1.1.
These Service and License Terms (hereinafter “
Service Terms”) of the Provider, incorporated as PromoTron Solutions a.s., company number: 070 29 918, with its seat at Čirůvková 127/10, Pitkovice, 10400 Prague 10, Czech Republic, define the rights and obligations between the Parties arising from and in relation to the Service and License Agreement (hereinafter “Service Agreement”) for the “PromoTron” platform software, including individual computer programmes provided as SaaS (Software as a Service) and related services (hereinafter “SaaS services”), concluded by and between Provider and Client, where the latter is not a consumer.
1.2.
The software and its modules (e.g. TronShop, TronLogo, TronCalculator, TronMessenger, and others) are intended for use in sales and marketing of corporate promotional products by Client to third parties (Client’s end customers); for a more detailed specification of the software and its modules, please refer to
www.promotron.com.
1.3.
The software is provided to Client for use exclusively on a server operated by Provider (Software as a Service), whereby Provider also procures the operation of the software. The customer interface of the software is integrated in Client’s user account (see Article 3) and displayed inside one or more e-shops of Client. Client will procure the integration of the customer interface of the software into Client’s e-shop (at Client’s own responsibility); Provider may cooperate with Client in this step.
1.4.
Provider may anytime independently modify the software, including its functionality, during the term of the Service Agreement. Client has no legal entitlement to modifications of software, whether planned or otherwise, unless expressly agreed otherwise by and between Provider and Client.
1.5.
Software modules which Client may use are defined in the Service Agreement. Module options, including quota limits (hereinafter “
Plan”) are defined in more detail in these Service Terms (see Article 12) and on the relevant subpages at the website
https://www.promotron.com/en, which will deem to include also landing pages to which this website links.
2.1.
The Service Agreement is concluded on the basis of individual negotiations between Provider and Client. The Service Agreement may be concluded (i) by way of a physical document, (ii) by filling in the web form at
https://www.promotron.com/ designed for that purpose, and confirmed subsequently by Provider, (iii) through another indisputable communication between Provider and Client (such as e-mail), or (iv) in case of doubt implicitly by the first use of the software by Client.
2.2.
Provider is not obliged to conclude the Service Agreement, in particular with persons who have previously breached the Service Agreement in a material way (including these Service Terms).
2.3.
By concluding the Service Agreement, Client acknowledges to be fully acquainted with the functionality of the software and the contents of SaaS services which are the subject matter of the Service Agreement.
4.1.
Client acquires the License upon the conclusion of the Service Agreement. The Software License is provided for the term of the Service Agreement.
4.2.
Provider grants the Software License to Client as non-exclusive.
4.3.
The Software License is provided without a territorial limitation; the Provider will decide where to locate the server containing Client’s copy of the software.
4.4.
Client will exercise the privileges under the License by using the copy of the software made and operated on the Provider’s server, which copy is necessary in order to introduce and store the software in the memory of a computer – a server – as well as to display, operate, and transmit through the Internet. Client may exercise the privileges under this Article exclusively through the Provider on the server designated by the Provider.
4.5.
Client may embed a dedicated part of the software’s interface on Client’s website and share this dedicated part with the public.
4.6.
Only individuals designated by Client may access the software administration and its features.
4.7.
The scope of the software use is defined for each Plan. The scope of the software use may be restricted by technical tools protecting the Provider’s rights.
4.8.
The Client may only use the software for the purpose derived from the Service Agreement, and in line with the purpose of the software. Using the software through automated processes and/or robots, if not approved by Provider in advance, is not permitted.
4.9.
Client is not obliged to make use of the License.
4.10.
Client may not provide the privileges constituting the License to a third person (i.e., to provide a Sublicense), fully or partially, without the prior written approval of Provider. Client may not assign the rights and obligations under this License to a third party without the prior written approval of Provider.
4.11.
In the event of any patches, updates or upgrades, or any other software modifications by Provider, the License is hereby provided for the software as modified.
4.12.
Provider guarantees that the software licensed to Client is free from viruses.
5.1.
The software is protected by copyright. Client will not carry out any activity enabling the unauthorised use of the software by Client or any third person.
5.2.
Client will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the software or the service; modify, translate, or create derivative works based on the software or service (except to the extent expressly permitted by the Provider or authorized within the service); use the software or service for time-sharing or service bureau purposes or otherwise for the benefit of a third party.
5.3.
Client
may not bypass, remove, change or impair the mechanisms serving to protect the Provider’s rights and any the proprietary notices, labels, footers and information related to the software copyrights including back-links to the PromoTron's website at
https://www.promotron.com/ or its subpage (hereinafter "Authorised signature"). The official prices of any provided SaaS services always includes and require this authorized signature. Authorised signature will always be at the bottom of the page and in small print that is not prominent and does not draw attention to itself. In the event of a breach, PromoTron will notify the customer and give 1 week to rectify the breach.
Repeated violation of this condition entitles PromoTron to immediate termination of the provided services and any signed contract.
Removal of any Authorised signature
is only possible in so called "WHITE-LABEL" mode of any application (=you will be entitled to show your copyrights or hide ours). White-label mode always require the written consent and activation by PromoTron and is available only for extra fee (normally +100% to all repeating SaaS service fees and charges).
5.4.
Client acknowledges that interfaces with additional computer programmes may be necessary for the proper use of the software, and that the use of such computer programmes is not governed by the Service Agreement but separate legal agreements with the holders of the rights to such computer programmes.
5.5.
The software may also be integrated with freeware (Open Source or any other free software); the rights and obligations in respect of the use of such freeware by Client are not governed by the Service Agreement but the Service Terms of such freeware.
5.6.
The software allows Client to enter data into the software database, such as product information, pricing, printing data, Client’s end-customer data, etc. Client makes use of its data stored in the database at its own responsibility and at its own risk. Provider makes no guarantee to Client that the data entered by Client into the database are correct or suitable for the purpose desired by Client; if Client’s data contain any error, such error will appear in the customer interface inside Client’s e-shop.
5.7.
Client carries out the sale of promotional products and any related services, including customer relationships, on its own account and at its own responsibility, including the performance of any legal obligations on part of Client within the customer interface of the software. If Provider provides Client with any information or documents through the software or otherwise in relation to Client’s performance of the above obligations, such information or documents will only be provided as illustrative, and Provider makes no guarantee to Client that such information/documents are correct or complete.
5.8.
If any errors occur in the operation of the software due to Client’s actions, Client will be obliged to restore the software operation on its own and at its own cost. This is without prejudice to the provisions of Article 5.2 of these Service Terms. Should Client need Provider’s support to restore the software operation, Provider may provide such support on the basis of a separate agreement between the Parties.
5.9.
Provider may allow Client to use the software free of charge for a period and to the extent set by Provider as a trial, in order to allow Client to try out the software’s functionality.
6.1.
Except for the trial, Client will pay a Monthly Royalty for the Software License, and the provision of server operation and services, in the amount defined by the Plan. The prices of the individual Plans are agreed in the Service Agreement. This is without prejudice to Provider’s right to provide the Software License or the associated services to a third person on different terms.
6.2.
Unless the Parties agree otherwise, the Monthly Royalty will be paid in advance for the next calendar month on the basis of an invoice (“tax receipt”) issued by Provider and due in no less than 10 days; Provider will issue the invoice and send it digitally to Client’ s e-mail address. The payment of the Royalty for the first calendar month will include the Royalty due for any fraction of the previous calendar month prorated by the time during which the Service Agreement was already in effect.
6.3.
Client will pay a Technical Support Fee in the amount calculated as the relevant hourly rate multiplied by the actual time spent by Provider in providing the technical support in the previous calendar month rounded up to the next 15 minutes; the Technical Support Fee will be due at the same time as the Monthly Royalty. Client will not be charged for bug fixes if the SaaS services are proven to be faulty.
6.4.
Client will pay Provider a Service Fee for the services provided, calculated as the relevant price per service provided multiplied by the number of such service items in the previous calendar month; the Service Fee will be due at the same time as the Monthly Royalty.
6.5.
The Provider’s total fees will be payable by bank transfer to the Provider’s bank account specified on the invoice, or within another request for payment made by Provider, or through a third-party payment system.
6.6.
If stipulated by generally binding laws and regulations, value added tax, or any other statutory tax will be added to the total amounts charged by Provider.
6.7.
Client is obliged to pay any amounts to Provider’s bank account using the payment identifiers (“variable symbol”) given on the invoice.
6.8.
In the event of Client’s default with the payment of any amount on the due date as specified on the invoice:
6.8.1.
Provider will be entitled to default interest equal to 0.03% of the amount due per day of default; and/or
6.8.2.
Provider may discontinue the performance of any of its obligation towards Client (including the availability of the service functionality) until all of the outstanding debt owed by Client is paid.
7.1.
As long as the Service Agreement is in effect, Provider will procure the following services to Client:
7.1.1.
patches, updates, or upgrades of the software the extent and timing of which are at the discretion of Provider; Provider is not obliged to carry out such modifications of the software;
7.1.2.
basic technical support and assistance (hereinafter “Basic Technical Support”) to the extent defined by an agreement between Provider and Client and, in the absence of such agreement, at the Provider’s discretion; such agreement is a side agreement to the Service Agreement and is also subject to the provisions of these Service Terms.
7.1.3.
service provision to the extent defined by an agreement between Provider and Client (incl. e.g. service items such as campaign conversion in order for campaigns to be displayed in the TronMessenger module); such agreement is a side agreement to the Service Agreement, and is also subject to the provisions of these Service Terms.
7.2.
Any software modifications except parameterization within the existing software settings and/or modifications carried out by Provider on the basis of Article 7.1.1. will constitute custom development and may only be provided to Client on the basis of separate agreements between Parties.
7.3.
Any of the technical support requests must be made by Client as a “ticket” at
https://support.promotron.com/; Provider will not provide the technical support if the request is made in any other way.
7.4.
Provider will usually initiate its response to Client’s requests for basic technical support in 24 to 72 hours within the receipt of Client’s request; in the event of a higher volume of technical support requests, the response time may be longer. This is without prejudice to the provisions of Article 7.5. of these Service Terms. Basic technical support requests (including those made by Provider’s other customers) are usually dealt with in the order of relevance of such requests, where the most serious requests affecting the operation will be dealt with first.
7.5.
Should Client use basic technical support more than is usual, Provider may decline to provide technical support to Client.
7.6.
Client may use premium technical support provided by Provider on the basis of a separate agreement between Parties. Premium technical support requests have priority over basic technical support requests.
7.7.
Furthermore, on the basis of the Service Agreement, Provider will provide Client with basic server services necessary for the operation of the software on the Internet. Server services will mean the provision of end user access to Provider’s server on which the Client’s copy of the software is located using the http or https protocols, and the operation of the hardware, and the associated computer programmes on Provider’s part necessary for the software to operate. Any rescue of Client’s data will be performed by Provider for an extra charge.
8.1.
Provider need not provide service operation (i.e. support services as per Article 7.1. and server services as per Article 7.7.) in the event that such provision is being prevented by problems on part of Client or any other persons. Thus, Provider need not provide service operation in situations including but not limited to a power outage, data network or Internet outage, and other technical failure caused by a third party, or force majeure (including especially: hacker attack, denial-of-service attack, virus or other malicious software attack or infection, industrial dispute, change in the laws, natural disaster, epidemics, pandemics, explosion, fire, flood, riot, terrorist attack and war).
8.2.
Provider may take measures to prevent outages, slowdowns, disruptions, or drops in the quality of the service operation. In relation to this right, Provider may also perform scheduled or unscheduled maintenance shutdowns of the service operation in order to monitor, maintain, or replace hardware and/or modify the software or other computer programmes, or to adjust the settings thereof. Provider will usually notify Client in advance of scheduled maintenance shutdowns by e-mail or by a message displayed in Client’s user account.
8.3.
There may be outages, temporary slowdowns, disruptions, or drops in quality of service operations during the provision of the services hereunder.
8.4.
If the disruption of service operation occurs for reasons on part of Client, Client agrees to reimburse Provider the costs to fix such disruption. Otherwise, the costs to fix a disruption will be covered by Provider.
8.5.
Provider may also procure service operation, including server services, through third parties, and Client agrees to such third-party provision. Cloud services provided by third persons may be used for the provision of server services.
9.1.
SaaS services (i.e. service operation as per Article 8 and the use of software by Client on Provider’s server) are available on “as-is” basis, with all of the features currently available and limitations present.
9.2.
Unless stipulated otherwise, Client may not allow third parties to use the SaaS services without Provider’s prior written approval. In the event that Client breaches this obligation or that a third person causes damage to Provider, Client agrees to compensate Provider for the damage suffered.
9.3.
Client may not use the user account or any SaaS service in a way that unreasonably restricts the use of service by Provider’s other customers or unreasonably restricts the Provider in any other way.
9.4.
Client may not store data and/or allow any transmission of data within any SaaS service which data is in conflict with generally binding laws and regulations or with Provider’s standard published policies or documentation then in effect.
9.5.
Provider is not liable for the contents of the data stored or transmitted by Client, nor for any unlawful actions of Client committed with the use of the software. Client agrees that Provider will prevent the transmission of unlawful data and remove any unlawful data stored by Client and/or any other persons in relation to the service if Provider becomes aware of the unlawfulness of such data.
10.1.
Software availability and/or the availability of server services as per Article 7.7. will reach a minimum of 99.3% in any calendar month; such value thus represents unavailability in the maximum duration of 334 minutes (i.e. 5.5 hours). Software availability means that the condition of the software is other than outage.
10.2.
Software outage means an outage that makes the software unavailable or changes the parameters or functionality of the software in a way that demonstrably renders the software unusable by Client. Any outage resulting from the actions of Client or a third person to whom Client has given access to the software will not be considered a software outage or disruption. Neither temporary outages nor reduced availability of software will be considered a software outage if they are caused by a power outage, data network or Internet outage, other technical failure caused by a third party or force majeure. Maintenance shutdowns (see Article 10.3.) are not considered a software outage.
10.3.
At its own discretion, Provider may take measures to fix or prevent the consequences of outages, reduced availability, disruptions, or reduced quality of the software operation. In order to meet this obligation, Provider may also perform both scheduled and unscheduled software maintenance shutdowns. Software will be shut down for 2 hours per month on average; if Provider does not exercise its right to shut down the software in a given month (given months) for the above number of hours, Provider may carry over such unused maintenance shutdown hours to the following months (to be used if more time-demanding measures are necessary).
10.4.
If a maintenance shutdown is scheduled, Provider will usually notify Client of such maintenance shutdown in advance by an e-mail message to Client’s e-mail address or by a message displayed in Client’s user account. If the nature of the maintenance shutdown of the software so permits, Provider will schedule it for periods of lower software utilization (weekends, night-time, public holidays).
10.5.
If the software outage occurs for reasons on part of Client or another person to whom Client has given access to the software, Client agrees to reimburse Provider for the costs to fix such software outage. Otherwise, the costs to fix a software outage will be covered by Provider.
10.6.
Should Provider fail to keep the software availability level as defined in Article 10.1. of these Service Terms, such failure will not constitute a breach of the Service Agreement by Provider; however, Client will become entitled to compensation in the amount equal to the Monthly Royalty pro-rated by the difference between the actual availability and the guaranteed level of availability in the specific calendar month; such compensation will not, however, exceed the amount defined in Article 16.6.
11.1.
The software contains information and data (collectively “Supplier Data”) e.g. on products, prices and/or price calculation logic, stock availability, product delivery deadlines, or printing data, which are imported into the software database on the basis of data provided by third parties – product suppliers or manufacturers (collectively “Suppliers”); the Supplier Data are updated on an irregular basis – on average once a month (products), once a week (prices), once a day (stock levels) contingent upon data updates by Suppliers. Provider has no control over the contents of such Supplier Data stored in the database, nor does Provider influence or check the correctness or suitability of Supplier Data. In addition, Provider does not guarantee that 100% participating Suppliers are available at any given moment (the typical implementation rate for products amounts to 85-98%).
11.2.
All pricing calculations are based on purchasing policies in place (the correct price list or pricing information from the relevant Supplier, the correct discounts from list prices, etc.), and the sales policies (volume thresholds, margins/mark-ups required, etc). Client is responsible for the correct definition of such policies in the software. If Client enjoys individual pricing from a certain Supplier, Client is obliged to arrange for Provider on-line access to Supplier’s standard data sources containing such individual pricing. Products will be implemented free of charge if such products come from the sources of those Supplier for which data integration exists on Provider’s platform.
11.3.
Client will make use of Supplier Data entered into the software database at its own responsibility and risk. Provider makes no guarantee to Client that the Supplier Data entered into the software database are correct or suitable for the purpose desired by Client. Client acknowledges that if the Supplier Data contain an error, including product pricing errors, such error will show in the customer interface of the software inside Client’s e-shop. Provider synchronizes/updates Supplier Data on an irregular basis, and to an extent at Provider’s discretion; Client will run a manual check of Supplier Data after an update.
11.4.
On the basis of a contractual relationship between Client and Supplier, Suppliers may supply products for the purpose of the sale of such products to Client’s customers through an electronic trade. Provider is not a party to the contractual relationship between Supplier and Client, nor does Provider influence the contents of such relationship (including the issue and delivery of invoices etc.); Suppliers may set various terms and/or limits for the supply of products to Client over which Provider has no control.
11.5.
Client agrees that Provider will inform all Suppliers that Client uses the software, and will forward Client’s contact information to Suppliers, also for the purpose of contract negotiations as per Article 11.3.
11.6.
The list of Suppliers available within the service, including information about modules supported by each Supplier, is available at
http://www.promotron.com/en/suppliers/list. This Supplier List, including information about modules supported by each Supplier, may be modified during the term of the Service Agreement.
11.7.
Client acknowledges and agrees that a certain Supplier may demand that Provider not disclose Data provided by this Supplier to Client within the software, also with regard to the contractual obligations of such Supplier. In that case, Provider will not make Supplier Data available to Client.
11.8.
Suppliers are the sole proprietors of all source data made available to Provider. Clients are the sole proprietors of all commercial and personal data created on Provider’s platform through Client’s own activities and/or those of end customers (users). Provider is the sole proprietor of all data created on the basis of Provider’s own activity and the provision of SaaS services, and the sole holder of any and all intellectual property rights to data created in such manner.
12.1.
The
TronShop module is used for the operation of Client’s e-shop, including the option to automatically use Supplier Data (Article 11); for a more detailed specification of this module’s functionality, please see
http://www.promotron.com/en/tronshop.
12.2.
The
TronLogo module allows customers to visualize prints on Suppliers’ products in Client’s e-shop; for a more detailed specification of this module’s functionality, please see
https://www.promotron.com/en/tronlogo. Client acknowledges and agrees that:
12.2.1.
the visualization displayed using the TronLogo module is not what the resulting product will look like in the end because it is only a “virtual sample” of a print on a product, this including the visualization of printing technologies (laser engraving, blind embossing, embroidery etc). The TronLogo module DOES NOT produce print-proof data, and does not control for print-proof data; such production / control must be made by Client at its own responsibility;
12.2.2.
the range of products on which prints can be visualized may be limited because it is driven by the number of products which the individual Suppliers have templated for TronLogo.
12.3.
The
TronCalculator module is used inside Client’s e-shop to run on-line price calculations for products along with the prints on such products, including the option to automatically use Supplier Data (Article 11); the module also makes it possible to put the result of such calculation to the basket in Client’s e-shop; for a more detailed specification of this module’s functionality, please see
http://www.promotron.com/en/troncalculator.
12.4.
The
TronMessenger module is used by Client-Supplier to convert its marketing campaigns (presumed to be Data for the purposes of these Service Terms) into an attractive, interactive format, and by Client-Distributor for its customization/personalization, and subsequent mailouts to Client-Distributor’s (potential) customers; for a more detailed specification of this module’s functionality, please see
https://www.tronmessenger.com/. Client acknowledges and agrees that:
12.4.1.
Client-Supplier grants Provider a license to use Client’s marketing campaigns for their conversion (including any e-mail templates) and publication in the TronMessenger module for any purposes and uses envisaged by Provider within this module;
12.4.2.
Provider grants Client-Distributor a license to use the converted marketing campaigns and e-mail templates published in the TronMessenger module for the purpose of their customization/personalization, mailouts (with the use of templates) to such Client’s (potential) end customers;
12.4.3.
Client will only send mailout campaigns to its (potential) customers who have granted their prior consent to receiving such e-mails; any liability for mailouts containing any unsolicited commercial communication is with Client, who sends out such mailouts.
12.5.
The modules do not provide any (broader) functionality other than the functionality given in the specification, which the Provider may change from time to time.
12.6.
The Plans of the individual modules may be restricted by (maximum) parameters (quotas), which the Provider may change from time to time. The specific parameters are given in the Service Agreement or with the specific Plan for a given module on that module’s subpage at
http://www.promotron.com/en/. These parameters may include, for example:
12.6.1.
TronShop – visitor traffic to the software customer interface in Client’s e-shop (the number of unique visitors or pageviews per month); the number of: records in the product table in the software database, Suppliers which Client may select within the TronShop module, languages, and currencies;
12.6.2.
TronLogo – the number of: vector logo conversions, and visualizations of logos per month, Suppliers which Clients may select within the TronLogo module; the size of data storage for data stored within the TronLogo module used by Client (data made up of e.g. uploaded customer logos, visualizations created, generated PDFs containing visualizations, etc.);
12.6.3.
TronCalculator – number of: calculations per month;
12.6.4.
TronMessenger – number of: active marketing campaigns, contacts uploaded, e-mail messages sent per month, campaign microsite pageviews per month.
12.7.
If Client using the service exceeds any of the Plan quota limits of any of the modules by more than 10% in 2 consecutive months – and in the absence of any other agreement between Provider and Client – Provider may (at its discretion of which Provider will notify Client), effective from the following calendar month:
12.7.1.
start charging Client the Monthly Royalty for the next higher existing Plan where this limit would not be reached; in the absence of such Plan, Provider may increase the Monthly Royalty pro-rata to the “overuse” of such service by Client;
12.7.2.
limit the extent of the use of the software by technical tools in conformity with Article 4.7.; or
12.7.3.
terminate the Service Agreement by a 30-day notice, where the notice period commences upon receipt of the Termination by Client.
14.1.
With respect to the fact that the operation of the software may involve (as a result of contractual performance between Provider and Client) processing of personal data of natural persons recorded in the software (in particular Client’s end customers and/or any other natural persons on part of Client; collectively “
Client’s end customers”), the agreement between the Parties also includes this Agreement on Personal Data Processing pursuant to the provisions of Section (28) (3) and (4) of GDPR.
14.2.
Provider will process personal data during the term of the Service Agreement. Client’s end customers constitute the category of data subjects whose personal data are processed by Provider. Types of the personal data processed may include: name, surname, residence, registered seat of business, e-mail address, physical delivery address, invoicing address, telephone number, and information about the orders filled / purchase agreements concluded. Personal data will be processed through automated and manual procedures consisting of collecting, recording, sorting, structuring, storing, adjusting, modifying, searching, viewing, using, arranging, combining, limiting, and deleting of such personal data. The purpose of personal data processing on part of Client is to exercise the rights and meet the obligations of Client as defined in the purchase agreements with end customers, or negotiations about the contents of such agreements, and to meet Client’s obligations under public law.
14.3.
Provider will only process personal data on the basis of evidenced instructions from Client (which include actions on the part of customers within the software), including instructions concerning the transfer of personal data to a third country, or to an international organization, unless Client is already subject to EU law or the laws of an EU member state applicable to Client in respect of personal data processing. Client’s instructions may also be included in the Service Agreement. Upon the expiration of the Service Agreement, Provider will be obliged to delete all personal data (which is an instruction from Client) unless generally binding laws and regulations require continued storage of the specific personal data.
14.4.
Provider will take measures to the extent defined by generally binding laws and regulations to avoid unauthorised or random access to personal data, the alteration, destruction or loss of it, the unauthorised transfer, unauthorised processing, or any other misuse of it. Taking into account the condition of the equipment, the associated cost, nature, extent, context, and purposes of personal data processing, and considering the various probabilities and seriousness of the risks in respect of the rights and freedoms of natural persons, Provider will take appropriate technical and organizational measures to ensure the protection of personal data on a level corresponding to the given risk(s). Client acknowledges and agrees that the security of the server application layer of the computer programmes running on Provider’s server depends, to a substantial degree, on the choice of computer programme(s) designed for the purpose of operating the server, including the currentness of such computer programme(s). Provider is not the originator of such computer programme(s), and their development is procured by third parties. Client acknowledges and agrees that it takes full responsibility for security risks associated with its failure to take technical measures recommended by Provider during the term of the Service Agreement in order to secure personal data.
14.5.
Provider will not involve any additional processor in the processing of personal data without a prior, specific or general, written consent of Client. Client hereby agrees with the involvement of additional processors in the processing of personal data by Provider, specifically persons performing Provider’s obligations under the Service Agreement, in particular the operation of Provider’s equipment, including hosting services. Provider will notify Client of any intended changes in respect of the involvement of any additional processors, or their replacement(s), and will give an opportunity to Client to raise objections against such changes. If Provider involves another processor of personal data to carry out certain personal data processing activities in the name of Client, the same obligations must be imposed on such additional processor by agreement in respect of data protection as defined in the Service Agreement, including but not limited to the provision of sufficient guarantees of an introduction of suitable technical and organizational measures to ensure that personal data processing meets all the requirements of GDPR. If Client suffers damage, Provider will make an immediate intervention to remedy the damage; the provisions of Article 16.6. of these Service Terms will apply in respect of Provider’s liability in the area of personal data protection.
14.6.
Provider is obliged to take into account the nature of personal data processing. Provider will cooperate with Client through appropriate technical and organizational measures, if possible, in order to help Client meet the obligation to respond to requests for the exercise of the rights of the data subjects defined in Chapter III of GDPR, at Client’s cost, on condition that it is Client, or a third party designated by Client, who carries out the data processing. Without prejudice to this condition, Provider will forward to Client, without undue delay, any requests for the exercise of the rights of the data subjects raised towards Provider. Provider will cooperate with Client to ensure conformity with obligations defined in Sections 32 to 36 of GDPR, taking into account the nature of the processing of personal data and information available to Provider, and will charge a fee if one is agreed in a separate agreement between the Parties.
14.7.
Provider agrees to provide Client at the latter’s cost any information necessary to prove that the obligations defined in the Service Agreement have been met, and Provider will facilitate, at Client’s cost, audits of personal data, including inspections carried out by Client and/or another auditor appointed by Client; Provider will make contributions to such audits including any cautions to Client that the latter’s instruction, in Provider’s opinion, is in breach of generally binding laws and regulations in the area of personal data protection. Regardless of the above provision, the Parties have agreed that Provider may not and will not provide Client such access to Provider’s server which reduces the level of security of the data of Provider’s other contractual customers/Suppliers, or access which reduces the level of security of personal data and/or any other data managed by Provider, including situations where the Provider’s server might be compromised. Provider’s fee for cooperating with Client pursuant to this Article will be agreed in a separate agreement between the Parties.
15.1.
Provider agrees to maintain confidentiality about specific Client’s end customers and individuals potentially representing them, their personal data, and their processing; Provider will not disclose or make available such data to third parties including but not limited to other software users, and will not make use of such data for its own purposes (other than operating the platform for the benefit of Client in conformity with the Service Agreement and these Service Terms). Provider agrees to procure the commitment to confidentiality about these (personal) data and their processing on part of its employees, and other individuals working with these data.
15.2.
Notwithstanding anything to the contrary herein, Provider may collect and analyse data and other information relating to the provision, use and performance of (various aspects of) the software, service and related systems and technologies (including, without limitation, personal data and data derived therefrom), and Provider will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the software or the service and for other development, diagnostic and corrective purposes in connection with the software, the service and other Provider’s offerings, and (ii) disclose such data solely in aggregate or otherwise de-identified for in connection with its business.
15.3.
Provider may use Client’s business name, trading name, or personal name, for marketing purposes as a reference in all kinds of promotional materials (regardless of the form of such promotional materials or the form in which they are communicated).
15.4.
Without prejudice to the previous Article 15.3., nothing in the Service Agreement or these Service Terms will operate as assignment or transfer from the Client to the Provider and vice versa of any intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application of such right, in connection with: copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, unfair competition rights, patents, utility models and rights in design.
15.5.
Client may be served notices at its electronic address entered into its user account or within the means of this user account.
16.1.
The software is a complex one and, as such, is never completely free from defects or errors; errors may occur during the use of software and service operation and Provider, therefore, does not provide a guarantee for the software, and takes no liability for the results of the activities for which the software and the service operation are used.
16.2.
The non-existence of a functional property of the software which is not expressly listed in the software specifications is not considered a defect. Client is obliged to check the functionality of the software without undue delay after obtaining access.
16.3.
Provider takes no liability for software defects arising from unauthorised interference with the software, or the use of software contrary to its specifications on part of Client and/or third parties, or the errors arising from interference by third parties into the web interface or the user account, or as a result of using the web interface or user account contrary to their intended use.
16.4.
In addition, Provider takes no liability for the functionality of Client’s data network, the functionality of the public data network, the functionality of Client’s hardware equipment, for data back-up by Client, for the condition of any other software of Client, and any interference by third parties into any other software of Client.
16.5.
The Parties’ rights and obligations in respect of Provider’s liability for the defects of software and service operation are governed by generally binding laws and regulations. The Parties agree that Provider is liable solely for culpable breaches of Provider’s legal obligations. Client will seek the enforcement of its rights resulting from Provider’s liability ideally in writing by e-mail.
16.6.
If Client suffers damage in relation to Provider’s liability for defects of software or service operation or liability for the breach of the Service Agreement, including these Service Terms, and if there is no evidence that such damage has been caused by Provider wilfully or as a result of gross negligence, the Parties have agreed, considering the terms of providing the license for the software, that the compensation for any single damage and all damage suffered by Client in the immediately preceding 12 calendar months is limited to EUR 200.00 as the total damages including lost profits and any other indirect damage (such as: loss of (anticipated) revenue, income, business, contracts, opportunities, production, savings). Taking into account all circumstances concerning the conclusion of the Service Agreement, the Parties note that the total predictable damage, including lost profits and any other indirect damage, which Client may suffer as a result of defects of software and/or service operation, will amount to a maximum of EUR 200.00.
18.1.
The Service Agreement takes effect upon conclusion.
18.2.
The Service Agreement is made for a definite term, specifically for the term as agreed within the specific Plan, and for a minimum period of one (1) month; in the event of any doubt, the Service Agreement will be deemed to have been concluded for a period of one (1) month. If neither Party receives an unambiguous declaration of will from the other Party to terminate the Service Agreement at least three (3) days before the expiration of the Service Agreement, the Service Agreement will not expire, and the term of the Service Agreement will automatically renew for the same term for which the Service Agreement was last concluded by and between the Parties. The term of the Service Agreement, as per the previous sentence, may be renewed even repetitively. A declaration of will to terminate the Service Agreement may also include a notice period, in which case the Service Agreement is effective, and will not expire until the monthly anniversary of the effect of the license immediately following the expiration of the notice period specified by the terminating Party.
18.3.
Client acknowledges that all of the information stored by Client in the software may be deleted in the event of the expiration or termination of the Service Agreement.
18.4.
Provider may withdraw from the Service Agreement if Client breaches an obligation under the Service Agreement (including these Service Terms), or if Client exceeds the Plan limit substantially, or if Client interferes in any other way with the normal functioning of the service, or if Client infringes the software proprietary rights or copyrights in any other way. In such situations, Provider may reduce or deactivate the use of the software, or the use of service operation, by Client.
18.5.
Either Party may terminate the Service Agreement upon delivering a termination notice to the other Party if any of the following has occurred on part of either the terminating or the non-terminating Party:
18.5.1.
a Party has forfeited its business license;
18.5.2.
a decision has been made to wind up a Party’s business activity and/or to dissolve a Party;
18.5.3.
an insolvency petition has been filed in respect of a Party.
18.6.
Any provisions and/or claims, rights or obligations which, by their very nature, are to survive the Service Agreement (e.g. confidentiality (Article 15.1), limited liability (Article 16), an accrued claim to receive a fee, etc.), will survive the Service Agreement until such claims, rights or obligations are settled, or for a period of 3 years, whichever occurs earlier.
19.1.
If the legal relationship based on the Service Agreement contains an international (cross-border) element, the Parties agree that (i) the relationship is governed by the Czech law, including but not limited to Act No. 89/2012, the Czech Civil Code, as amended, except that the provisions of Sections 557, 558 (2), 1763, 1799, and 1800 of the Civil Code will not apply to the relationships between Provider and Client, and that (ii) courts of subject-matter and territorial jurisdiction of the Czech Republic are competent to decide any disputes arising between Parties on the basis of the Service Agreement or in relation thereto.
19.2.
The provisions of these Service Terms are incorporated in the Service Agreement by reference. Similarly, the terms of Basic Technical Support at support.promotron.com are incorporated in these Service Terms by reference.
19.3.
Without prejudice to the provision of the previous Article 19.2, provisions deviating from these Service Terms may be expressly agreed in the Service Agreement. Such deviating, express provisions in the Service Agreement will take priority over the provisions of these Service Terms. An agreement is deemed express if it refers to a specific provision of these Service Terms (as amended) and modifies that provision expressly.
19.4.
The Parties agree that Provider may modify these Service Terms (and prices of any of services) unilaterally, to a reasonable extent. Client will be notified of any modification of these Service Terms by electronic mail at the e-mail address given in the user account
at least 60 days before the effective date of the change to the Service Terms. During this notification period, the current Service Terms will continue to apply. The customer may terminate any of the affected services during this notification period without any penalty at least 30 days before the change of terms comes into effect (except for longer-term commitments with fixed Service Terms valid for the duration of the commitment, which cannot be terminated before the end of their term). In the absence of such termination by the Client, the Client shall be deemed to have accepted such change to the Terms of Service and the change shall take effect by the date specified in the notification.
19.5.
If any of the provisions of these Service Terms is or becomes invalid or ineffective, such provision will be replaced by a new provision the meaning of which is as close as possible to the invalid provision. The lack of validity or effect of one provision is without prejudice to the validity of all other provisions.
Done at Prague, Czech Republic, on this 2nd day of February, 2022.
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