Temenos Software Sandbox Agreement
18 May 2021
This is a legal agreement setting out the legal terms that govern use of the sandbox provided Temenos Headquarters SA of 2 rue de L’Ecole-de-Chimie, 1205 Geneva, Switzerland (“Temenos”) under this Agreement.
Temenos makes available certain Temenos cloud services and/or software product(s) via a web enabled sandbox for the limited purposes of evaluating such services and/or software under the terms and conditions set out in this Agreement. Any use of such services or software for any further purposes or on different terms will require a further agreement.
By clicking a box indicating acceptance or using the Cloud Services, an individual accepts the terms of this Agreement on behalf of a company or other legal entity. Such individual represents that they have full legal authority to accept the terms and conditions of this Agreement on behalf of such company or other legal entity, and to legally bind such company or other legal entity. If such individual does not have such authority or does not agree with the terms of the Agreement, the Cloud Services may not be used. The term “Company” refers to the company or entity represented by such individual. Temenos and Company are together referred to in this Agreement as the “Parties”.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, it is agreed as follows:
1.1. Affiliate means with respect to Temenos: any entity controlled by Temenos, controlling Temenos, or under common control with Temenos and “control” shall exist through direct ownership of more than fifty per cent (50%) of the nominal value of the issued equity share capital or of more than fifty per cent (50%) of the shares entitling the holders to vote for the election of directors or persons performing similar functions or to rights by any other means to elect or appoint directors or persons who collectively may exercise such control or through indirect ownership of all of the issued equity share capital.
1.2. Cloud Services means the Software provided as a service via a web based system as a sandbox as further described in the Temenos Banking Cloud site or its documentation together with any technical limitations and requirements relating to the access to such service. The Cloud Services utilise Microsoft Azure which is public cloud.
1.3. Company Data means any and all data and information including text and image files, software and any other materials submitted by or on behalf of the Company to the Software through the use or access of the Cloud Services.
1.4. End Date means twenty one (21) days after the Start Date.
1.5. Intellectual Property Rights means all current and future copyrights, patents, trade marks (whether or not registered), or rights in databases, inventions, or trade secrets, know-how, rights in designs, topographies, trade and business names, domain names, and all other intellectual property rights and applications for any of those rights (where such applications can be made) capable of protection in any relevant jurisdiction.
1.6. Personal Data means any information or data relating to an identified or identifiable natural person.
1.7. Purpose means the limited purpose for which the Company may use the Cloud Services for internal business purpose of evaluation and testing of the Software.
1.8. Software means (i) the Temenos software accessed through the Cloud Services, (ii) any mobile application or other ancillary software supplied by Temenos for use with the Cloud Services; and (iii) any interfaces as supplied by Temenos.
1.9. Start Date means the date on which the Cloud Services are first made available to Company by Temenos for the Purpose.
1.10. User means an individual who is authorised by the Company to access the Cloud Services.
2. Right to Access the Software and the Cloud Services
2.1. If Temenos accepts Company’s request for Cloud Services, Temenos will send Company an invitation with instructions to access to such Cloud Services. Temenos reserves the right to decline Company’s request for a sandbox at its sole discretion. Temenos also reserves the sole right to decide if an application is accepted or not based on our reasonable interpretation of economic sanctions and the Temenos Sanctions Policy.
2.2. Subject to Clause 2.1, Temenos will provide access to the Company to the Cloud Services on a non-exclusive, non-transferable basis solely for the Purpose. Any use of the Cloud Services or the Software for any other purpose including any commercial or production uses is explicitly prohibited.
2.3. The Company does not acquire any right or license to the Cloud Services or any underlying software, interfaces, Temenos trade marks including the Software in excess of the scope or duration of the Cloud Services stated in this Agreement. The Company will not receive a copy of the Software nor shall it by any method attempt or permit anyone else to attempt to modify, copy, reverse engineer, reverse compile or disassemble the Software or its underlying code.
2.4. The Company shall only permit up to five Users to access the Cloud Services and shall not permit any other user or other third parties to access the Cloud Services. A User shall only be an employee or a subcontractor of the Company. The Company is responsible for all of its Users’ acts and omissions and the Company shall ensure that the Users are made aware of the terms of this Agreement.
2.5. The Company is responsible for ensuring it shall maintain an internet connection allowing it to connect to the Cloud Services, up to date internet browsers and anti-virus software. Temenos does not provide any close of business processing, maintenance, implementation services or any other services as part of this Agreement. The Company must comply with any technical limitations relating to the Cloud Services notified to it by Temenos from time to time and the Company shall not employ any workarounds. Limited support services may be provided by Temenos at its sole discretion.
2.6. If Temenos makes available any Software available for download for use with the Cloud Services, Temenos grants to the Company a limited, non-exclusive, royalty-free, non-transferable license to use and reproduce Software solely for the Purpose in connection with the Company’s use of the Cloud Services during the Term.
2.7. Save to the extent expressly permitted by applicable law, the Company shall not: (i) permit any third party who is not a User to access the Cloud Services except as permitted in this Agreement; (ii) create derivative works based on the Cloud Services and/or the Software; (iii) copy, frame or mirror any part or content of the Cloud Services; (iv) reverse engineer the Cloud Services and /or the Software or any part thereof; or (v) access the Cloud Services and/or Software in order to: (a) build or advise in relation to a competitive product or service; or (b) copy any features, functions or graphics of the Cloud Services and/or the Software; or (c) perform or disclose any benchmark, security testing or performance testing of the Cloud Services and/or the Software.
3. Non-Disclosure and Intellectual Property Rights
3.1. The Company acknowledges that (a) the Software, the Cloud Services and all related documentation and specifications (b) the terms and conditions of this Agreement; and (c) the results and feedback from any test or evaluation are all confidential information (“Confidential Information”) which contain highly confidential, secret and valuable information of Temenos and its Affiliates. The Company agrees that it shall not sell, transfer, publish, disclose, display or otherwise make available to third parties the Confidential Information, or any other proprietary information of Temenos and its Affiliates.
3.2. Temenos shall be free to exploit any feedback or suggestions provided by the Company in relation to its testing and trialling of the Cloud Services and the Software. Temenos may analyze statistics and other information related to the performance, operation and use of the Cloud Services and use support data in aggregated form for security and operations management and for statistical analysis to improve the solutions offered by Temenos.
3.3. The Company recognises that the Software, Cloud Service and all documentation and specifications and any reproductions, corrections, updates, modifications, developments and derivative works based upon these are the Intellectual Property Rights of Temenos, its Affiliates and its suppliers.
3.4. The Company shall promptly notify Temenos if it becomes aware of any breach of confidentiality and security relating to the Cloud Services or other Confidential Information and give Temenos all reasonable assistance in connection with Temenos’ investigation of same.
3.5. Except for the limited rights expressly granted to the Company hereunder, Temenos reserves all Intellectual Property Rights, title and interest in and to the Cloud Services and the Software, the underlying software programs and all of its portions, reproductions, and modifications. No rights are granted to the Company hereunder other than as expressly set forth in this Agreement.
4. Data and Security
4.1. As the Cloud Services are provided for the limited Purpose only, the Company shall not submit, store, capture, transmit or process any of its confidential or business sensitive data or materials or Personal Data to the Cloud Services. Temenos has no responsibility for the accuracy, quality, integrity, legality or reliability of Company Data. The Company shall take all measures necessary to ensure that Personal Data is not submitted by or on behalf of the Company to Temenos. Temenos shall only process Company Data for the provision of the Cloud Services to the Company. The Company consents to Temenos and/or its designated Affiliates to use, process, transmit and subcontract the processing of the Company Data for any periods during which the Cloud Services are being made available to the Company.
4.2. In the event of submission of Personal Data to Temenos (accidental or otherwise), the Company shall delete such Personal Data immediately. If any Personal Data is processed through the use of the Cloud Services by the Company, (i) the Company shall at all times remain the data controller of and responsible for such Personal Data for the purposes of the Cloud Services; (ii) Temenos and its suppliers are data processors or sub processors of such Personal Data only for the purposes of provision of the Cloud Services; and (iii) both parties shall at all times comply with the applicable data protection laws. If the Company is not able to delete any Personal data submitted, Temenos shall delete such Personal Data without undue delay upon receipt of the written instruction of the Company. Additional fees may be charged for such services.
4.3. Acceptable Use Policy. The Company shall use the Cloud Services solely for the Purpose and which shall only ever be for its own internal business purposes. The Company and its Users shall not:
(i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Cloud Services available to any third party, other than to its Users;
(ii) use the Cloud Services in any way prohibited by law, regulation, governmental order or decree; to send spam or otherwise duplicative or unsolicited messages, or to distribute malware;
(iii) use the Cloud Services to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or which violates the privacy rights of individuals;
(iv) interfere with or disrupt the integrity or performance of the Cloud Services or the data contained therein; or
(v) attempt to gain unauthorized access to the Cloud Services or its related systems or networks.
4.4. The Company is responsible for identifying and approving which of its personnel may access the Cloud Service as Users, and controlling against unauthorized access by Users. The Company and each User are responsible for maintaining the confidentiality of usernames, passwords and user account information and the Company is responsible for any misuse and resulting harm caused by Users or by individuals misusing the usernames, passwords or user account information. The Company shall accept all patches, updates and bug fixes of the software system necessary for the proper function and security of the Cloud Services.
4.5. The Company shall comply with any additional security policy or requirements provided by Temenos. The Company indemnifies Temenos and its Affiliates for all costs, damages or other losses suffered by Temenos and its Affiliates from any violation of this Clause 4.
5.1. Where Company has been accepted for a free trial, Temenos will make the Cloud Services available on a free of charge basis under this Agreement until the End Date.
5.2. Any fees payable to Temenos will be as set out in a separate order form between the parties. Any payment obligations are non-cancellable, and fees paid are non-refundable. All amounts due under this Agreement from the Company to Temenos shall be invoiced by Temenos and paid in the currency specified in an applicable order form.
5.3. All fees shall be payable by the due date specified in the order form or if no due date is stated within thirty (30) days of the date of the invoice. The Company will pay the invoiced amounts without any deduction or withholding.
6.1. The Cloud Services, the Software and any related support services are provided on an “as is” and “as available” basis without warranty of any kind. Any use of the Cloud Services, Software and such support services is at the Company’s own discretion and risk. Temenos disclaims all warranties and conditions of any kind whether express or implied including but not limited to the implied warranties and conditions of merchantability, fitness for a particular purpose and non-infringement. Temenos’ aggregate and total liability towards the Company under this Agreement (howsoever arising) shall in no event exceed: (i) the total amount of fees paid by the Company to the Temenos; or (ii) in respect of a free trial where no fees are payable, $50 (Fifty US Dollars).
6.2. Temenos, its Affiliates and any suppliers shall not be liable to the Company under any theory of liability for any indirect, incidental, special, consequential or exemplary damages that may be incurred by the Company including any loss of data, data use, business, profits, revenue or business interruption, whether in tort or in contract, and whether Temenos or its representatives have been advised of or should have been aware of the possibility of such losses.
7. Term and Termination
7.1. The term of this Agreement shall begin on the signing by both parties of this Agreement. The Cloud Services shall be available from the Start Date and shall cease to be available on the End Date.
7.2. The Agreement shall expire on the End Date. Either party may terminate this Agreement by giving five days’ written notice to the other party. Upon expiry or termination of this Agreement, all rights of the Company to access the Cloud Services will immediately cease. If access to the Cloud Services continues beyond the End Date the terms of this Agreement shall continue to apply to use of the Cloud Services and Temenos may terminate such access immediately at any time. Temenos shall be under no obligation to maintain any Company Data stored within the Cloud Services (if any) and shall be entitled to delete all such Company Data in its systems or otherwise in its possession or under its control. The provisions of Clauses 3, 4 and 5 shall survive the termination of this Agreement.
7.3. This Agreement may also be immediately terminated by Temenos by suspending the Cloud Services if (i) the Company or its Users violate or attempt to violate the confidentiality or security of the Cloud Services which shall include any violation of the provisions set out in Clauses 3 and 4; or (ii) the Cloud Services are or are about to suffer a threat to security or functionality.
8. Entire Agreement
8.1. This instrument constitutes the complete and exclusive Agreement between the parties as to the subject matter and supersedes all previous agreements, negotiations, understandings and discussions of the parties. This Agreement may not be modified or altered except by a written instrument executed by both parties.
9. General Terms
9.1. The construction, validity and performance of this Agreement shall be governed exclusively by the laws of Switzerland and any dispute arising out of this Agreement shall be subject to the exclusive jurisdiction of the Geneva Courts.
9.2. Neither party may assign or transfer this Agreement, in whole or in part, to any person or entity without the prior written consent of the other party.
9.3. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between the Parties.
9.4. Each member of the group of companies of which Temenos is a part shall be third party beneficiaries to this Agreement and such companies shall be entitled to directly enforce and rely upon any provision of this Agreement that confers a benefit on or rights in favour of them. Other than this, no other person, or company shall be third party beneficiaries of this Agreement.