Data40 Public offer Agreement
1. GENERAL PROVISIONS
1.1. This document is the Public Offer Agreement of Data40 Ltd., hereinafter referred to as the “Company”,BIN 220440900333,a private company registered under the Acting lawof the Astana International Financial Centre (the “AIFC”), having its registered address at: the Republic of Kazakhstan, 010000 Nur-Sultan, Esil district, Dostyk 20, office 1501, represented by the Director, Danila Tarasenko, acting on the basis of the Articles of Association, and includes significant requirements and terms for the provision of the services indicated on the Company’s website www.data40.com (hereinafter referred to as the “Website”) in the section of Services on the Website.The Company’s services are to be rendered to the clients of the Company (hereinafter referred to as the “Client”).Hereby the Company and the Client are jointly referred to as the “Parties” and individually as the “Party” to the Agreement.
1.2. This Public Offer Agreement (hereinafter referred to as the “Agreement”) is an official document of the Company published on the Website.
1.3. Under this Agreement the Client is any individual, who is at least 18 years old, or any duly registered and operating legal entity.By contacting the authorized persons of the Company and making request to purchase the services from the Company, the Client hereby acknowledges and ascertains that the Client’s use of the services does not violate any of the applicable legislation in the country of the Client, or the Client’s legal obligations towards any third party.The request of the Client to purchase the Company’s services can be done by email or any written means of communication to the authorized persons of the Company. As a result of the discussion of the request of the Client by the Parties, the Company makes a pre-offer to the Client based on the request. Once the pre-offer is discussed and agreed fully by the Parties, it shall become the Invoice-offer (hereinafter referred to as the “Invoice-offer”)for the exact services (hereinafter referred to as the “Services”)to be purchased from the Company and to be included in the Invoice-offer.The Invoice-offershall include the description of the Services, the number and cost of the Services, payment terms and conditions, the term of the provision of the Services by the Company,contact details of the Parties, bank details of the Parties as well as other necessary details for making the payment.
1.4. This Agreement is developed, construed and regulatedin accordance with the Acting law of the AIFC. The Acting law of the AIFC is based on the Constitution of the Republic of Kazakhstan and consists of: 1) the Constitutional Statute of the Republic of Kazakhstan “On the Astana International Financial Centre”; 2) AIFC Acts, which are not inconsistent with the Constitutional Statute and are based on the principles, legislation and precedents of the law of England and Wales and the standards of leading global financial centres; 3) the Acting Law of the Republic of Kazakhstan, which applies in part to matters not governed by the Constitutional Statute of the Republic of Kazakhstan “On the Astana International Financial Centre” and AIFC Acts.
1.5. This Agreement is the Public Offer Agreement, so the Agreementdoes not require the signature or seals by the Parties, while having the legal force of the signed and sealed document when it is accepted and concluded.
1.6. The Customer before accepting the Agreement and making a request for the services of the Companymust carefully study the text of this Agreement. The Company is not responsible for the awareness of the Agreement by the Client.
2. SUBJECT OF THE AGREEMENT
2.1. Under the terms of this Agreement, the Company is obliged to provide the Servicesspecified in the Invoice-offer issued by the Companyto the Client as a result of the discussion by the Parties of the pre-offer of the Company based on the request of the Client, and the Customer is obliged to pay for the Services in accordance with the amount specified in the Invoice-offer.
3. ADOPTION AND ENTRY INTO FORCE OF THE AGREEMENT
3.1. The Client accepts the Invoice-offer by payment of the Company’s Services in respect of which the Invoice-offer is concluded. The acceptance of the Invoice-offer of the Company means that the Client fully agrees with all the provisions of this Agreement.By accepting the Invoice-offer, the Client warrants that the Client is acquainted of the Agreement, agrees with its provisions, fully and unconditionally confirms the acceptance of all the terms of the Agreement in the form in which they are stated.
4. RIGHTS AND OBLIGATIONS OF THE PARTIES
4.1. The Company undertakes:
4.1.1. to organize and ensure the proper provision of the Services according to the Invoice-offer;
4.1.2. to use legal methods and means when performing the Services;
4.1.3. to perform the Services in full and in the manner specified in the Invoice-offer and this Agreement;
4.1.4. upon request,to inform the Client about the progress of the Services;
4.1.5. to take into account the recommendations of the Client regarding the performance of the Services, if such recommendations are legal and appropriate.
4.2. The Company has the right:
4.2.1. taking into account the Client’s request unilaterally to determine the terms and conditions of the pre-offer to the Client, when the pre-offer is discussed, agreed and approved fully, it later shall become the Invoice-offer to be executed by the Parties once accepted.
4.2.2. to amend, update, change or modify the Agreement at any moment at its sole discretion and without prior notice. Any changes and updates will come into effect from the moment of publication of the amended version of the Agreement on the Website. The Company does not make any notifications regarding any change or update of the Agreement carried out by the Company.The Client is responsible for reviewing the Agreement from time to time to get acquainted with any changes. By continuing to purchasethe Services, the Client agrees to all the changes and modifications to the Agreement introduced by the Company.
4.2.3. independently to determine the form and method of providing the Services, taking into account the requirements of legislation, technical capabilities, specific terms of the Agreement and taking into account the wishes of the Client.
4.2.4. to use the services of any third parties, any individuals and legal entities for the purpose of qualitative and timely fulfillment of obligations under the Agreement. At its discretion, to determine the composition of professionals involved in the Services provided, as well as at its discretion to distribute the work between them.
4.2.5. to require payment for the Services according to the payment terms indicated in the Invoice-offer.
4.2.6. to refuse the Client in the provision of the Services in case of non-payment (incomplete payment) for the Services within the terms established by the Invoice-offer.
4.2.7. to receive from the Client any information necessary to fulfill its obligations under the Agreement and to provide the Services. In the event of failure to provide or incomplete / incorrect provision of information by the Client, the Company has the right to suspend the performance of all obligations under the Agreement before receiving the requested information.
4.2.8. to present claims to the Client in case of untimely fulfillment and / or non-fulfillment by the Client of his/her/its obligations under this Agreement and the Invoice-offer.
4.3. The Client is obliged:
4.3.1. timely and fully to pay the Company the cost of the Services provided in the manner and within the time and amount specified in the Invoice-offer agreed by the Parties and accepted by the Client.
4.3.2. to provide the Company with all documents, information and data necessary for the Company to fulfill its obligations under this Agreement and the Invoice-offer.
4.4. The Client has the right:
4.4.1. to require the Company to provide information on the organization and provision of the Services under the Invoice-offer and the Agreement.
4.4.2. to require proper and timely provision of the Services by the Company.
4.4.3. to make claims to the Company in case of untimely performance and/or incomplete performance and/or non-performance of the Services by the Company under the Invoice-offer of the Company to the Client.
5. TERMS OF THE PROVISION OF THE SERVICE
5.1. Terms for the provision of the Services are negotiated individually with the Client depending on the scope of the Services requested by the Client and finally specified in the Invoice-offeragreed by the Parties. Terms start to be calculated from the moment of receipt by the Company of all required amount of information and/or documents from the Client.
6. COST OF THE SERVICES
6.1. The prices of the Company’s services are published on the Website, in the section of Prices, and available for the public. Under this Agreement, the prices of all the available services of the Company are the same for all of its clients. The Company reserves the right to change the prices of the Company’s services on the Website at its own discretion. In this case, the updated prices will be published on the Website and come into effect from the moment of the publication. The total cost of the Services under the Agreement and the Invoice-offer is determined by the Companybased on the scope and number of the Services, number of hours needed to provide the Services as well as the request of the Client, but taking into account the price policy of the Company published on the Website and that applies to all the clients of the Company.
6.2. The Client is solely responsible for the correctness of payments made by the Client under the Invoice-offer. The obligation of payment by the Client is considered complete from the moment of the receipt of funds by the Company.
6.3. The total cost for the Services provided by the Company does not include tariffs and commissions of banks and other organizations involved in payment transactions as well as any possible taxes payable by the Client.
6.4. In the event that the Clientprovides incomplete, unreliable or inconsistent information that has affected the result of providing the Services to the Client, the Company reserves the right not to return to the Client the payment made for the Services.
7. PROCEDURE FOR THE PERFOMANCE OF THE SERVICES
7.1. The Services are performed by the Company in the amount provided for in the Invoice-offer.
7.2. The objections of the Customer regarding the volume and quality of the Services performed must be justified and contain specific references to the inconsistency of the Services with the results, while the Parties are obliged to immediately agree on the conditions for the elimination of this claim.
7.3. Services not provided for in the accepted Invoice-offer of the Parties are formalized by additional offersand paid separately.
7.4. Payment of all possible additional expenses during the performance of its obligations by the Company is made by the Client separately.
7.5. The Company provides the Services by the agreed way with the Client. The Services under this Agreement are considered fully performed after the Client accepts the Services by email or any means of communication to the authorized persons of the Company within 3 (three) working days from the date of receipt the Services from the Company.
7.6. If the Client, within 3 (three) working days from the date of receipt of the rendered Services, does not make acceptance and confirm the rendered Services or does not provide a written reasoned objection, then the Services performed by the Company are automatically considered fully accepted and confirmed by the Client.
7.7. The date of receipt the Services by email or any means of communication is the date the Services are sent by the Company to the Client’s email or any means of communication indicated by the Client in the Invoice-offer or official correspondence between the Company and Client.
8.1. All information and data, including, but not limited to, commercial, contractual, financial, marketing, technological, legal, economic and other information, as well as data of the Parties and on the activities of the Parties, provided to each other during the execution of this Agreement and the Invoice-offer (with the exception of publicly available information), is considered confidential and cannot be transferred to third parties without the written consent of the Parties, except in cases where this is expressly provided for by the Acting law of the AIFC. At the same time, each Party, in the event that this Party is required to disclose information, in accordance with the Acting law of the AIFC is obliged to immediately notify the other Party about such disclosure.
8.2. Each Party undertakes not to use the information received under the Agreement and Invoice-offer for the purposes of directly or indirectly causing damage to the other Party.
8.3. Confidential information does not include information that is classified by the Acting law of the AIFC as open and public information.
8.4. If the Party discloses confidential information, this guilty Party is obliged to fully compensate the suffered Party for the cost of direct and/or indirect losses, as well as pay a fine in the amount of 5 000 (five thousand) US dollars for the violation of the Section 8 of this Agreement.
8.5. Confidentiality obligations remain in force during the active relationship of the Parties with each other and after the termination of any legal relationship between the Parties.
9. LIABILITIES OF THE PARTIES
9.1. For non-performance or improper performance of their obligations under this Agreement, the Parties shall be liable to each other in accordance with the Acting law of the AIFC.
9.2. The Company is not liable for the Client’s own failure to receive the Services in the following cases, including, but not limited to: a) the e-mail address or the address of the means of communication specified by the Client at the time of the provision of the Service is not available; b) the Client can not receive paid Services because of technical or other problems that have arisen without any fault of the Company.
9.3. For non-provision and / or improper provision of the Services, the Client has the right to demand from the Company payment of a penalty in the amount of 0.3% (zero-point three percent) of the total cost of the Services specified in the Invoice-offer, but not more than 10% (ten percent) of the total cost of such Services.
9.4. For the delay in payment for the Services, as specified in the Invoice-offer, the Company has the right to demand from the Client payment of a penalty in the amount of 0.3% (zero-point three percent) of the total cost of the Services for each day of delay, but not more than 10% (ten percent) of the total cost of such Services.
9.5. Payment of fines and penalties under this Agreement does not release the Parties from liability for the fulfillment of obligations under the Agreement as a whole.
9.6. Payment of penalties is made by the guilty Party within 5 (five) working days from the date of receipt of the written request of the other Party.
10. INTELLECTUAL PROPERTY RIGHT
10.1. Under this Agreement, all intellectual property rights, including prerogative, unique, exclusive and commercial rights in relation to the Services performed by the Company, remain with the Company, and under no circumstances, intellectual property rights to intellectual products obtained as a result of the provision of the Services aretransferred to the Client.
10.2. Under this Agreement, the Client does not have the right to transfer, resell, spread, publish and / or distribute in any form intellectual products received from the Company as a result of the provision of Services by the Company.
10.3. In case of violation by the Client of clause 10.2. of this Agreement, the Client is obliged to fully compensate the Company for the cost of direct and / or indirect losses caused to the Company as a result of violation by the Client of clause 10.2. of the Agreement, including the Company’s lost profit, as well as pay a fine in the amount of 20000 (twenty thousand) US dollars for the violation of the Section 10 of the Agreement. In this case, the cost of direct and / or indirect losses caused to the Company as a result of violation by the Client of clause 10.2. of the Agreement, including the unreceived profit of the Company, is determined by the Company.
11. FORCE MAJOR
11.1. None of the Parties will be liable for the full or partial failure to fulfill any of their obligations if the failure is a direct consequence of circumstances of an insurmountable (force majeure) nature that are beyond the control of the Parties that arose duringor/and after the acceptance of the Agreement and the Invoice-offer.
11.2. Force majeure circumstances under the Agreement are: military actions, strikes, regulatory acts of the legislative and executive authorities, actions / inactions of the state and the authorized body, fires, lightning, storms, floods, earthquakes, other natural disasters.
11.3. Upon the occurrence of the circumstances specified in clause 11.2 of this Agreement, each Party must immediately notify the other Party about them in writing. The notice must contain data on the nature of the circumstances, as well as official documents certifying the existence of these circumstances and, if possible, assessing their impact on the ability of the Party to fulfill its obligations under this Agreement. At the same time, the deadline for fulfilling obligations under this Agreement is postponed in proportion to the time during which such circumstances were in effect. If the performance of this Agreement is not allowed within 90 (ninety) calendar days of an uninterrupted period due to force majeure, then either Party may send a notice to the other Party of the termination of this Agreement without the obligation to compensate each other for possible losses, while the Parties must make a full settlement between themselves.
12. DISPUTE RESOLUTION
12.1. The Parties shall make every effort to resolve in the process of direct negotiations all disagreements or disputes arising between them under the Agreement or in connection with it.
12.2. If within 21 (twenty-one) days after the start of such negotiations the Parties cannot resolve the dispute under the Agreement, any of the Parties may demand that this issue be resolved in accordance with the Acting law of the AIFC.
12.3. Any dispute, controversy, difference or claim, whether contractual or noncontractual, arising out of or in relation to this Agreement, including its existence, validity, interpretation, performance, breach or termination, shall be referred to and finally resolved by arbitration administered by the International Arbitration Centre of the Astana International Financial Centre (“IAC”) in accordance with the IAC Arbitration and Mediation Rules in force on the date on which the Request for Arbitration is filed with the Registrar of the IAC, which Rules are deemed to be incorporated into this clause. The number of arbitrators shall be 1 (one). The arbitrator shall be appointed by agreement of the Parties. If the Parties have not agreed on the appointment of an arbitrator within 3 (three) calendar days of the commencement date notified to the Parties by the Registrar of the IAC. At the request of one of the Parties, the Chairman of the IAC will appoint the arbitrator. The seat of the arbitration will be Nur-Sultan, Kazakhstan. The arbitration shall take place via online video conferencing. The law governing the arbitration proceedings shall be the Acting law of the AIFC. The language of the arbitration proceedings shall be English. The governing law of this Agreement shall be the substantive Acting law of the AIFC.
13. FINAL PROVISIONS
13.1. The moment of conclusion of this Agreement is the moment of the acceptance of the Invoice-offer by the Clientby email or any written means of communication.This Agreement is valid until the Parties fully perform their obligations under this Agreement.
13.2. The Client enters into the Agreement and the Invoice-offer voluntarily, by accepting the Invoice-offer, the Client hereby acknowledges and guarantees that:
- the Client is fully acquainted with the terms of the Invoice-offer and the Agreement;
- the Client fully understands the subject of the Invoice-offer and conditions of the Agreement;
- the Client fully understands the meaning and consequences of its actions with respect to the conclusion and execution of the Invoice-offer and the Agreement;
- the Client has all the rights and powers necessary to conclude and execute the Invoice-offer and the Agreement.
13.3. This Agreement and the Invoice-offer may be terminated at any time by mutual agreement of the Parties. But at the same time, all mutual settlements must be carried out properly.
13.4. The conditions and terms of the Agreement apply to all the clients of the Company in the same way, unless otherwise provided by the Acting law of the AIFC.
13.5. The Invoice-offer is an integral part of this Agreement.
13.6. In all other cases not mentioned in this Agreement, the Parties are guided by the provisions and norms of the current Acting law of the AIFC.
13.7. Severability: if any of the clauses in this Agreement is deemed to be invalid, unlawful, or unenforceable, it will be considered severable and will not affect the rest of the clauses of the Agreement.
14. CONTACT DETAILS OF THE COMPANY
Senior Analyst & Founder
Facebook: Danila Tarasenko
Manager, Marketing & Sales
Discord: Serg Data40#7760
Facebook: Sergey Poryadin
Actual version since June 22th 2022