodies, concerning Trading as long
as this Agreement is in effect;
7.1.6 The Client undertakes to attain all the required approvals and
licenses to act as a Trading Website and to further request all
of its End Users for any and all necessary approvals needed by
any applicable law in order to permit such End Users to commence
Forex Trading. In the event that the Client shall be legally
required to obtain any approval or license and fails to achieve
such approval or license, and assuming that such requirement for
license or approval will prevent the Client from providing
Trading services to End Users, then the Client shall have the
right to terminate the Agreement by providing ParagonEX a written
notice in that respect and none of the parties shall have any
claim and/or right toward the other with respect to such
termination. Provided, however, that should the termination be
made prior to the lapse of 12-months from the Commencement Date,
then the Client shall pay ParagonEX the amount of US$25,000
(Twenty Five Thousand United States Dollars) as a full and final
compensation for such termination. Following such 12-months
period, no compensation shall be payable for such termination. It
is clarified that termination under this section shall not
prejudice any right of the parties which accrued prior to such
termination;
7.1.7 The Client undertakes that it shall indemnify ParagonEX, its
officers, directors, employees, representatives and agents with
respect to any suit, claim or proceeding brought against them by
(i) End Users, concerning their Trading or by (ii) any third
parties that the Client engaged in order to be able to perform
Forex Trading provided, provided, however, that (1) ParagonEX
shall have given the Client prompt written notice of such Claim;
(2) ParagonEX shall reasonably cooperate with the Client in the
defense and settlement thereof at the Client's expense; and (3)
The Client shall have sole control of the defense of such claim,
suit, demand, or action and the settlement or compromise thereof.
The Indemnification referred to above shall not apply to any
suit, claim or proceeding resulting out of or in connection with
any act (excluding, for the avoidance of doubt, any acts related
to accuracy or reliability or correctness of the information
(including feeds, whether provided by ParagonEX or by any other
party) presented to End Users through the Client's Website, with
respect whereof the indemnity set forth above shall apply) of
ParagonEX.
7.1.8 The Client hereby releases ParagonEX from any and all
responsibilities for the accuracy or reliability or correctness
of the information (including feeds, whether provided by
ParagonEX or by any other party) presented to End Users through
the Client's Website. The Client further acknowledges that it is
aware that the information presented to End Users through the
Client's Website shall not infer a recommendation by ParagonEX to
enter into or refrain from entering into specific Forex Trading.
8 LIMITATION. EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT, PARAGONEX DOES
NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED,
WRITTEN OR ORAL (INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE). OTHER THAN AS PROVIDED IN THE SLA, PARAGONEX DOES NOT
WARRANT THAT THE USE OF THE SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE.
WITHOUT DEROGATING FROM THE ABOVE PARAGONEX WILL PERFORM ITS OBLIGATION
SETFORTH IN THE SLA INACORDANCE WITH TERMS AND CONDITIONS THEREOF.
9 REPRESENTATIONS AND WARRANTIES OF PARAGONEX
9.1 ParagonEX represents and undertakes that,
9.1.1 PARAGONEX is a corporation duly incorporated, validly existing
and in good standing under the laws of the British Virgin
Islands, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
9.1.2 The execution, delivery and performance of this Agreement and
each of the exhibits in connection with the transactions
contemplated hereby have been duly and validly authorized by all
necessary corporate action on the part of ParagonEX. This
Agreement and each of its exhibits constitute the valid and
binding obligations of ParagonEX, and are enforceable in
accordance with their respective terms. The execution, delivery
and performance of this Agreement do not and will not violate,
conflict with, result in a breach of or constitute a default
under or result in the creation of any Lien under (a) the
Memorandum or Articles of Association of the ParagonEX as amended
to date, (b) any agreement, contract, license, instrument, lease
or other obligation to which ParagonEX is a party or by which it
is bound, (c) any judgment, order, decree, ruling or injunction
or (d) any statute, law, regulation or rule of any Governmental
Agency applicable to ParagonEX or by which any of its properties
or assets or business may be bound.
9.1.3 No registration or filings with, notices to, or consent,
approval, permit, authorization or action of, any third party
(including any Governmental Agency or other Person) is required
in connection with the execution of this Agreement by ParagonEX.
9.1.4 ParagonEX is the true, lawful, and sole and exclusive owner of
all of the License assets, and has valid and marketable title to
all of the License assets, free and clear of all Liens. ParagonEX
has the absolute and unconditional right, power, authority and
capacity to license the License assets to Client free and clear
of all Liens.
9.1.5 The License assets do not infringe, violate or conflict with any
patent, copyright, trade secret or other Intellectual Property of
another Person.
9.1.6 No claims with respect to the License assets have been asserted
or, to the knowledge of ParagonEX, are threatened by any Person,
9.1.7 There is no outstanding order, judgment, decree or stipulation
binding on ParagonEX, and ParagonEX is not a party to or bound by
any agreement, restricting the license of the License assets.
9.1.8 To the best knowledge of ParagonEX, there is no unauthorized
use, infringement or misappropriation of any of the License
assets by any third party, including any employee, former
employee, consultant, distributor or customer of ParagonEX.
9.1.9 ParagonEX has all requisite material licenses, permits and
certificates from state and local authorities necessary to own,
use and license the License assets. ParagonEX is not in violation
of, and is not under investigation with respect to, and has not
been threatened to be charged with or given notice of any
violation of, any law, regulation or ordinance relating to the
License assets.
9.1.10 Neither this Agreement nor any other agreement, document,
certificate or written or oral statement furnished to Client in
connection with the transactions contemplated hereby contains any
untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained herein
or therein not misleading. There is no fact within the knowledge
of ParagonEX which has not been disclosed herein or in writing by
them to Client and which has a material adverse Effect, or in the
future in their reasonable opinion may have a material adverse
Effect on Client or the License assets.
10 MARKETING
10.1 Any publicity material and other documentation prepared by or at the
request of the Client which refers to the Marks or any other name or
▇▇▇▇ owned by ParagonEX shall first be submitted to ParagonEX for
approval, and approval shall be obtained, before publication.
10.2 The Client will clearly display a "Powered by ParagonEX" notice
containing the ParagonEX official logo and linked to the ParagonEX
website on every page of the Client Website. The exact format of such
display will be mutually agreed between the parties, however ParagonEX
reserves the right to modify at any time its official logo and Client
agrees to modify the ParagonEX logo accordingly within 10 days of
notice given by ParagonEX to the Client regarding such variation.
10.3 The Client shall implement a Marketing Budget of not less than 500,000
USD for the first 8 (eight) months from Commencement Date
11 OWNERSHIP RIGHTS AND INTELLECTUAL PROPERTY
Except as expressly provided herein, ParagonEX shall have the sole and
exclusive ownership of all right, title and interest in and to the Marks,
the System, the Technology, and any enhancements and work products thereto,
any documentary or other materials regarding the use thereof and related
thereto, and any data provided to Client by ParagonEX in whatever form or
media. ParagonEX is the sole and exclusive owner of all right, title and
interest in and to all intellectual property rights related to the Marks,
the Technology and the System and any related documentation including,
without limitation, any patents, trademarks (whether registered or not),
trade names, copyright, algorithms, designs, drawings, formula, know-how,
ideas, inventions, improvements' designs, concepts, methods, systems,
computer software programs, databases, mask works, and trade secrets,
plans, processes, software, techniques, tools, and other technology, and
all materials, products, deliverables, derivative work and work products in
all territories. The Client acknowledges that neither it nor any other
person will, by virtue of this Agreement, acquire any ownership interest in
the Marks, Technology or System, including any new version releases,
updates, enhancements, modifications or improvements thereto made available
to Client or in ParagonEX's Confidential Information (as defined below) or
in any intellectual property of ParagonEX, or any rights represented
thereby or therein, or any associated goodwill as a result of the License
and/or ParagonEX's license of the Marks and/or the Services and/or the
Support under this Agreement.
In order to ensure the continuity of the ongoing operation of the Client's
Websites, ParagonEX will deposit the source code of the System's software
in trust of its lawyer, within 30 days from the date of signing this
contract, under the terms of the Escrow Agreement attached as APPENDIX C to
this Agreement (the "ESCROW AGREEMENT"). ParagonEX undertakes to deposit
with the trustee under the Escrow Agreement, from time to time during the
term of this Agreement, any new version and/or update of the source code of
the System's software.
The parties hereby agree that in the event of a dispute between the parties
in respect to the occurrence of any of the conditions set forth in Section
3.1 to the Escrow Agreement, such dispute shall be submitted to a single
arbitrator (the "ARBITRATOR"), who shall be agreed upon by the parties,
within 14 days of the date on which one of the parties has requested in
writing to appoint the Arbitrator, and in the absence of such agreement the
Arbitrator shall be appointed by the Chairman of the Israeli Bar
Association. The arbitrator shall not be subject to the laws of evidence or
civil procedure but shall be subject to the applicable material law of the
State of Israel. The ruling of the Arbitrator shall be binding upon the
parties hereto. This clause shall constitute an arbitration agreement
pursuant to the Arbitration Law - 1968.
12 CONFIDENTIAL INFORMATION
12.1 Confidential Information shall not be used, disclosed or reproduced by
the receiving party without the express written consent of the
disclosing party.
12.2 Confidential Information does not include information which (i) is or
has become generally known or available through no act or failure to
act by the receiving party; (ii) is already known or available at the
time of receipt as evidenced by then-existing written records; (iii)
is previously furnished to the receiving party by a third party, as a
matter of right and without restriction on its disclosure; or (iv) is
disclosed by written permission of the disclosing party.
12.3 Any Confidential Information which is required to be disclosed by
court order or law shall remain Confidential Information, except to
the extent that such disclosure is required by such court order or law
(including US Federal securities laws). If the receiving party
receives a demand in a legal proceeding or by regulatory authorities
that would require the Confidential Information of the disclosing
party to be disclosed, the receiving party shall, to the extent
possible, notify the disclosing party of the demand and assist the
receiving party, if required to do so, in obtaining a protective order
or other relief. Notwithstanding anything to the contrary in this
Agreement, ParagonEx acknowledges that Client or one or more of its
affiliates is a reporting company whose shares are registered under US
Federal securities laws. Therefore Client or its affiliates, as the
case may be, based on advise of counsel, may publicly disclose the
existence of this Agreement and, if need to, file it and make other
disclosures with respect to this Agreement, as requested by regulatory
authorities or as required by law (including securities laws),
applicable regulation or a listing agreement applicable to the Client
or any of its affiliates. Any such disclosure shall be, to the extent
applicable, subject to the terms of this section 12.
12.4 Each party hereby agrees that it shall not use any Confidential
Information received from the disclosing party other than as expressly
permitted under the terms of this Agreement or expressly authorized in
writing by the disclosing party. Each party shall use the same degree
of care to protect the other party's Confidential Information as it
uses to protect its own Confidential Information of like nature, but
in no circumstances less than reasonable care. The receiving party
shall not disclose the disclosing party's Confidential Information to
any person or entity other than its officers, employees and
independent contractors who have a specific need to know such
information in order to effect the intent of this Agreement and who
have entered into written confidentiality agreements with that Party
consistent with no less restrictive provisions than this Section. The
receiving party's duty to hold Confidential Information in confidence
shall expire five (5) years after the term of this Agreement or after
this Agreement has been terminated pursuant to Section 16.2 below.
12.5 The receiving party acknowledges that any breach of the provisions of
this Section 012 may cause irreparable harm to the disclosing party to
an extent that may be extremely difficult to ascertain. Accordingly,
the disclosing party will have, in addition to any other rights or
remedies available to it at law or in equity, the right to seek
injunctive relief to enjoin any breach or violation of this Section 12
and to be indemnified by the receiving party from any loss or harm,
including without limitation, lost profits and attorney's fees, in
connection with any breach or enforcement of the receiving party's
obligations hereunder or the unauthorized use or release of any such
Confidential Information. The receiving party will notify the
disclosing party in writing immediately upon the occurrence of any
such unauthorized release or other breach.
12.6 Notwithsatnding the abovementioned, ParagonEX shall have the right to
disclose Confidential Information, to the extent required in the event
that ParagonEX at its sole discretion identifies any attempt of fraud
either by the Client or by an End User.
13 INDEMNIFICATION AND INSURANCE
13.1 Each party shall indemnify the other party and hold the indemnified
party harmless from and against any and all third party claims and/or
suits (collectively, "CLAIM(S)") arising out of or in connection with
any breach by the indemnifying party of any term and/or warranty under
this Agreement; provided, however, that (1) The indemnified party
shall have given the other party prompt written notice of such Claim;
(2) The indemnified party shall reasonably cooperate with the other
party in the defense and settlement thereof at other party's expense;
and (3) The other party shall have sole control of the defense of such
claim, suit, demand, or action and the settlement or compromise
thereof.
13.2 Each party shall indemnify the other party against any damage loss or
expense caused to the indemnified party as a result of the other
party's breach of any of its undertakings under this Agreement.
13.3 The Client shall indemnify ParagonEX with a fixed fee of $50,000 in
case of breaching of section 10.3 mentioned above.
13.4 ParagonEX declares and undertakes that it has in its position and that
it shall maintain during the Term (as defined below) an insurance
policy covering potential liability of ParagonEX in connection with
the performance of this Agreement, with a limit of liability of not
less than US$ 1,500,000 (One Million and Five Hundred Thousand United
States Dollars) per claim and in the aggregate. ParagonEX shall
provide the Client with a copy of such insurance policy within 45-days
from the Commencement Date (or, if not obtained by such time,
reasonable time after it has been obtained but not later than 90-days
from the Commencement Date).
14 LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR OTHERWISE RELATING TO THIS
AGREEMENT, THE USE OR PERFORMANCE OF THE TECHNOLOGY AND THE SYSTEM, OR TO
THE SERVICES OR THE SUPPORT, INCLUDING, WITHOUT LIMITATION, FOR ANY SYSTEM
DISRUPTION, MARKET DISRUPTION, THE NETWORK, TECHNICAL MALFUNCTION, COMPUTER
ERROR OR LOSS OF DATA OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND,
EVEN IF SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE OTHER PARTY
HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL EITHER
PARTY'S LIABILITY, EXCEED THE GREATER OF THE AMOUNT OF US$1,500,000 (ONE
MILLION AND FIVE HUNDRED THOUSAND UNITED STATES DOLLARS) OR THE AMOUNTS
PAID TO PARAGONEX BY THE CLIENT HEREUNDER DURING THE PERIOD OF 18MONTHS
PRIOR TO THE EVENT THAT GAVE RISE TO SUCH LIABILITY.
15 TAXES
Without prejudice to the above, in the event that (i) Paragonex is required
to make any payment of or on account of tax on or in relation to any sum
received or receivable under this Agreement, including without limitations
any tax for any Trading made by End User, and any sum deemed for the
purposes of tax to be received or receivable by Paragonex whether or not
actually received or receivable; or (ii) any liability in respect of any
such payment is asserted, imposed, levied or assessed on or against
Paragonex; or (iii) Paragonex incurs any liability in respect of any stamp,
registration, or similar tax (including for the avoidance of doubt stamp
duty reserve tax) which is or become payable in connection with this
Agreement or the applicable law; then the Client and/or its End Users is
required, upon demand by Paragonex, to promptly indemnify Paragonex against
that payment or liability, together with any interest, penalties, costs and
expenses payable or incurred in connection with that payment or liability
provided that this Section will not apply to any tax imposed on and
calculated by reference to the charges actually received or receivable by
Paragonex. For the avoidance of any doubt, it is clarified that the
provisions of this section 15 shall not apply to any deduction of tax at
source under section 6.7 above, to the extent applicable.
16 TERM AND TERMINATION
16.1 INITIAL TERM. Unless terminated earlier by Client in accordance with
the provisions hereof, this Agreement shall commence as of the
Commencement Date as defined under Appendix A and shall be in effect
for unlimited period of time (the "TERM").
16.2 TERMINATION.
16.2.1 Either party may terminate this Agreement at any time without
notice in the event that (i) the other party should become
insolvent or upon a filing of a request for the appointment of a
trustee, liquidator or receiver for such party or such similar
action; or (ii) if the other party is in breach of a material
provision herein and the breaching party does not cure such
breach within thirty (30) days (iii) any delay in payment which
is not cured within twenty one (21) days from the date of a
written demand by the other party to make such payment.
16.2.2 Either party may terminate this Agreement, for any reason, upon
not less than ninety (90) days' prior notice but not earlier than
20 (twenty) years after the Commencement Date.
16.2.3 Without derogating from the abovementioned, ParagonEX may
terminate this Agreement with a notice (in accordance with
section 17.6 below) of 21 business days to the Client in the
event that it has come to its intention that (i) the Client
and/or the Client's Website is in breach of the applicable
regulatory requirement for Forex Trading; (ii) any End User is
using or trying to use the Client's Website in an illegal or
unethical way and the Client shall not act to prevent such End
User from performing such use within thirty (30) days from notice
(in accordance with section 17.6 below) by ParagonEX.
16.3 EFFECT OF EXPIRATION OR TERMINATION.
16.3.1 Upon the expiration or termination of this Agreement for any
reason, the receiving party will, at the disclosing party's
option, return or destroys any and all Confidential Information
including all documentation.
16.3.2 Client acknowledges that upon the expiration or termination of
this Agreement, it will immediately cease to use or access the
System and the License and license to the Marks will immediately
be terminated.
16.4 SURVIVAL. Sections 12, 13, 14, 16.3, 17 shall survive any termination
or expiration of this Agreement.
17 MISCELLANEOUS PROVISIONS
17.1 INDEPENDENT CONTRACTOR STATUS. Each party shall be and act as an
independent contractor and not as partner, joint venturer or agent of
the other, and nothing herein shall be construed as creating a
partnership, joint venture or agency relationship. In performing the
obligations contained in this Agreement, Each party shall have
exclusive control over the means, methods and details of meeting the
respective obligations for which each is responsible hereunder, and at
all times shall be acting in their capacity as an independent
contractor and not as an employee or agent of the other party.
17.2 FORCE MAJEURE. Neither party will be deemed to be in default of this
Agreement to the extent that performance of its obligations or
attempts to cure any breach are delayed or prevented by reason of
Force Majeure, provided that such party gives the other party written
notice thereof promptly and, in any event, within fifteen (15) days of
discovery thereof, and uses its diligent, good faith efforts to cure
the breach. In the event of such a Force Majeure, the time for
performance or cure will be extended for a period equal to the
duration of the Force Majeure but not in excess of six (6) months, at
which point this Agreement may be terminated in accordance with the
terms hereunder.
17.3 ASSIGNMENT. The Client may not assign or transfer its rights or
obligations under this Agreement to any third party without the
express written permission of ParagonEX, which permission will not be
unreasonably withheld. ParagonEX may freely assign its rights and
obligations under this Agreement to an affiliate or to a successor to
all or a substantial part of its business activities. For greater
certainty, a change of ownership of ParagonEX's shares will not be
considered an assignment of ParagonEX's rights and obligations
hereunder.
17.4 GOVERNING LAW; DISPUTE RESOLUTION. This Agreement shall be governed in
all respects by, and interpreted in accordance with the laws of
England excluding its conflict of laws provisions. All disputes and
differences arising out of or relating to this Agreement or to its
interpretation, shall be brought exclusively in a competent courts of
London. Notwithstanding, in the event of a dispute between the parties
as provided in section 11 to this Agreement, the provisions of section
11 shall apply and the provisions of this section 17.4 shall not be
applicable.
17.5 PUBLICITY. Client and ParagonEX may disclose the existence of this
Agreement and the relationship established hereunder, with the consent
of the other party. Each party shall give the other party reasonable
opportunity to review any disclosure required by law prior to its
dissemination. Notwithstanding the foregoing, nothing in this
Agreement is intended to imply that either party agrees to any
publicity whatsoever, and either party, may in its sole discretion,
withhold its consent to any publicity. The provisions of this section
17.6 are subject to the provisions of section 12.3 below with respect
to any notice and/or disclosure which the Client shall be required to
make by any competent authority and/or under any applicable law.
17.6 NOTICES. Except as otherwise provided herein, any notice hereunder
shall be in writing and shall be given by registered, certified or
express mail, or reliable overnight courier addressed to the addresses
above, or by facsimile to the above facsimile numbers, or by email to
the above email address. Notice shall be deemed to be given upon the
earlier of actual receipt or three (3) Business Days after it has been
sent, properly addressed and with postage prepaid.
17.7 HEADINGS. The headings of sections and subsections of this Agreement
are inserted only for the purposes of convenience and they shall not
be construed as to affect the scope, meaning or intent of the
provisions of this Agreement or any part or portion thereof, nor shall
they otherwise be given any legal effect.
17.8 NO WAIVER. Failure by either party to enforce any provision of this
Agreement will not be deemed a waiver of future enforcement of that or
any other provision
17.9 SEVERABILITY. If a court of competent jurisdiction finds any provision
of this Agreement invalid or unenforceable, such determination will
not affect any other provision of this Agreement, and the parties
shall negotiate in good faith a replacement provision.
17.10 COUNTERPARTS. Any number of counterparts may be executed by the
Parties. Each such counterpart shall be deemed to be an original
instrument but all such counterparts, taken together, shall constitute
one and the same agreement.
17.11 ENTIRE AGREEMENT AND MODIFICATIONS. This Agreement represents the
entire understanding between ParagonEX and Client with regard to the
subject matter hereof, and supersedes all prior other agreements,
instruments, understandings and/or communications between the parties
and the parties hereby agree that upon execution of this Agreement all
such other agreements, instruments, understandings and/or
communications shall become void, null and of no further force and
effect. This Agreement may not be and cannot be modified except by a
written instrument signed by the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Commencement Date:
PARAGONEX LIMITED GIONA TRADING LIMITED
_____________________ _____________________
By: By:
Title: Title:
Date: Date:
APPENDIX A - SERVICES
------------------------------ -------------------------------------------------
CLIENT
------------------------------ -------------------------------------------------
CLIENT REGISTRATION NUMBER
------------------------------ -------------------------------------------------
CLIENT REGISTERED ADDRESS
------------------------------ -------------------------------------------------
SETUP AND INSTALLATION Setup includes:
- Website creation and customization
- Back-office creation and adjustments to
Client's business model
- Database creation (schemas and default values)
- Setting up Client support system
- 30 hours of training at the Clients location
- Hosting. Client has the option to host its
servers at a different site upon a 60-day
advance notice to ParagonEX. ParagonEX shall
assist with the seamless transfer of the
hosted servers and data. Cost of hardware will
be borne by Client. ParagonEX fees for service
shell be agreed between the parties prior to
such modification
- Quotes feeds
------------------------------ -------------------------------------------------
SETUP FEE None
------------------------------ -------------------------------------------------
SPECIAL REQUIREMENTS Additional features:
iPhone application shall be provided at a cost of
$15,000 Facebook skin shall be provided at a cost
of $15,000 Other application that will be
developed by ParagonEX from time to time shall be
provided at an agreeable cost.
------------------------------ -------------------------------------------------
PROCESSING FEES TABLE Processing Fees are charged from Profits (as
defined above) generated during invoiced month in
the system (the "Revenues") according to the
following table:
o For Revenues of 0-$250,000 - 12% of Revenues
o For Revenues of $250,000-$500,000 - 12% of
Revenues (in case of reaching Revenues higher
than $250,000 in less than 6 months from
Commencement Date, 11% of Revenues)
o For Revenues of $500,000-$1 million - 10% of
Revenues
o For Revenues higher than $1 million - 7.5% (in
case of reaching Revenues higher than $1
million in less than 1 year, 5%. In case of
reaching Revenues higher than $1 million in
less than 18 months, 6.5%)
------------------------------ -------------------------------------------------
MONTHLY MINIMUM During the first 4 months from
$0 Commencement Date
------------------------------ ------- ---------------------------------------
Following 4 months from Commencement
$10,000 Date
------------------------------ ------- ---------------------------------------
COMMENCEMENT DATE 30 days from approving website and trading zone
layout and design and from engaging required
payment solutions. Implementation of at least 2
payment providers (chosen by Client) is integral
part of the setup process and does not carry any
additional cost.
------------------------------ -------------------------------------------------
STRATEGIC CONSULTING SERVICES 10 hours per month are included in the monthly
Service Charge. Extra hours will be charged at
$200 - per hour.
------------------------------ -------------------------------------------------
------------------------------ -------------------------------------------------
CUSTOMIZATION SERVICES 10 hours per month are included in the monthly
Service Charge. Extra hours will be charged at
$100 - per hour.
------------------------------ -------------------------------------------------
LANGUAGES The software will be provided at English. For
every additional language the client shall pay
additional $2,500. Translation of resources files
and required graphics will be provided by the
Client.
------------------------------ -------------------------------------------------
CLIENT'S URL'S ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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APPENDIX B
TERMS FOR SYSTEM SUPPORT COVERAGE
SERVICE LEVEL AGREEMENT (SLA)
As part of the overall service delivery to our Clients ParagonEX provides an
SLA. ParagonEX understands that non-stop availability of the System is the key
to our Clients and the team of engineers continuously monitors the individual
systems to ensure the high expectations of the Clients are met.
ParagonEX offers an SLA scheme to Clients in which Service Credits will be paid
in case ParagonEX is not able to operate its system to the service levels as
presented below. Service Credits can be used to purchase Strategic Consulting
hours and Customization hours. The following engineering and consulting services
are available against collected Service Credits:
>> STRATEGIC CONSULTING SERVICES -This service is given by ParagonEX key
personnel and is available within one Business Day for up to one hour
and within three Business Days for more. One hour of consulting can be
used against three Service Credits.
>> CUSTOMIZATION SERVICES - Special modifications and customizations to
the System may be executed by the ParagonEX engineers upon a prior
minimum of three Business Days. One hour of this type of customization
service can be used against two Service Credits.
>> UNUSED SERVICE CREDITS - Unused Service Credits will expire after 12
months.
AVAILABILITY
For the delivery of the Service ParagonEX is committed to 99.75%
availability.
------------------------- ----------------------- -----------------------
SLA RANGE MAX OUTAGE MIN / WEEK SERVICE CREDITS
------------------------- ----------------------- -----------------------
<100% >99.75% 22 -
------------------------- ----------------------- -----------------------
<99.75% >99.50% 43 4000 USD
------------------------- ----------------------- -----------------------
<99.50% >99.25% 65 8000 USD
------------------------- ----------------------- -----------------------
<99.25% >99.00% 86 12000 USD
------------------------- ----------------------- -----------------------
To receive credit the Client must contact ParagonEX within 10 days after
the end of the month in which the SLA is not met.
ParagonEX will not consider the following as non-availability of service:
1. Force Majeure;
2. Acting on advice from third parties such as emergency services;
3. Scheduled maintenance or re-configuration to service. ParagonEX will
use its reasonable endeavors to ensure that such maintenance is
carried out during off peak hours and that the Client is notified at
least one week in advance;
4. Outages resulting from problems caused by the Client's failure to
follow agreed procedures, or caused by unauthorized changes to the
System by the Client;
SCOPE OF SUPPORT SERVICES
1. ParagonEX will provide Client with Support Services for the System.
The Support Services shall be provided to the Client 24/7
2. Ticketing Service - an online Client Support System will be set up for
the Client. The Client Support System shall enable the Client to
report and track every Error. Errors shall be divided by ParagonEX
into three levels and shall be addressed as follows:
a. CRITICAL ERRORS - up to 4 hours
b. MAJOR ERRORS - up to 2 Business Days
c. MINOR ERRORS - up to 7 Business Days
3. SUPREME SLA - The Client will be able to selectively raise the
priority of any reported error such that its handling is initiated
immediately upon reporting (up to 30 minutes from ticket opening).
Expediting a ticket will bear a per hour cost for the full duration of
the error fixing in accordance with the ParagonEX Special Support
Service. A contact person (account manager) will be available by
cellular phone for support during working hours 09:00 to 20:00.
SPECIAL SUPPORT SERVICES
1. In the Event that Client shall request any support services that are
not included in the Support Services it will be charged at the Special
Support Services Rate as defined Appendix A to the principal
Agreement.
EXCLUSIONS
1. ParagonEX shall have no obligation to support the System in the
following events:
a. Errors caused by Client's gross negligence,
b. The Client has used the System in an environment or a manner or
for purpose for which the System is not designed or intended
c. The Client has not completed any of his due payments to the
Company.
2. In the event that ParagonEX determines that the Error in the System is
caused by any of the events listed above, ParagonEX shall charge the
Client for providing the support in accordance with ParagonEX Special
Support Service rates.