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PUBLIC AGREEMENT

supply of licenses for use and provision of services for access to the DevBase system

Last updated: March 01, 2024

1.       DEFINITION

• Access to the system – a set of works for installing the Software , its deployment and configuration.
• Softwareis a set of programs (both as a whole and their components), with the general name “DevBase”, as well as any -what is the documentation for its use when accessing the specified system.
• Programs (in the understanding of this agreement) is a set of instructions in the form of words, numbers, codes, diagrams, symbols or in any other form , expressed in a form suitable for reading by a computer, driving it to achieve a specific goal or result.
• Public offer - an offer by the Contractor addressed to any person (individual or legal) to conclude this Agreement with him.
• Customer - an individual or legal entity/individual entrepreneur who, under the terms of this Public Agreement, orders, pays for Services under this Agreement and bears full responsibility for its compliance with the terms of the Public Agreement and the implementation of the Public Agreement by its Authorized User. The Customer may act as a User of the Services or act in the interests of the User of the Services if he has the appropriate authority to do so in accordance with the law or the Public Agreement.
• Authorized User – an individual who, under the terms of this Public Agreement, is authorized by the Customer to use the Software paid for by the Customer under this Public Agreement, and to which the Customer has provided a login identifier (login and password), regardless of whether the Authorized User is actively using the Software or not. The Customer is solely responsible for the actions of its authorized users.
• Acceptance– the Customer’s full and unconditional consent to conclude this Public Agreement.
• License to use the Software/System Access - permission granting a non-exclusive proprietary right to use the Software within the framework of the rights and restrictions described in End User Licenses (EULA) are available at End User License (EULA) defines the terms of its use.
• Technical support - a list of services provided by the Contractor within the limits and volumes agreed upon by the Parties to ensure correction of errors in the Software, including information and consulting support Customer regarding the use of the Software.

• Executor's website - https://devbase.pro/

2.       SUBJECT OF THE PUBLIC AGREEMENT

• 2.1.   In the manner and under the conditions determined by this Public Agreement, the Contractor, including with the involvement of third parties, grants the Customer (1) a non-exclusive license to use the Software; (2) services for access to the DevBase system in the form of an Internet site; (3) filling and setting up the “DevBase” system (without territory restrictions in the manner and on the terms provided for by the current legislation of Ukraine and this Agreement) (hereinafter referred to as each separately or collectively “Services "), and the Customer undertakes to accept the Services provided, use (without the right to provide access to third parties) them for their functional purpose and timely pay the Contractor the cost of the Services provided. </ li>
• 2.2.   This Agreement is mixed within the meaning of Art. 628 of the Civil Code of Ukraine and includes elements of a license agreement and a service agreement.
• 2.3.   Under this Public Agreement, moral rights to the Software are not transferred. The Customer is granted a non-exclusive property right to use the Software, within the time limits determined by the Parties.
• 2.4.   Other rights not expressly provided for in this Agreement and the EULA are not transferred. The operating algorithms of the Software are a trade secret of the Contractor. Any use thereof or use of the Software in violation of the terms of the Public Agreement and/or EULA is considered a violation of the Contractor’s rights and is sufficient grounds for depriving the Customer of the rights granted under this Agreement.
• 2.5.   Services for technical support of the Software are not included in the subject of this Agreement, except in cases where a technical failure occurred on the part of the Contractor.
• 2.6.   All information of the Customer, which he stores and processes in the Software, is the property of the Customer.

3.       PROCEDURE FOR CONCLUSION OF A PUBLIC AGREEMENT

• 3.1.   The terms of the Public Agreement are the same for everyone.
• 3.2.   The Customer is obliged to familiarize himself with the terms of this Public Agreement before paying and starting to use the Services by him or the User.
• 3.3.   The Customer who (and) paid for the Services and/or (ii) received a login ID (login and password) system "DevBase"; (iii) has performed other conclusive actions, is considered to have accepted the Public Agreement and agrees to all the terms of this Public Agreement.
• 3.4.   To avoid any doubt, the Customer, by accepting the Public Agreement, agrees with the terms of provision of Services by the Contractor, with the quality of the Software and the terms of use of the DevBase system, defined in the EULA.
• 3.5.   Assignment (transfer) of the Customer's rights under the Public Agreement without the written consent of the Contractor is not permitted.

4.       COST OF SERVICES AND PAYMENT PROCEDURE

• 4.1.   The cost of access to the DevBase system (both as a whole and to its components) is determined based on the number of Authorized Users and the period of use of the Software in accordance with the current prices of the Contractor. The Customer pays the Contractor the cost of the Services in accordance with the terms of the Agreement and Appendices to this Public Agreement on the basis of invoices issued by the Contractor.
• 4.2. The cost of the Contractor's Services is determined as follows: (1) a non-exclusive license to use the software for one authorized user is 50.00 (fifty) US dollars monthly (subject to the requirements of clause 4.6 of this Public Agreement); (2) filling and setting up the DevBase system (in accordance with Appendix 2 of the EULA) costs 1000.00 (one thousand) US dollars (taking into account the requirements of clause 4.6 of this Public Agreement). The cost of services may differ due to the Parties agreeing on a different amount reflected in the relevant invoice and act.
• 4.3. The Customer undertakes to pay the amount indicated in the relevant invoice no later than within 10 (ten) days from the date of invoice. Otherwise, the account is considered invalid. Services are provided on the basis of advance payment. Payment date - the date the funds are credited to the Contractor's account.
• 4.4. When new Software options appear, beyond those that were determined by the conditions on the day the Customer purchased the Services. The Contractor, at its discretion, has the right to change the cost of the Services and additional payment for using the updated functionality; the Customer, in turn, has the right to disagree and terminate the contract.
• 4.5. When making payment, the Customer is obliged to indicate in the payment document the account number issued by the Contractor, which will allow identification of the paid Services.
• 4.6. The cost of the Services is set in US dollars. All payments under the Public Agreement are made in the national currency of Ukraine (according to the exchange rate for the sale of hryvnia to the US dollar to Privatbank Bank on the date of invoice, posted on the Internet resource page https://minfin.com.ua/company/privatbank/currency/) by non-cash payments. The Customer pays all bank and/or payment commissions independently.
• 4.7. The Parties agreed that the cost of the Services within the limits of continuous use (in the absence of disconnections due to late payment) is fixed and can be changed solely with the consent of the Parties, except in cases , defined in clause 4.4 of the Public Agreement. The change in the cost of services comes into force from the moment it is formalized by the Additional Agreement of the Parties.
• 4.8. In the event of termination of the Public Agreement at the initiative of the Customer in the manner prescribed by this Public Agreement, the Customer has the right to submit a letter of appeal for the return of the unused amount (the balance of funds for paid periods in future, counting from the next month following the date of termination). In this case, the Contractor returns the amount unused by the Customer within 10 (ten) working days to the Customer’s bank account specified in the application. To avoid any doubt, the Customer understands that in the event of (1) actual non-use by the Customer and/or User of the Services under a public contract; (2) due to reluctance to use the paid Services in the future; (3) in the absence of a letter of termination of the Agreement or a corresponding additional agreement and a letter of request for the return of the unused amount, the Services will be considered provided properly and in full.

5.       SEPARATE TERMS OF SERVICE

• 5.1.   The terms of use of the Software are defined in the EULA.
• 5.2.   After receiving payment, the Contractor undertakes to customize the Software to the Customer’s needs and provide the Customer with a login identifier (login and password) within 3 (three) business days. The Contractor stops providing the Services (taking into account the system activation time, which will be equal to the deactivation time) on the last day of the paid period.
• 5.3.   If the Contractor has not started providing the Services within the agreed time frame, the Customer has the right to refuse the services, notifying the Contractor in writing, and the Contractor is obliged to return the received advance payment under the terms of clause 4.8 of the Public Agreement. </ li>
• 5.4.   The Customer checks and tests the Services within 3 (three) working days from the beginning of their provision to ensure that there are no complaints or comments. In the future, the Customer accepts access to the DevBase system as the final option. If the Customer does not inspect, test and/or does not notify the Contractor of the claims, the Customer is deemed to have no claims and the Services are considered accepted and properly provided.
• 5.5. The Customer pre-selects the composition of services offered by the Contractor.
• 5.6. The documents certifying the provision of services by the Contractor are the act of provision of Services. The Contractor, within 10 (ten) working days from the date of provision of the Services (activation of the Software and Access Services), sends to the Customer a certificate of services provided in 2 copies. The Customer is obliged to sign it within 10 (ten) working days from the date of receipt of the Certificate and send one copy of the Certificate of Services provided to the Contractor or send his objections to the Contractor if the services do not comply with the terms of this Agreement or the documents provided for in this Agreement have not been added. The contractor corrects the deficiencies and resubmits the documents. If the Certificate of Services provided or motivated objections in writing are not provided to the Contractor within 10 (ten) working days, then the certificate signed by the Contractor is considered signed by both parties, and the Services are properly provided.

6.       RIGHTS AND OBLIGATIONS OF THE PARTIES

• 6.1. Responsibilities of the Contractor:
• 6.1.1. The Contractor undertakes to provide the Services provided in a timely and high-quality manner, in full this Agreement in the manner and on the terms specified in this Agreement.
• 6.1.2. Comply with the requirements of the legislation that applies, as well as comply with all necessary and reasonable steps to ensure that the Services are provided with due diligence and in accordance with professional standards to the satisfaction of the Customer.
• 6.1.3. Implement measures to protect the data of the Customer and Authorized Users stored in the Software . Maintain the Customer's trade secret, which became known to the Contractor during the execution of this Agreement.
• 6.1.4. Issue appropriate invoices at the Customer’s request. Form and provide the Customer with a Certificate of Services Rendered

• 6.2. The Contractor has the right:
• 6.2.1. Independently create elements of the Software determine the composition and functionality of the proposed Service. Change components of the Service for each individual Customer and/or User
• 6.2.2. Obtain, if necessary, appropriate explanations from Authorized Users who have been granted Customer access.
• 6.2.3. Reduce the volume of Services, suspend the provision of Services to the User or terminate the Agreement unilaterally in the event of violation by the User and/or Customer of the terms of this Public Agreement and/or EULA or the legislation of Ukraine.
• 6.2.4. Refuse the Customer to provide the Services and/or terminate the contract unilaterally if the Customer has a debt or lacks the technical ability to provide access to the Service.
• 6.2.5. Improve the Service. Use those acquired in the process of fulfilling this Public Agreement for use and presentation to potential clients through the Website or otherwise.
• 6.2.6. Involve third parties to fulfill the Public Agreement without prior consent from the Customer. Appoint persons responsible for the proper fulfillment of obligations under this Agreement.
• 6.2.7. Make changes to this Agreement by posting a new version of the Public Agreement on the Site.
• 6.2.8. Change the cost of the Services by notifying the Customer in advance (one calendar month) and/or by posting relevant information on the Site.

• 6.3. In order to properly fulfill the terms of this Public AgreementThe Customer undertakes:
• 6.3.1. Comply with the terms of the Public Agreement, EULA and additional instructions of the Contractor.
• 6.3.2. Pay for the Contractor’s services in the amount and within the time limits specified in the Public Agreement.
• 6.3.3. Promptly provide the Contractor with the documents, information, and materials necessary for the implementation of this Agreement.
• 6.3.4. Keep the Contractor's trade secrets, which became known to the Customer during the execution of this agreement.
• 6.3.5. Independently ensure for yourself and/or the User the availability of equipment to use the Service and access to the Internet
• 6.3.6. Independently monitor all changes to the Public Agreement on the Contractor’s website

• 6.4. The Customerhas the right:
• 6.4.1. Receive services in a timely manner and of proper quality. Demand from the Contractor the proper provision of services and monitor the Contractor’s compliance with the terms of this Agreement, express your comments.
• 6.4.2. Use the Software for your own business purposes, Receive information from the Contractor about the progress of the provision of Services, execution of orders in accordance with the terms of this Agreement.
• 6.4.3. If you receive improperly provided Services, notify the Contractor about this in writing and demand that the Contractor eliminate the identified deficiencies, terminate the contract and return the funds.

• 6.5. The customerdoes not have the right:
• 6.5.1. Create conditions that make it impossible for the Contractor to properly provide the Services.
• 6.5.2. Grant access to the Services to third parties, except Authorized Users.
• 6.5.3. Violate intellectual property rights in relation to objects to which the Customer and / or the User was granted access while using the Services.
• 6.5.4. Violate the rights of third parties by using the Service.
• 6.5.5. Interfere with the operation of equipment and/or cloud services used to provide Services by the Contractor, violate their integrity, make changes, modify the Software, etc.
• 6.5.6. Use the Software in ways other than those specified in the Public Agreement or EULA , as well as copy, sell and resell or provide access to the Services, unless the User has received such permission from the Contractor
• 6.5.7. Disseminate any false information that may negatively affect the Contractor’s business reputation .

• 6.6. The User uses the Contractor’s Services within the limits of the rights and obligations of the Customer. The Customer is responsible for the User's actions.

7.       WARRANTY, REPRESENTATIONS AND WARNINGS BEFORE USING ACCESS TO THE SERVER. RESPONSIBILITY

• 7.1.   Services are provided on an “AS IS” basis. The Customer acknowledges the functional limitations of the Software and confirms that they can be applied for its specific purpose within the functionality of the Software.
• 7.2.   Each Party hereby represents and warrants to the other Party that: (1) it has the necessary powers, licenses and permits to enter into and execute the Public Agreement; (2) the implementation of the Public Agreement has been authorized by each Party and meets its legal purposes; (3) the implementation of the Public Agreement will not lead to disagreement or violation of any product, instrument, Agreement or document to which any of the Parties may be a party.
• 7.3.   The parties assure that their cooperation within the framework of the Public Agreement does not violate the rights and legitimate interests of third parties, and also complies with the current legislation of Ukraine.
• 7.4.   The Contractor is not responsible for any losses (direct, indirect and incidental), including lost profits, arising as a result of a malfunction in the operation of the Software, as a result of its use or inability to use. The Contractor is not responsible for any actions or inactions of the Customer (and Authorized Users) and their consequences associated with the use of information obtained from the system, unless otherwise provided by law.
• 7.5.   If, when using the Program, system errors or gaps caused by the actions of the Contractor are discovered, the latter undertakes to take measures to correct them within a reasonable time.
• 7.6.   In the event of non-fulfillment or improper provision by the Contractor of Services under the Public Agreement or performance of other obligations, the Contractor's liability is limited to the amount of payments received from the Customer based on the price of the calendar month in which the violation occurred. Conditions The Parties are responsible in accordance with the current legislation of Ukraine.
• 7.7.   The Customer acknowledges that any trademarks, trade names, patents, models, designs, logos, copyrights and other intellectual property rights that are used, embodied in the Services and their documentation are the exclusive property of the Contractor. The Contractor remains the owner of the intellectual property associated with the process of creating the Services. Customer may not disassemble or reverse engineer the Software for any reason.
• 7.8.   If the Contractor, at its sole discretion, determines that the Customer has violated or attempted to violate these terms of the Public Agreement in the field of intellectual property and copyright rights of the Contractor, the Customer's access to receive the Services may be terminated.
• 7.9.   In the event of a violation by the Customer or User of the intellectual property rights of third parties, the Customer is obliged to settle such claims independently and repay the damage caused to such person in full.
• 7.10. The Parties recognize as confidential and not subject to disclosure to third parties any information relating to the activities of the Parties, the information set out in this Agreement, as well as any other information transferred by the Parties to this Agreement to each other in connection with the conclusion and execution of this Agreement. The fact of concluding the Agreement, marks for goods and services, and brand names of the Parties are not confidential information and may be disclosed on the websites, official pages of the Parties on the social networks of the Parties. Such publications do not require the prior consent of the Parties.
• 7.11. By concluding this Agreement, the Customer consents to the processing of his personal data and the User’s personal data. The Contractor under this Agreement undertakes to ensure the processing and storage of personal data of personal data subjects in the process of implementing this Agreement in accordance with the legislation of Ukraine.

8.       DISPUTE RESOLUTION CONDITIONS

• 8.1.   All disputes and/or disputes arising as a result of or in connection with the conclusion, execution, termination of the Public Agreement are regulated through negotiations between the Parties.
• 8.2.   The Customer sends to the Contractor any claims (complaints) regarding violation of the Agreement within 3 (three) business days from the date of their discovery. The claim must be sent to the Contractor in writing (including by email) to the Contractor's address specified in the public contract. The claim must include the essence of the claim (detailed description of deficiencies, etc.), the Customer’s requirements, within the limits of the agreement of the parties, defined by this agreement, and other information established by current legislation. If the claim was not sent by the Customer after the expiration of 3 (three) working days from the moment the grounds for such a claim arose, such a claim is not subject to consideration. To substantiate the claim, the Customer sends the Contractor the relevant supporting documents, if any, or other evidence, in his opinion, confirms the fact of inadequate quality of the Services. The Contractor considers the Customer's claim and sends him a written response within 15 (fifteen) working days from the date of its receipt.
• 8.3.   All disputes that cannot be resolved through negotiations are resolved in court by the court of Ukraine, in accordance with the legislation of Ukraine.
• 8.4.   The Party is released from liability for partial or complete failure to fulfill obligations under this Agreement if it proves that such failure was a consequence of force majeure, that is, extraordinary and inevitable circumstances (force majeure) that arose after the conclusion of the Agreement and to which the Party. could not influence. Force majeure (force majeure circumstances) includes, in particular, but not exclusively, strikes, court decisions, riots, natural disasters, fires, floods, wars (both declared and undeclared), military actions, hostilities, sabotage, revolutions, terrorist attacks, anti-terrorist operations, mobilizations, epidemics, sabotage, blockades, restrictions and prohibitions imposed by authorities (including illegal and self-proclaimed ones). If force majeure circumstances arise that prevent either Party from fulfilling its obligations under this Agreement, the fulfillment of such obligations is suspended and the deadlines for their fulfillment are extended for the period of force majeure. In cases where force majeure circumstances and their results continue to operate for more than 3 (three) months or upon the occurrence of such circumstances it becomes clear that they and their consequences will last longer than this period. The parties will conduct negotiations as soon as possible in order to identify alternative ways for them to implement this Agreement and reach an appropriate agreement.

9.       VALIDITY OF THE PUBLIC AGREEMENT

• 9.1.   The Agreement is considered concluded from the moment the Customer makes the Acceptance and is valid until the termination of the paid time for using the Service, and in terms of monetary obligations - until they are fully fulfilled.
• 9.2.   The Agreement may be terminated by any Party:
• 9.2.1. By mutual agreement of the Parties.
• 9.2.2. Unilaterally by sending a notice of termination of the Agreement 20 (twenty ) working days before the desired termination date.
• 9.2.3. In other cases provided for by applicable law and this Agreement.
• 9.3.   The Contractor has the right to make changes or additions to the Public Agreement at any time without any special notice, by posting the new version in the appropriate section of the Site. The new edition of the Terms comes into force from the moment it is posted on the Site, unless otherwise provided by the new edition of the Public Agreement.
• 9.4.   If the Public Agreement is terminated by any party and for any reason, the Customer and Authorized Users lose the right to use the Software and are obliged to stop using the Service.

10.     CONTACT INFORMATION OF THE CONTRACTOR

• UA103052990000026004046211755, JSC CB "PRIVATBANK",
• MFO 305299,
• st. Yuzhnaya 15, apartment 20,
• s. Sofievskaya Borshchagovka,
• Kievo-Svyatoshinsky district,
• Kiev region, Ukraine, 08131,
• tel.: +380 63 578 8808
• TIN 3214519954
• info@smarto.com.ua