UtexPay Terms & Conditions

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1. General

1.1. These General Terms and Conditions (“General Terms and Conditions”) supplement contracts, the subject matter of which is consultancy and provision of information through Smart Processing Ltd. dba UtexPay (“UtexPay”) to the client, in particular - but not exclusively - in connection with the company incorporation in any jurisdiction, obtaining various type of licenses for companies, obtaining residence permit in any jurisdiction, assistance in bank account opening, assistances in opening account in payment institutions for processing and acquiring. If and insofar as individual parts of these General Terms and Conditions contradict with what was agreed by UtexPay with the client individually, then the individual agreements take priority over the General Terms and Conditions concerned.
1.2. If UtexPay has included these General Terms and Conditions in a contract with the client once, then they also apply to all future contracts regarding consultancy services between the client and UtexPay, even if UtexPay does not refer to these General Terms and Conditions again in future contracts. This only does not apply if and insofar as the parties agree to the application of new General Terms and Conditions from UtexPay in the future contract.
1.3. UtexPay's General Terms and Conditions apply exclusively. Deviating, conflicting or supplementary general terms and conditions or conditions of the client shall only become part of the contract if and to the extent that UtexPay has expressly agreed to their application and validity in writing.
1.4. Clauses cited in these General Terms and Conditions are, unless designated otherwise in the text, from these General Terms and Conditions.

2. Subject matter of the contract, performance and scope of service

2.1. The subject matter of the contract is the provision of the agreed consultancy services designated in the contract, and not the achievement of a particular economic success.
2.2. UtexPay performs its services with the diligence of an ordinary business and always based on the individual situation and needs of the client. The client is aware that any analysis of a company or market also implies unpredictability.
2.3. UtexPay employs well-trained employees who possess the necessary specialist knowledge and experience for contracts and supports and monitors them. Unless otherwise agreed, UtexPay can make use of expert sub-contractors to execute the contract, whereby UtexPay always remains obligated towards the client directly. Unless otherwise agreed, UtexPay shall decide at its own discretion which employees or sub-contractors will be used.
2.4. UtexPay is not liable for and renders no legal or tax consulting or auditing.

3. Amendments

3.1. UtexPay shall meet the client’s requests for amendment based on the contract insofar as this is possible for it within the scope of its operational capacities and its consulting offer and insofar as the execution of the request for amendment is appropriate and reasonable.
3.2. In case the client cannot be contacted on time, UtexPay can undertake minor amendments to the project without the client’s prior consent, provided that these comply with the client’s presumed will and are especially urgent. UtexPay will inform the client immediately about such project amendments and their impacts.
3.3. Insofar as UtexPay’s expenses increase as a result of a request for amendment by the client or the time frame of the project is extended, the parties undertake to negotiate a corresponding appropriate adjustment to the contract and the payment. Insofar as the contracting parties are unable to agree on a payment for the services, in case of doubt the payment, which UtexPay is entitled to, will increase in accordance with the additional time and cost expenditure.
3.4. If reviewing the project amendment is associated with a significant expense for UtexPay, then UtexPay can request a separate contract to be concluded in this regard.

4. Cooperation

4.1. The client has to support the consulting by appropriate cooperation. In particular, the client shall provide UtexPay with the information, data and documents necessary for the consultation.
4.2. The client shall be obliged to designate a contact person and a deputy as permanent reference persons for all matters relating to the consultation. They are to be put in a position to either make all decisions relating to the consultation themselves or to bring them about in a timely manner. In addition, the client shall provide those employees whose special knowledge UtexPay requires in each case to carry out the Consulting.
4.3. The client will check interim results, documents, discussion logs etc. submitted by UtexPay immediately regarding whether the factual information is to its knowledge full and correct. The client will notify UtexPay immediately in writing about possible amendments or additions required.
4.4. If the Customer fails to comply with his obligations to cooperate and if for this reason UtexPay is unable to complete its consulting services in whole or in part within the agreed period of time, the period of time agreed upon for this purpose shall be reasonably extended. UtexPay shall nevertheless be entitled to remuneration from the client for the period in which UtexPay cannot complete the consultancy.

5. Confidentiality

5.1. “Confidential information” means all information and documents of the respective other party which are marked as confidential or which are to be regarded as confidential due to the circumstances, in particular information on operational processes, business relations and know-how, as well as - for UtexPay - all work results.
5.2. The parties agree to maintain confidentiality about such confidential information. This obligation shall continue for a period of 3 years after termination of the contract.
5.3. Such confidential information is excluded from this obligation:
i. which were demonstrably already known to the recipient at the time the contract was concluded or subsequently become known to it from a third party, without violating a confidentiality agreement, statutory regulations or official orders;
ii. which are public knowledge at the time of conclusion of the contract or are made public thereafter, unless this is due to a breach of this contract;
iii. which must be disclosed due to legal obligations or by order of a court or authority. To the extent permissible and possible, the recipient obligated to disclose shall inform the other party in advance and give it the opportunity to object to the disclosure.
5.4. The parties shall disclose the Confidential Information only to those employees who need to know it for the performance of the contract and shall also oblige such employees to maintain confidentiality to the extent permitted by labor law for the period after their departure.

6. Force majeure

6.1. If UtexPay is prevented in whole or in part from performing its obligations under the contract for serious reasons that are unforeseeable and beyond its control (“force majeure”), such as natural disasters, war, terrorist activities, labor disputes or pandemics, UtexPay shall be relieved of its obligation to perform and shall not be responsible for any partial or total failure to perform its obligations under the contract. In this case, the client pays UtexPay: (i) the expenses incurred by UtexPay due to the termination of the execution of the contract failed; (ii) a partial amount of the agreed remuneration corresponding to the part of the services actually performed by UtexPay.
6.2. If UtexPay is prevented from fulfilling its obligations under the contract for more than 3 months due to force majeure, either party shall be entitled to terminate the contract with immediate effect.

7. Miscellaneous

7.1. During the provision of the consulting services and for the subsequent period of one year after termination of the contract, the client is not permitted to directly or indirectly solicit, encourage or attempt to solicit employees of UtexPay by means of offers.
7.2. The use of the company name and/or trademarks of UtexPay for the purpose of advertising purposes of any kind are not permitted unless prior written consent has been given by UtexPay.
7.3. UtexPay may name the cooperation with the client as a reference. The client may object to the use in writing within four (4) weeks after the establishment of the contractual relationship.

8. Intellectual property

8.1. The client guarantees that the reports, expert opinions, organisational plans, drafts, drawings, schedules and calculations produced by UtexPay within the scope of the contract will only be used for the contractually agreed purposes and will not be edited, translated, reprinted, passed on or disseminated without the explicit written consent of UtexPay. The use of the consultancy services rendered for the company associated with the client requires an explicit written agreement.
8.2. Insofar as work results are subject to copyright, UtexPay remains the originator. In these cases, the client obtains the right of use in the work results only limited by Clause 8.1, sentence 1, but in all other respects is unlimited by time and place, irrevocable, exclusive and non-transferable.

9. Passing on professional statements of UtexPay

9.1. Passing on information and consultancy services provided (hereinafter referred to jointly as “consulting provided”) of UtexPay in connection with the contract (including, e.g. reports, expert opinions, organisational plans, drafts, drawings, schedules, calculations and similar) by the client to a third party requires the written consent of UtexPay, insofar as the consent to pass on to these third parties does not already follow from the contract.
9.2. The client is not permitted to use consulting provided by UtexPay for advertising purposes; a violation of this entitles UtexPay to extraordinarily terminate the contractual relationship and all other contracts of the client not yet carried out in full. Claims of UtexPay going beyond this remain unaffected in this respect.

10. Remuneration and expenses

10.1. UtexPay shall receive remuneration for its services on the basis of the offer prepared by UtexPay plus statutory value added tax.
10.2. In addition to the remuneration, UtexPay is entitled to reimbursement of all its necessary reasonable expenses incurred by UtexPay in preparation for and in the performance of the consultancy. This includes travel costs, travel time, expenses and accommodation costs.
10.3. In the event of unforeseen obstacles or additional costs in the provision of advice, UtexPay shall endeavor to inform the client; UtexPay shall also be entitled to charge the client for the necessary additional expenditure.
10.4. Unless otherwise provided in the offer or contract, UtexPay will invoice the client at the end of each month for the remuneration and expenses incurred. UtexPay is entitled to issue the invoice in electronic form. Each invoice shall contain a list and explanation of the activities performed in the respective billing period and their respective time scope.
10.5. The client undertakes to transfer the remuneration and expenses to the account of UtexPay specified in the invoice within 14 days after receipt of an invoice.
10.6. The client shall be in default without a reminder. From the beginning of the default, the client shall be charged interest in the amount of 9 percentage points above the base interest rate, unless a higher interest rate results from statutory regulations.
10.7. The client may only offset against claims of UtexPay or assert a right of retention if the client's counterclaim is undisputed or has been legally established.

11. Deadlines

11.1. In the event of claims for damages, the client shall notify UtexPay in writing within three months after discovery of the circumstances giving rise to the damage.
11.2. In any case, claims for damages of the parties arising from breaches of duty of the respective other party shall become statute-barred after 24 months calculated from the statutory commencement of the limitation period.

12. Liability

12.1. UtexPay shall provide advice on the basis of the information, data and documents provided by the client. The client has his own responsibility the necessary conclusions and decisions based on the advice given by UtexPay. If the advice given by UtexPay is based on unclear, incorrect, incomplete or misleading information provided by the client, UtexPay shall not be liable.
12.2. UtexPay shall not be liable for late, partial or complete failure to provide advice if this results directly or indirectly from events beyond the control of UtexPay (e.g. in the event of breach of the client’s obligations to cooperate or in cases of force majeure).
12.3. UtexPay shall be liable, limited to the foreseeable damage typical for the contract, for damages resulting from simple negligent breach of essential contractual obligations; essential contractual obligations are those whose fulfillment characterizes the contract and on which the client may rely. The liability of UtexPay due to simple negligence in case of breach of nonessential contractual obligations is excluded.
12.4. However, UtexPay liability under Clause 12.3 above shall be limited to an amount of EUR 5 000 per case of damage. UtexPay shall only be liable for indirect or consequential damage if and to the extent that such damage is typical for the contract and was foreseeable at the time of conclusion of the contract.
12.5. The limitations of liability of this Section 12 shall not apply to damages if they are based on gross negligence or intent as well as in cases of mandatory legal liability. The same applies to damages resulting from injury to life, body or health, if UtexPay is responsible for the breach of duty. The breach of duty by UtexPay in the sense of this Section 12 is equal to that of its legal representative or vicarious agent.

13. Term and termination

13.1. The contract shall commence on the date specified in the offer or in the contract.
13.2. The contract may be terminated by either party with or without cause upon no less than thirty (30) days advance written notice to the other party.
13.3. Either party may terminate the contract if the other party materially breaches any obligation hereunder, provided the terminating party has provided notice of such breach to the other party and an opportunity to cure such breach during a period of not less than thirty (30) days following such notice.
13.4. Upon termination of the contract, UtexPay will immediately cease performing any consulting services, and the client will pay UtexPay any fees not yet paid for all consulting services provided pursuant to the contract or prior to such termination on a prorated basis (or on such other basis as the parties will mutually agree) and reimburse expenses incurred on or prior to termination not yet reimbursed.
13.5. Sections 5, 7, 8, 9, 10, 12, 13, 14 and 15 of the General Terms and Conditions will survive any termination of the contract to the extent necessary to implement their objectives. Termination of the contract will be without prejudice to other rights or remedies of any party under the General Terms and Conditions, contract or applicable law, including, without limitation, any remedies for a breach of the General Terms and Conditions or contract prior to such termination.

14. Data protection

14.1. During the performance of services, UtexPay and the client may mutually gain access to the personal data of the other party. The parties process the personal data only for the fulfilment of the contractual obligations under their own responsibility. Any further processing that constitutes a change of purpose is prohibited.
14.2. UtexPay and client shall process the Personal Data in accordance with Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and other applicable legal obligations.

15. Final provisions

15.1. If one or more provisions of these General Terms and Conditions are invalid in whole or in part, this shall not affect or impair the validity of the remaining provisions. A provision, which comes as objectively close as possible to the economic purpose of the invalid or unenforceable provision, shall take the place of the invalid or unenforceable provision.
15.2. Amendments and supplements to the contract must be made in writing. This shall also apply to the amendment or cancellation of the written form requirement.
15.3. The contract and all matters arising from it shall be governed by and construed in accordance with the English laws and each party irrevocably submits to the exclusive jurisdiction of the Arbitration Institute of the Stockholm Chamber of Commerce. UtexPay may also sue the client at his general place of jurisdiction.