Contents
1. DEFINITIONS
2. BASIS OF CONTRACT AND REGISTRATION
3. SERVICES
4. HACKGATE CREDITS
5. HACKRATE’S OBLIGATIONS
6. CLIENT’S OBLIGATIONS
7. ACCEPTABLE USE OF THE SERVICES
8. WARRANTIES AND DISCLAIMERS
9. INDEMNITY
10. COMPLIANCE
11. CONFIDENTIALITY
12. INTELLECTUAL PROPERTY RIGHTS
13. LIMITS ON LIABILITY
14. TERMINATION
15. DATA PROTECTION
16. VARIATIONS
17. FORCE MAJEURE
18. ASSIGNMENT
19. WAIVER
20. SEVERANCE
21. NO PARTNERSHIP
22. NOTICES
23. LAW, JURISDICTION AND LANGUAGE
These Terms and Conditions (“Terms and Conditions”, “Terms”) govern all use of HACKRATE’s HackGate Gateway Services (“HackGate”) and the related ancillary Services provided by HACKRATE.
HackGate is owned and operated by HACKRATE Kft. (seat: H-2890 Hungary, Tata, Baji út 35. Building 2. 2/12.; phone: +36203108651, e-mail: info@hckrt.com, registered at the Regional Court of Tatabánya with registration No.: Cg. 11-09-028368, EU Tax ID: HU28961200, “HACKRATE”). Client and HACKRATE is each a “Party”, jointly referred to as “Parties”.
THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSES 8, 12, 13, AND 23 (WARRANTIES AND DISCLAIMERS, INTELLECTUAL PROPERTY RIGHTS, LIMITS ON LIABILITY, LAW, JURISDICTION AND LANGUAGE).
1. DEFINITIONS
Active Period: the timeframe of using the HackGate Gateway Services. The minimum Active Period must be at least 5 days.
Affiliate: includes, in relation to either Party, each and any subsidiary or holding company of that Party and each and any subsidiary of a holding company of that party OR any business entity from time to time controlling, controlled by, or under common control with, either Party.
Agreement: these Terms and Conditions or any other written agreement signed by an authorised signatory of HACKRATE and the Client governing the use of HackGate and the Services;
Authorization: the term defined in Clause 8.2.b).
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Clause 11.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Data Protection Legislation: the General Data Protection Regulation ((EU) 2016/679) and the Hungarian Privacy Act (Act No. CXII of 2011) and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a Party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a Party.
Environment: the set of IT systems and assets under the sole control of the Client and as provided “as-is” by the Client and as the Client explicitly provided Authorization for HACKRATE. The Client may define the scope of the Environment in the HackGate admin center.
Export Control Laws: any applicable laws or regulations applicable, including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval.
Force Majeure: any act of government or state, civil commotion, epidemic, fire, flood, industrial action or organised protests by Third Parties, natural disaster, war, failure of payment systems, damage to or failure of any Third Party’s computer equipment, software or telecommunications systems used to provide the Services, or any event beyond the reasonable control of the Party claiming to be excused from performance of its obligations.
HackGate Account: Client's registered account on the HackGate platform.
Intellectual Property Rights: all patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all and other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world.
HackGate Credit: the HackGate Credit is a platform credit that can be used to purchase various services on the HackGate platform. Client may earn HackGate Credits by buying them from HACKRATE on the actual price listed on the HackGate platform.
HackGate Gateway: the HackGate Gateway is an enterprise-level managed monitoring appliance provided by HACKRATE for its Clients to monitor, record and analyse the Client’s network traffic during the Active Period.
Client: the Party being a business user i.e. acting within the scope of an economic activity (trade, business, craft, liberal profession) and accepting these Terms to whom the Services will be provided and who is responsible for providing Authorization to HACKRATE on the HackGate platform.
Client Materials: any materials, equipment, documents and other property, including intellectual property of the Client provided by the Client or Client Users to HACKRATE during the course of the performance of the Services.
Services: the HackGate Gateway and the related services, such as solution customization, reporting, consultancy provided by HACKRATE to the Client under the Agreement.
Third-Party: any person other than HACKRATE, the Client or their Affiliates.
Third-Party Systems: any IT system (including related data) that is not under the sole control of the Client. Accessing, monitoring, intercepting and/or recording both stored and/or live business or private communications may be a criminal offence and the Client and Client Users must refrain from such actions.
User: the user of the Client’s Environment, under the Client’s or its Affiliate’s sole control and supervision.
2. BASIS OF CONTRACT AND REGISTRATION
2.1 HACKRATE provides the Services to Client based on these Terms and these Terms shall govern the relationship between the Parties regarding the provision of the Services to the exclusion of any other terms and conditions which the Client may seek to impose or incorporate or which may be implied from trade usage, custom, practice or course of dealing.
2.2 Client shall warrant that its authorized Users (including Affiliates’ Users) continuously abide by these Terms.
2.3 Client agrees to register a HackGate Account for the use of the Services and to maintain its HackGate Account up-to date, accurate and in good standing and undertake to take the identity verification process if it is deemed any time to be necessary by HACKRATE.
2.4 HACKRATE reserves the right to monitor and check the use of the HackGate Account and any User activity on the HackGate platform.
3. SERVICES
3.1 The Client may use the Services during the Active Period to monitor and analyse the Client’s network traffic up to Client’s available HackGate Credits solely for the Client’s own business purposes and those of its Affiliates, if any, and to use the Services. Client shall not use the Services, or any portion thereof, for the benefit of any Third-Party or in any manner not permitted by these Terms.
3.2 HACKRATE provides the HackGate admin platform and the HackGate Gateway as a proxy service to authenticate Users, store and process log files and prepare reports. Client may configure authentication settings for its Users and access reports on the HackGate admin platform.
3.3 If agreed upon with the Client, HACKRATE may provide customization and consultancy services as ancillary Services to Client including, but not limited to troubleshooting, technical support, proxy and firewall configuration.
3.4 Services include Third-Party services only if such services are mutually agreed by HACKRATE and the Client. Notwithstanding anything to the contrary in the Terms, the Third-Party services will only be provided to Client by the Third-Party services provider. HACKRATE is not responsible for the Third-Party services and makes no warranty or representation with respect to such Third-Party services, including fitness for a particular purpose.
4. HACKGATE CREDITS
4.1 HackGate Credit can only be purchased by the Client via the HackGate admin platform and can only be used to purchase HackGate Services and other ancillary Services specifically agreed with HACKRATE.
4.2 The Client can purchase HackGate Credits for the list price indicated on the HackGate admin platform at the time of purchase. HackGate Credits are non-refundable and cannot be redeemed. HackGate shall not reimburse, compensate or otherwise provide any payments regarding the use and unused HackGate Credits.
4.3 One HackGate Credit is valid for one day of use the Services on one IT asset in the Client’s Environment during the Active Period. HACKRATE shall measure the use of Services on a per minute basis.
4.4 The Client can check its current HackGate Credit balance on the HackGate admin platform.
5. HACKRATE’S OBLIGATIONS
5.1 In providing the HackGate Gateway and the Services to the Client, HACKRATE shall
a) Provide and make available the HackGate Gateway “as-is” and if applicable, customize it to the Client’s Environment as agreed in an ancillary Service agreement with HACKRATE; HACKRATE undertakes that HACKRATE shall start any customization within 2 business days from the date of concluding the Agreement;
b) secure and make available connection via the HackGate Gateway to the target IT system or asset defined by the Client in the Environment;
c) prepare a results report;
d) store raw monitoring data captured during the Client’s use of the HackGate Gateway;
e) provide, if applicable and as agreed between the Parties further ancillary Services to the Client described in Clause 3;
f) co-operate with the Client in all matters relating to the use of the HackGate Gateway under the Agreement;
g) use commercially reasonable efforts to provide that the HackGate proxy shall have at least a yearly uptime percentage of 99.9%.
6. CLIENT’S OBLIGATIONS
6.1 The Client shall:
a) use the Services only within the Active Period;
b) respond without delay to HACKRATE’s reasonable requests for information and documents, including the ownership of the Environment, the existence of licenses, permission and consents regarding the monitoring, intercepting, recording and analysing network traffic going through the HackGate Gateway;
c) comply with HACKRATE’s reasonable instructions, guidelines and directions in relation to the use of the HackGate Gateway (including guidelines in relation to data security and access) and the Services;
d) satisfy the conditions (if any) to be fulfilled by the Client for it to receive and use the Services; Client shall inform and obtain every consent, approval and permission from all of its employees, business partners, users having access to the Environment about the monitoring, intercepting, recording and analysing network traffic going through the HackGate Gateway.
e) comply with its obligations and warranties under this Agreement, including any payment obligation agreed between HACKRATE and the Client;
f) obtain, maintain and procure all necessary licences, permissions and consents which may be required for the use of the HackGate Gateway and the Services before the date on which the Services are to start, and obtain explicit authorization to record, intercept, monitor and analyse network traffic going through the HackGate Gateway;
g) exclude any Third-Party Systems from the Environment and shall not list URLs, systems and assets that are not under the sole control of the Client or its Affiliates;
h) provide reasonable notice to HACKRATE regarding any modification or change in the Environment 30 days prior to making any relevant modifications or changes, unless HACKRATE approves such changes;
i) provide Authorization for dedicated HACKRATE staff (including employees and contractors) to perform the Services in the Environment and to record, intercept, monitor and analyse network traffic going through the HackGate Gateway;
j) provide a general authorisation for its authorized Users to act within the boundaries of the Environment and within the Active Period and the HackGate Services.
6.2 If HACKRATE’s performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default), then
a) without limiting or affecting any other right or remedy available to it, HACKRATE shall have the right to suspend performance of the Services or the provision of the HackGate Gateway until the Client remedies the Client Default, and to rely on the Client Default to relieve itself from the performance of any of its obligations; in each case to the extent the Client Default prevents or delays HACKRATE’s performance of any of its obligations;
b) HACKRATE shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from HACKRATE’s failure or delay to perform any of its obligations as set out in Clause 5.1; and
c) the Client shall reimburse HACKRATE on written demand for any costs or losses sustained or incurred by HACKRATE arising directly or indirectly from the Client Default.
7. ACCEPTABLE USE OF THE SERVICES
7.1 Unless approved by HACKRATE in written form, Client warrants that during the course of the use of the Services Client and Client’s User shall refrain from and shall not perform any activities that,
a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
b) facilitates any illegal activity;
c) depicts sexually explicit images;
d) promotes unlawful violence;
e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability;
f) stores, distributes or transmits any viruses or malware, or
g) is otherwise illegal or causes personal injury or damage to property.
7.2 HACKRATE reserves the right, without liability or prejudice to its other rights to the Client and the Client’s User, to disable the Client’s access to HACKRATE’s Services that breaches the provisions of this Clause 7.
7.3 The Client and the Client’s User shall not:
a) perform any activities that is not explicitly authorized; or
b) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under these Terms:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the HackGate Gateway in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the HackGate Gateway; or
c) access all or any part of the Services, including the HackGate Gateway in order to build a product or service which competes with the Services, including the HackGate Gateway; or
d) use any Third-Party services that is not expressly allowed or authorized by the Client or HACKRATE for the performance of any activity in the Environment; or
e) access, monitor, intercept and/or record both stored and/or live business or private communications in the Environment and/or Third-Party Systems that is not expressly allowed by the Client or HACKRATE;
f) subject to license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the HackGate Gateway and/or the Services available to any Third Party without HACKRATE’s explicit and prior consent, or
g) attempt to obtain, or assist Third Parties in obtaining, access to the HackGate Gateway and/or the Services, other than as provided under these Terms; or
h) introduce or permit the introduction of any non-controllable attack, virus or vulnerability into HACKRATE’s and/or the Client’s network and information systems.
7.4 Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services.
8. WARRANTIES AND DISCLAIMERS
8.1 For the duration of the Terms, HACKRATE warrants that:
a) it has the full power and authority to enter into these Terms;
b) it has obtained and will continue to hold all necessary licences, permits and agreements required for the use of the HackGate Gateway and the exercise by the Client of the rights granted by HACKRATE under these Terms; and
c) the use of the HackGate Gateway by the Client as permitted by these Terms does not infringe any Third-Party Intellectual Property Rights.
8.2 For the duration of the Terms, the Client warrants that:
a) it has the full power and authority to enter into these Terms on its behalf and on behalf of its Affiliates, if those Affiliates also rely on the Services;
b) it has obtained and will continue to hold or procure all necessary licences, consents, permits and agreements (collectively “Authorizations”) required for the performance of its obligations and HACKRATE to exercise its rights granted by the Client under these Terms; Client provides written proof of such Authorizations to HACKRATE upon request; and
c) the use of the Client Materials by HACKRATE as permitted by these Terms do not infringe any Third-Party Intellectual Property Rights; and
d) Client's use of the Services does not violate any law, or disrupt, compromise, abuse or access any data of other persons. When carrying out any of the activities connected with the Services, including any instructions or information provided to or consent, permissions or approval obtain from the Users, the Client must abide the law. There may be additional restrictions depending upon applicable local laws and the Client agrees to comply with all these applicable local requirements and rights of Third Parties.
8.3 The Client acknowledges that:
a) The HackGate Gateway is “as is” and “as available”, therefore, any use of the HackGate Gateway and the Services by the Client is at its sole risk. HACKRATE does not warrant that the Client’s use of the Services will be uninterrupted or error-free and that the Services and/or the information obtained by the Client through the Services will meet the Client’s requirements. HACKRATE is not responsible for any damage or harm resulting from a Client’s communications or interactions with Users or other Clients, either through the Services or otherwise. HACKRATE is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet, and Client acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
b) Any use of or reliance on any Services that Client receives is at Client’s own risk. HACKRATE does not endorse, represent, or guarantee the completeness, truthfulness, accuracy, or reliability of any information in the Services. HACKRATE will not be liable for any errors or omissions or any loss or damage of any kind, incurred as a result of the use of the Services.
c) Unless otherwise expressly agreed to in writing by HACKRATE, these Terms shall not prevent HACKRATE from entering into similar agreements with Third Parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these Terms.
8.4 In light of the Client’s acknowledgements under this Clause 8, HACKRATE does not make any warranty or representation that the use of the Services by the Client which involves the use of such indicative and/or predictive systems or data models or techniques will achieve any particular result for the Client and the Client acknowledges that the Services are for informational purposes only and not intended to be used as the sole basis for any business decision made by the Client.
9. INDEMNITY
9.1 The Client will indemnify, defend, and hold harmless HACKRATE and its officers, directors, employees, and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of a Third-Party claim arising from (i) Client Materials or any data shared with HACKRATE that infringe upon Intellectual Property Rights (including a patent, copyright, trademark, or trade secret) of a Third-Party, or (ii) the Client’s use of the Services, in violation of any applicable regulatory requirements.
9.2 HACKRATE will indemnify, defend, and hold harmless the Client and its officers, directors, employees, and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of a Third-Party claim that the Services infringe Intellectual Property Rights (including a patent, copyright, trademark, or trade secret) of a Third-Party, provided that HACKRATE shall not be responsible for any such claim to the extent arising out of or relating to any Client Materials or any data supplied by Client to HACKRATE.
9.3 The indemnity in Clause 9 is given on condition that the indemnified Party:
a) notifies the indemnifying Party promptly and in any event no later than 30 days after becoming aware of any matter or claim to which the indemnity might relate;
b) does not make any admission or settlement in respect of such matter or claim without the prior consent of the indemnifying Party (such consent not to be unreasonably withheld or delayed); and
c) allows the indemnifying Party, where appropriate, to appoint legal advisers of its choice and to conduct and/or settle negotiations and/or proceedings relating to such matter or claim, and the indemnified Party shall comply with the indemnifying Party’s reasonable requests in the conduct of any such negotiations and/or proceedings.
9.4 The indemnified Party shall give prompt written notice of all claims for which indemnity is sought and shall cooperate in defending against such claims, at the expense of the indemnifying Party. The indemnifying Party shall conduct and have sole control of the defence and settlement of any claim for which it has agreed to provide indemnification; provided that the indemnified Party shall have the right to provide for its separate defence at its own expense.
10. COMPLIANCE
10.1 Each Party undertakes to the other that, in connection with HACKRATE’s provision or the Client’s use of the Services (as appropriate), it will at all times comply with all applicable legislation, regulations, and other rules having equivalent force including the Data Protection Legislation and any subordinate or associated regulations.
10.2 HACKRATE shall not be required to vary, amend and/or enhance the Services as a result of the provisions of Clause 10 other than where either specifically agreed with the Client or where HACKRATE, in its reasonable opinion, considers that such variation, amendment and/or enhancement is fundamental to the continued use of the Services by its Clients generally.
10.3 If as a result of any changes in any legislation, regulations, codes or other rules having equivalent force (including any reasonable interpretation thereof), HACKRATE considers in its reasonable opinion that it is no longer desirable or practicable for HACKRATE to continue to provide the Services at all or in accordance with these Terms, HACKRATE shall be entitled to do one of the following on giving one months’ prior notice to the Client:
a) modify the affected Services as necessary to accommodate such changes; or
b) terminate the Agreement in respect of those Services which are affected by such changes (without liability).
10.4 Neither Party shall export, directly or indirectly, any technical data acquired from the other Party under these Terms (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval. Each Party undertakes:
a) to contractually oblige any Third-Party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and
b) if requested, to provide the other Party with any reasonable assistance, at the reasonable cost of the other Party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.
11. CONFIDENTIALITY
11.1 Each Party shall, in respect of the Confidential Information for which it is the recipient:
a) keep the Confidential Information strictly confidential and not disclose, directly or indirectly, any part of such Confidential Information to any person except as permitted by, or as required for the performance of the recipient’s obligations under, these Terms between HACKRATE and the Client;
b) take all reasonable steps to prevent unauthorised access to the Confidential Information;
c) not use the Confidential Information other than for the purposes set out in these Terms; and
d) not copy, reduce to writing or otherwise record the Confidential Information except as strictly necessary for the purposes set out in these Terms. Any such copies, reductions to writing and records shall be the property of the disclosing Party.
11.2 Subject to Clause 11.1, the Parties may disclose the Confidential Information to, and allow its use in accordance with these Terms by, the following:
a) employees and officers of the recipient who necessarily require it as a consequence of the performance of the recipient’s obligations under the Agreement;
b) the recipient’s auditors and professional advisors solely for the purposes of providing professional advice and any other persons or bodies having a legal right or duty to have access to, or knowledge of, the Confidential Information in connection with the business of the recipient; and
c) in the case of HACKRATE being the recipient, agents and sub-contractors of HACKRATE who necessarily require it as a consequence of the performance of HACKRATE’s obligations under these Terms.
11.3 As a condition of the rights set out in Clause 11.2 the Party wishing to exercise the rights must:
a) ensure that any Party to whom it discloses Confidential Information is under an obligation of confidentiality in relation to such Confidential Information; and
b) procure that such persons observe the restrictions in this Clause 11.1.
11.4 The restrictions in Clause 11.1 do not apply to any information to the extent that it:
a) is or comes within the public domain other than through a breach of Clause 11.1; or
b) is in the recipient’s possession (with full right to disclose) before receiving it from the other Party; or
c) is lawfully received from a Third-Party (with full right to disclose); or
d) is independently developed by the recipient without access to or use of the Confidential Information; or
e) is required to be disclosed by law, any securities exchange, court order or by other authority of competent jurisdiction or any regulatory or government authority to which the receiving Party is subject provided that, so far as it is lawful to do so, the receiving Party shall take into account the reasonable requests of the disclosing Party in relation to the timing and content of such disclosure.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 All Intellectual Property Rights relative to the Services will remain vested in HACKRATE (or its relevant licensors) and to the extent that any rights in such materials and data vest in the Client by operation of law, the Client hereby assigns (by way of present and future assignment) such rights to HACKRATE. The Client will notify HACKRATE promptly upon becoming aware of any unauthorised use of Intellectual Property Rights relative to the Services.
12.2 All Intellectual Property Rights in the data provided by the Client Materials and the Environment will remain vested in the Client (or its relevant licensors) and to the extent that any rights in such materials vest in HACKRATE by operation of law, HACKRATE hereby assigns (by way of present and future assignment) such rights to the Client.
12.3 The Client grants or procures to HACKRATE a fully paid-up, non-exclusive, royalty-free non-transferable license to copy and modify any Client Materials provided by the Client to HACKRATE for the purpose of providing the Services to the Client. Client acknowledges and agrees that it shall not acquire or claim any title to any of HACKRATE’s (or its relevant licensors’) Intellectual Property Rights by virtue of the rights granted to the Client under these Terms or through its use of HACKRATE’s (or its relevant licensors’) Intellectual Property Rights and further agrees that it will not, at any time, do, or omit to do, anything which is likely to prejudice HACKRATE’s or its licensors’ ownership of such Intellectual Property Rights.
12.4 Client authorizes HACKRATE to aggregate information from the use of the Services (“HackGate Data”). Provided that HackGate Data does not identify individual Clients, Client hereby agrees and authorizes HACKRATE in full extent permitted by law that HACKRATE may disclose, dispose or sell HackGate Data in an aggregated or anonymized form. To the extent permitted by applicable law, Client shall grant or procure the grant to HACKRATE a worldwide, irrevocable, perpetual, sub-licensable, transferable and royalty free licence to use, analyse, host, disclose, store, reproduce, distribute and create derivative works of HackGate Data for the purpose of advertising, marketing, operating, promoting, improving and providing the Services; as well as for the purposes of the advertising, marketing, promotion, of the Services, even if Client stops using the Services.
12.5 HACKRATE acknowledges and agrees that it shall not acquire or claim any title to any of the Client’s (or its relevant licensors’) Intellectual Property Rights by virtue of the rights granted to HACKRATE under these Terms or through its use of the Client’s (or its relevant licensors’) Intellectual Property Rights and agrees that it will not, at any time, do, or omit to do, anything which is likely to prejudice the Client’s or its licensors’ ownership of such Intellectual Property Rights.
13. LIMITS ON LIABILITY
13.1 HACKRATE’s liability to the Client in respect of any claims for the damage to or loss of tangible property (excluding claims for loss or corruption of, or damage to, data contained on any tangible media) shall be limited to the amount equivalent to fees paid and/or payable.
13.2 Subject to Clauses 13.1, 13.4, 13.5, 13.6, 13.7 and 13.8, HACKRATE’s liability to the Client per claim or series of claims arising from any one incident in respect of any claims arising (whether in contract, negligence, for breach of statutory duty or under any indemnity or otherwise) arising out of or in connection with the performance of the Services shall be limited to the amount of fees paid by the Client during the one-year period immediately preceding the date of the particular incident giving rise to liability.
13.3 The Client shall:
a) notify HACKRATE in writing as soon as possible after becoming aware of any matter giving rise to or, in the Client's reasonable opinion, is likely to give rise to liability under Clause 13.2, allowing HACKRATE to assess and, if applicable, mitigate the circumstances giving rise to any such liability; and
b) use reasonable endeavours to mitigate any circumstances under its control giving rise to any potential liability under Clause 13.2.
13.4 The limitations in Clause 13.2 shall not apply to the indemnity under Clause 9.2 given by HACKRATE in respect of Third-Party claims made against the Client for infringement of Intellectual Property Rights.
13.5 Neither Party shall be liable (including under any indemnity given in these Terms) for and to the extent that any proceedings, actions, claims or demands arise as a result of the failure of any product or services supplied by a Third-Party directly to the Party making the claim.
13.6 HACKRATE shall not be liable (including under any indemnity given in these Terms) for and to the extent that any proceedings, actions, claims or demands arise as a result of:
a) any modification, variation or amendment of the Services or any part of them other than in accordance with these Terms or as directed by HACKRATE; or
b) use of the Services or any part of them in combination with any unapproved software, equipment or materials.
13.7 Subject to Clause 13.8, HACKRATE shall not be liable (whether in contract, negligence, for breach of statutory duty or under any indemnity or otherwise) for:
a) any indirect or consequential loss;
b) the following types of financial loss of the Client: loss of profits; loss of earnings; loss of business or goodwill; business interruption; regardless of whether direct or indirect and even if HACKRATE had notice of the possibility of the Client incurring such losses; or
c) the following types of anticipated or incidental losses of the Client: loss of anticipated savings; increase in bad debt; loss of sales or revenue; failure to reduce bad debt; reduction in the value of an asset; regardless of whether direct or indirect and even if HACKRATE had notice of the possibility of the Client incurring such losses.
13.8 Nothing in these Terms shall limit or exclude HACKRATE's liability to the Client for:
a) for personal injury or death resulting from HACKRATE’s negligence or that of its employees, agents and/or sub-contractors;
b) for any matter which it would be illegal for HACKRATE to exclude and/or limit, or attempt to exclude and/or limit, its liability; or
c) for HACKRATE’s fraud or fraudulent misrepresentation.
14. TERMINATION
14.1 Either Party shall be entitled to terminate these Terms immediately by serving written notice on the other Party in the following circumstances:
a) if the other Party commits a material breach of any of its obligations under these Terms which is not capable of remedy; or
b) if the other Party commits a material breach of any of its obligations under these Terms which is not remedied within 30 days after receipt of a notice from the Party not in breach specifying the breach, requiring its remedy and making clear that failure to remedy may result in termination.
14.2 Termination of these Terms (or of any element of it) shall not affect any rights, obligations or liabilities of either Party:
a) which have accrued before termination; or
b) which are intended to continue to have effect beyond termination.
15. DATA PROTECTION
15.1 Parties assessed their positions and Parties agree that while the main object of the Services is not to process personal data, HACKRATE shall qualify as a data processor and therefore the Parties enter into the data processing agreement attached to these Terms as Appendix II (“DPA”). In case of any conflicts between these Terms and the DPA, the provisions of the DPA shall prevail regarding data protection related issues.
16. VARIATIONS
16.1 Variations of these Terms shall not be effective unless recorded in writing signed by the Parties’ authorised signatories; variations in electronic form shall not count as variations recorded in writing.
17. FORCE MAJEURE
17.1 Neither Party will be liable for any delay or failure in the performance of its obligations under these Terms if such delay or failure is due to an event of Force Majeure.
17.2 If Force Majeure occurs, the delaying Party shall be entitled to an extension of time for so long as the Force Majeure persists on condition that:
a) it promptly notifies the other Party (“unaffected Party”) of the occurrence of the Force Majeure;
b) it discusses with the unaffected Party possible action to be taken to overcome the effect of the Force Majeure; and
c) it uses all reasonable endeavours to overcome the Force Majeure.
17.3 If the Force Majeure persists for a period of 30 days or more, the Party not claiming Force Majeure may give notice to the other Party to terminate these Terms with effect from a date specified in the notice without penalty or other liability (except for any liability on the Client to pay accrued fees).
18. ASSIGNMENT
18.1 Subject to Clause 18.2, neither Party may assign, transfer, charge or deal in any other manner with these Terms or any of its rights under it, or purport to do any of these things, or sub-contract any or all of its obligations under these Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed).
18.2 HACKRATE shall be entitled to sub-contract any or all of its obligations under these Terms to a sub-contractor, without obtaining prior consent, but by doing so HACKRATE shall be responsible for the acts and omissions of the sub-contractor to the same extent as if it had carried out the obligations itself pursuant to these Terms.
19. WAIVER
19.1 If either Party fails to exercise a right or remedy that it has or which arises in relation to an incident in connection with these Terms either immediately or at all, such failure shall not prevent that Party from exercising that right or remedy subsequently in respect of that or any other incident.
19.2 A waiver of any breach or provision of these Terms shall only be effective if it is made in writing and signed by the authorised signatory of the Party who is waiving the breach or provision. Any waiver of a breach of any term of these Terms shall not be deemed a waiver of any subsequent breach and shall not affect the enforceability of any other term of these Terms.
20. SEVERANCE
20.1 If any part of these Terms is found to be invalid, unlawful or unenforceable by any court or other competent body, such invalidity or unenforceability shall not affect the validity, lawfulness or enforceability of any other provisions of these Terms and such other provisions shall remain in full force and effect.
20.2 If any part of these Terms is found to be invalid or unenforceable by any court or other competent body but would be valid or enforceable if some parts of the provision were deleted, the provision in question shall be treated as having been amended as necessary to make it valid and enforceable.
20.3 In the circumstances referred to in Clause 20.1 and if Clause 20.2 does not apply, the Parties agree to attempt to substitute for any invalid or unenforceable provision a valid and enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.
21. NO PARTNERSHIP
21.1 Nothing in these Terms is intended to, or shall, operate to:
a) create a partnership or joint venture of any kind between the Client and HACKRATE;
b) authorise either Party to act as agent for the other Party; or
c) authorise either Party to act in the name or on behalf of, or otherwise to bind, the other Party in any way.
22. NOTICES
22.1 Any notices to be sent by one Party to the other in connection with these Terms except for the service of court proceedings shall be in writing and shall be delivered personally or sent by special delivery post (or equivalent service offered by the postal service from time to time) or by e-mail to the addresses of each Party as notified from time to time.
22.2 Notices shall be deemed to have been duly given as follows:
a) if delivered personally, upon delivery;
b) if sent by post, two clear days after the date of posting; or
c) if sent by email, only upon acknowledgment of the email by the recipient (not including out of office messages) provided that if such acknowledgment has not been received by the sender within 2 working days, the notice shall be deemed invalid.
22.3 If either Party notifies the other Party of a change to its details for the purposes of Clause 23.1, such notification shall only be effective on the date specified in such notice or seven days after notice is given, whichever is later.
23. LAW, JURISDICTION AND LANGUAGE
23.1 These Terms and all matters arising out of it shall be governed by, and construed in accordance with, the laws of Hungary.
23.2 Each Party irrevocably agrees that that all disputes arising from or in connection with these Terms, its breach, termination, validity or interpretation, shall be exclusively decided by the Court of Arbitration attached to the Hungarian Chamber of Commerce and Industry, Budapest in accordance with its own Rules of Proceedings. The number of arbitrators shall be three. The language to be used in the arbitral proceedings shall be English. The foregoing shall not preclude HACKRATE from filing court action or seeking any injunctive relief or protective measures in any competent court for the protection of its Intellectual Property Rights under the general rules or to file a lawsuit or take action before the courts located at Client’s place of establishment or at any jurisdiction for the place of a tort.