These terms of service govern the relationship between the Supplier (as identified below) and anyone who downloads, saves, installs, uses, accesses, interfaces with, or otherwise causes themselves to be exposed to the Service or any part of the Service described herein or any software, information or other item provided through or forming a part of the Supplier's website. Each of the acts mentioned in the preceding sentence shall be deemed to signify that the respective person agrees with these terms.
1.1. The following terms, when capitalised, shall have the meanings assigned to them below:
1.2. The words "herein", "hereto", "hereof", "hereunder", "hereby" and "herewith" refer to this Agreement, and words denoting a gender or genders are to be construed as referring to all genders appropriate in the context.
1.3. This Agreement constitutes the entire agreement between the Parties relating to the subject matter hereof, superseding all prior agreements and understandings of the Parties concerning that matter. If any provision herein conflicts with any Software- or Service-related information provided elsewhere, the provision in the Agreement shall control.
2.1. The Agreement shall be effective between the Supplier and the Customer as of the moment when the party to be identified as the Customer downloads, saves or installs any part of the Software, obtains a User Account or agrees or is deemed to have agreed to the Terms, whichever occurs first.
2.2. Each Participant, User and anyone else who causes himself to be exposed to the Service or any part thereof is deemed to have agreed to the Terms every time he subjects himself to a Feature or performs any of the acts mentioned in the opening paragraph of these Terms.
3.1. Subject to the terms set forth herein, the Supplier grants to the Customer and the latter accepts, for the term hereof, a limited, non-exclusive and non-transferable (save as provided in article 17) right to use, for his internal purposes, the Features available under the Customer's Service Plan.
3.2. The Service is intended for normal end use and the Customer is advised to use the Features available to him in accordance with such pertaining technical documentation, specifications and instructions as the Supplier may issue and update from time to time.
3.3. The Service may only be accessed in such manner and by such means as authorised by the Supplier.
3.4. The Customer may reproduce the Software for his own installation and backup purposes only, and only to the extent such reproduction is necessary for his use of the Software in accordance with this Agreement.
3.5. As between the Parties, all Service-related Intellectual Property shall vest in, and is retained by, the Supplier and its licensors. The Customer shall not acquire any right thereto or otherwise in connection with the Service, except for the limited rights of use expressly set forth in this Agreement.
4.1. The Supplier will use commercially reasonable efforts to provide the Customer with all Features covered by his Service Plan.
4.2. Each Customer, Participant, User and anyone else who causes himself to be exposed to the Service or any part thereof acknowledges and agrees that:
4.3. The Supplier has no obligation to enhance, modify or replace any part of the Service, or continue developing or releasing new versions thereof.
4.4. The Supplier aims to respond to support requests within 24 business hours but makes no commitment as to how quickly support will be provided or issues will be resolved.
4.5. The Service may provide links, references or access to third-party websites, resources or services and the latter may provide the same with respect to the Service. The Supplier is not responsible for the existence or qualities (including the availability, reliability and security) of such external sites, resources or services, does not endorse them and shall not be liable for any loss, damage, expenses or other consequences attributable thereto.
5.1. By obtaining a Service Plan or a User Account, installing any Software, using any Feature or causing any of the foregoing to occur on his behalf the Customer shall be deemed to have agreed to and accepted liability for the payment of all fees and other charges associated with the applicable Service Plan, and consented to the same being calculated, billed, revised and adjusted according to the rules that the Supplier has established therefor (which, if not specified in the Customer's subscription documents, are available on the Supplier's website or on request). The same applies, mutatis mutandis, if the Customer permits or causes himself to be designated as the one responsible for paying for someone else's Service Plan.
5.2. Unless otherwise specifically agreed (e.g., with respect to a particular Campaign or Feature): (a) the Customer's billing cycle is monthly, starting on the day when his Service Plan commences or, if a free trial period applies, on the first day following the trial period; (b) payment for the Service is due in advance by the first day of the relevant billing period.
5.3. The Customer shall make his payments in the agreed currency, using a payment method acceptable to the Suppler.
5.4. The Supplier may alter the fees, rates and the billing cycle applicable to the Customer's Service Plan upon a month's notice. If the Customer does not agree with the respective change(s), his sole remedy shall be to cancel the Agreement or his Service Plan, with failure to do so signifying his agreement to the change(s).
5.5 The Supplier's fees are non-refundable. For instance: (a) if the Agreement or a Service Plan is cancelled or modified mid-billing period, the Customer will not be entitled to any refund (including any partial refund) as concerns that billing period; (b) payments attributable to future billing periods will not be refunded, unless otherwise explicitly agreed.
5.6. Upon on an upgrade or a downgrade from one chargeable Service Plan to another the amounts that the Customer has prepaid for the original Service Plan (i.e., the credit remaining on the relevant subscription) will be applied against the amounts payable for the new Service Plan.
5.7. The Supplier's fees and rates are exclusive of value added tax, sales tax and other public burdens, save where the Supplier has otherwise explicitly stated. The Customer shall be solely responsible for all taxes, duties and burdens that may be levied on his purchase, import, export, use or enjoyment of any item (including any right or other benefit) provided hereunder.
5.8. All sums owed to the Supplier hereunder must be paid in full, without deducting any currency conversion or payment-related charges.
5.9. The Customer acknowledges that: (a) his payments are handled by third-party service providers; (b) the Supplier is not responsible for these parties or their services and has no liability as concerns payment processing; (c) late payment may result in the suspension of the Service, restriction of access to certain or all of the Features or the termination of the Agreement.
5.10. Interest will be charged on overdue amounts at the rate of eighteen per cent (18%) per annum.
6.1. The Customer must be a person (natural or legal) or an entity with legal capacity.
6.2. For the protection of those whose active legal capacity is restricted, the Supplier prohibits such persons from subscribing to, being subscribed to, and from using the Service. Full active legal capacity is usually attained by becoming of legal age (the age of majority), which, pursuant to the law governing this Agreement, occurs at the age of 18. Consequently, each natural-person Customer, Participant, User and Representative shall, by having assumed the respective role (explicitly or by performing any act identifying him as the respective party), be deemed to have represented to the Supplier that he is, and, in the Representative's case, that both he and the Customer are, at least 18 years old and capable of entering into contracts. The same representation is deemed to be made each time that the respective person causes himself (and, in the Representative's case, when he causes the Customer) to be exposed to the Service.
6.3. The Customer must comply and shall cause each User to comply with all legal requirements applicable to their use of the Service, processing of Customer Data and other activities hereunder (including export control provisions and requirements as to the handling of Personal Data).
6.4. The Customer warrants that he will not use the Service for sending unsolicited communications or uploading, transmitting, delivering, running, possessing or storing harmful code, malware or illegal content, and must ensure that none of the Users engage in any such activity.
6.5. Any Customer Data that conflicts with the provisions of this Agreement may be removed, disabled and/or destroyed by the Supplier at its sole discretion.
6.6. Each Customer, Participant, User and anyone else who performs any of the acts mentioned in the opening paragraph of these Terms undertakes that he will not: (a) interfere with the proper functioning of the Service; (b) impose an unreasonable load on the Service or its infrastructure; (c) reproduce the Software, except as expressly permitted herein; (d) translate, adapt, arrange or otherwise alter the Software or reproduce the results of any such activity; (e) distribute or redistribute, including sell, rent, lease, lend or otherwise make available, the Software (neither the original Software nor any copy thereof) or any other part of the Service; (f) decompile, disassemble or otherwise reverse engineer the Software; (g) remove, alter, hide or obscure any copyright notice, trademark or other proprietary rights notice embedded in, appearing on or otherwise pertaining to any part of the Service; (h) create or attempt to create any product or service that is substantially similar to, or performs the same or substantially similar functions as, or otherwise competes with any part of the Service, or purports to be created, provided or approved by the Supplier or its licensors; or (i) cause anyone else to do any of the foregoing; and acknowledges that this section does not relieve him of any of his statutory obligations.
7.1. The Representative personally warrants to the Supplier that: (a) the Customer conforms to the description set forth in section 6.1; (b) he is authorised to act on the Customer's behalf; and (c) this Agreement is binding on the Customer.
7.2. The Representative agrees that if the Customer does not conform to the description of section 6.1 or if this Agreement proves to be void due to the Representative's lack of authority, he shall, if the Supplier (in its absolute discretion) so chooses and respectively informs the Representative, be deemed to have entered into the Agreement on his own behalf (i.e., in place of the Customer whom he represented or purported to represent).
8.1. The Customer shall be fully responsible for the activity that occurs under his User Account, including all Customer Data processing and other acts performed through or by means thereof, and must notify the Supplier promptly upon learning of any security breach relating to or unauthorised use of his User Account.
8.2. It shall be the Customer's own responsibility to maintain the confidentiality of his usernames and passwords.
8.3. The Supplier shall not be responsible for any loss, damage or other consequences that may result from any unauthorised use of the Customer's User Account, username or password.
8.4. The Supplier has no obligation to monitor or access any User Account, but may do so in cases where such action is reasonably justified (e.g., in order to prevent illegal or harmful activity, provide customer support, perform its duties hereunder or comply with legal requirements).
8.5. The Supplier may, in its sole discretion, disable, close or restrict access to any User Account that is used to infringe on anyone's Intellectual Property or proprietary or personal rights.
9.1. With respect to any product of intellectual activity, including any object of Intellectual Property, that is submitted, contributed or otherwise knowingly made available for inclusion in the Software or any other part of the Service, the Supplier shall be deemed to have been granted a non-exclusive, royalty-free, worldwide, perpetual (save as limited by law), irrevocable, freely transferable and fully sublicensable right to use, distribute, reproduce, modify, adapt, publish, translate, transmit, publicly perform, display and make available the same (in whole or in part) and to incorporate it into other items, including works and inventions, in any form or medium now known or later developed. Each person making such a contribution warrants to the Supplier that he is authorised to do so and that neither he nor any author of any item that may be embedded in his contribution will seek any compensation or reimbursement in connection therewith.
10.1. Any warranty of the Supplier not expressly stated herein shall be deemed withheld. The Supplier disclaims, to the extent legally permitted, all statutory warranties and course of performance, course of dealing and usage related licensees' and users' expectations.
10.2. The Supplier makes no representation or warranty: (a) that the Service will meet anyone's expectations; (b) that access to or the operation or use of the Service will be uninterrupted, secure or error-free; (c) that any defect in the Service will be corrected; (d) that the Service or any means by which it is accessed or used is free of malware or other harmful components; or (e) with respect to any third-party item.
10.3. The Supplier's disclaimers in connection with the Service apply both to the Service as a whole and each component thereof.
11.1. The Supplier shall not be liable for any undesired consequences, including any loss or damage, resulting from (a) anyone's use or inability to use the Service, (b) the properties of the Service or anything delivered via the Service, (c) anyone having to procure, or the procurement of, any substitute item(s) for the Service or any information, resource or other item ordered, received, owned, controlled or enjoyed through the Service, (d) any message or other communication received or transaction entered into through or from the Service, (e) unauthorised access to, or interruption, alteration, loss, corruption or deletion of, anyone's transmissions or data, (f) the statements or conduct of any person having access to the Service, or (g) any other matter relating to the Service or any part thereof; REGARDLESS of whether such are suffered directly or indirectly or are immediate or consequential and whether arising in contract, tort or otherwise; PROVIDED, HOWEVER, that (α) this section shall not prevent claims for the compensation of direct financial loss suffered by the Customer due to the Supplier's intentional or grossly negligent breach of this Agreement, or financial loss resulting from the Supplier's causing personal injury to, or the death of, the Customer, AND that (β) the total cumulative liability of the Supplier, hereunder and otherwise, shall in no event exceed the aggregate amount of all fees and charges (exclusive of value added and sales taxes) that the respective Customer disbursed to the Supplier for the Service during the 6 months immediately preceding that month in which the event giving rise to liability occurred.
11.2. Neither Party shall be liable for breaching its obligations due to a circumstance it reasonably could not have foreseen and which is beyond its control, such as, e.g., a force of nature, conduct of public authorities, war, civil unrest, act of terror, strike, power outage, internet failure or any other circumstance qualifying as force majeure under the applicable law -- to the extent that the respective circumstance prevented or hindered the Party's performance. For the avoidance of doubt, this section: (a) is not intended to derogate from or limit the ambit of any statutory limitation or exclusion of liability; (b) shall not be construed to limit the amount of, or excuse the Customer from paying, any fee or other consideration owed hereunder.
12.1. The Customer shall defend, indemnify and hold harmless the Supplier, its officers, directors, employees, contractors, agents and representatives from and against all claims made by and all damages, liabilities, penalties, fines, costs and expenses payable to any third party that arise from the Customer's or any User's: (a) breach of this Agreement; (b) misuse of the Service or any component thereof; (c) processing of Customer Data; or (d) infringement of anyone's Intellectual Property or proprietary or personal rights.
13.2. The Customer, the Representative, each Participant, User and anyone else who causes himself to be exposed to the Service or any part thereof acknowledges that: (a) the Service allows the Customer to process certain Personal Data about Participants; (b) such information forms part of Customer Data; (c) the Supplier is neither the controller nor the processor (neither "chief", "responsible", "authorised" nor any other processor) of Customer Data and has no control over, nor any obligation in connection with, such data or the processing thereof; (d) any enquiry, request, objection, complaint or claim that a person may have in connection with the processing of Customer Data should be addressed to the respective Customer.
14.1. The Customer acknowledges that, from time to time, circumstances may arise which make it necessary or desirable to modify certain provisions of this Agreement. Such circumstances include: (a) the Supplier's launch of a new service or a modification to the Service; (b) a significant change in the Supplier's operating environment; (c) an order or a judgment being entered against or in favour of the Supplier; (d) a significant corporate event, such as, e.g., the Supplier's merger, acquisition or transformation; (e) the Supplier's transfer of the enterprise or a part of the enterprise to which the Agreement pertains; (f) the ambiguity, invalidity, voidability or unenforceability of a provision herein; (g) any other event whose occurrence or expected occurrence in the Supplier's reasonable judgment necessitates an amendment hereto.
14.2. The Customer agrees that: (a) upon any of the circumstances referenced in the preceding section the Supplier may effect such changes to the Agreement as it reasonably deems appropriate; (b) the Supplier may amend the Agreement by providing the Customer with the revised version (or the revised part) of the Agreement or by posting the same on a website and providing the Customer with a link thereto; (c) if the revised version of the Agreement substantially reduces the Customer's rights or increases his responsibilities, the Supplier will give the Customer reasonable notice of such new version's entry into force.
14.3. Notwithstanding anything herein to the contrary, the Supplier may modify the Service or any part thereof at any time and for any reason, with or without notice. Unless otherwise expressly agreed, the use of any new features, versions, releases, updates or other modifications that the Supplier may make available in connection with the Service shall be subject to the Agreement. The Customer's continued use of the Service after any such modification shall constitute his consent to the respective modification(s).
14.4. If the Customer does not agree with the Supplier's changes (whether to the Agreement or the Service), his sole remedy shall be to cancel the Agreement and stop using the Service.
15.1. The Supplier may discontinue the Service or any part thereof or cease providing the same to any Customer on a month's notice and may, with or without notice, suspend or restrict access to the Service for any Customer whose payment for the Service is overdue more than a week, or whose use of the Service conflicts with this Agreement.
15.2. The Supplier may suspend performance under the Agreement in whole or in part with immediate effect if it is legally required to do so.
16.1. This Agreement can only be terminated by closing the Customer's User Account.
16.2. In order for the Customer to close his User Account, he must log on to the Service and follow the instructions provided there, or, should such be unavailable, notify the Supplier and follow the latter's instructions.
16.3. Either Party may close the Customer's User Account and shall by so doing be deemed to have cancelled the Agreement, provided that: (a) if the User Account is closed by the Supplier, the Customer must be given at least a month's notice thereof (unless section 16.4 applies or the User Account is closed at the Customer's request); and (b) where the User Account is closed by a Party entitled to withdraw from the Agreement, such Party has failed to notify the other that by closing the User Account he is exercising his right to withdraw (which notice must be served prior to or concurrently with closing the User Account and shall result in the Agreement being deemed to have been terminated by withdrawal).
16.4. Upon a Party's material breach of Agreement the other Party may terminate the Agreement forthwith. A material breach of Agreement shall, inter alia, be deemed to have occurred if a Party, having breached any of his principal obligations hereunder, fails to discontinue or remedy such breach within 14 days (or, where a 14-day period is unreasonably short, such longer period as reasonably required) after notice from the other Party specifying the breach and requiring it to be discontinued or remedied.
16.5. Any Customer having entered into this Agreement as a consumer (as determined under the applicable law) may withdraw from the Agreement within 14 days of having become a party hereto. Notwithstanding anything herein to the contrary, any consumer who withdraws from the Agreement pursuant to the preceding sentence is entitled to a full refund of the fees and charges he has paid to the Supplier hereunder, provided, however, that he also returns to the Supplier, or reasonably compensates the latter for the value of, everything he has received hereunder.
16.6. The Customer understands and agrees that upon any termination of this Agreement: (a) all rights that the Customer has been granted hereunder will terminate; (b) the Customer must cease all activities authorised by the Agreement; (c) all amounts that the Supplier is entitled to be paid hereunder become due (save for amounts that already are); (d) all Customer Data and other information associated with the Customer's User Account may be deleted or become unavailable to the Customer; (e) the Customer will receive no refund or other compensation for any unused time or credit on a subscription, for any licence or subscription fee, any data associated with any User Account, or for anything else; (f) all his Software-related obligations hereunder shall survive until the Customer has fully removed all Software from his devices, systems and storage media.
17.1. With regard to assignment, sublicensing and other disposals, the Parties have agreed that:
17.2. The Customer shall not, without the Supplier's prior explicit consent, sublicense, assign, encumber or otherwise dispose of any of his rights or obligations hereunder, except that the Customer may, without seeking the Supplier's consent: (a) dispose of his financial claims, i.e., claims whose sole object is the payment of money to the Customer; and (b) assign the entire Agreement, i.e., all his rights and obligations hereunder, or cause the same to be transferred, as part of the Customer's general succession (including merger, acquisition and transformation), division, transfer of the enterprise (or a substantial, coherent part of the enterprise) to which the Agreement pertains or divestiture of all or substantially all of his assets as a whole;
17.3. The Supplier may: (a) sublicense, assign, encumber and otherwise dispose of any and all of its rights hereunder; and (b) assign this Agreement, i.e., all its rights and obligations hereunder, or cause the same to be transferred: (i) to its parent, any of its wholly- or majority-owned subsidiaries or a wholly- or majority-owned subsidiary of its parent; or (ii) as part of the Supplier's general succession (including merger, acquisition and transformation), division, transfer of the enterprise (or a substantial, coherent part of the enterprise) to which the Agreement pertains or divestiture of all or substantially all of its assets as a whole; or (iii) due to the Supplier ceasing to hold rights in the Software or the Service;
17.4. Where a Party's consent is required, it shall not be unreasonably withheld or delayed.
18.1. The Customer agrees that the Supplier may provide notice to the Customer by posting it on the Service or by sending it to the email address associated with the Customer's User Account.
18.2. All notices, requests, enquiries, complaints and other communications to the Supplier should be sent to the address (email or postal) specified under the definition for "Supplier".
19.1. This Agreement and all matters relating to the Service shall be governed by Estonian law. The United Nations Convention on Contracts for the International Sale of Goods does not apply to any of the foregoing.
20.1. All disputes arising from or otherwise concerning this Agreement or the Service (including disputes concerning the formation or validity hereof) shall be resolved by arbitration as follows: (a) the matter shall be arbitrated by the Arbitration Court of the Estonian Chamber of Commerce and Industry (ACECCI); (b) the proceedings shall be conducted in accordance with the ACECCI’s then-current arbitration rules; (c) the seat of arbitration shall be Tallinn, Estonia; and (d) any decision (order, judgment or other) that the ACECCI may deliver in such a dispute shall be enforceable in all jurisdictions.
20.2. Each Customer, Representative, Participant, User and anyone else who performs any of the acts mentioned in the opening paragraph of these Terms hereby irrevocably submits to the above jurisdiction and waives any and all objections he may have thereto.
20.3. If the above agreement on arbitration proves to be invalid for whatever reason, all disputes to which it was intended to apply shall be subject to the exclusive jurisdiction of Estonian courts, with Harju County Court in Tallinn as the court of first instance (save where the rules of civil procedure provide for the mandatory jurisdiction of another Estonian court, in which event the latter shall apply).
21.1. Unless otherwise expressly agreed, if any provision of this Agreement proves to be void by reason of it violating mandatory law, such provision shall, for those specific circumstances and only in that particular respect in which it is void, be deemed to have been amended between the parties concerned so as to comply with the law. Any such amendment shall be limited to what is necessary for making the provision valid, preserving as much of its original meaning and intended effect as possible.
2. Each person who downloads, saves, installs, uses, accesses, interfaces with, or otherwise causes themselves to be exposed to the Service or any part thereof or any software, information or other item provided through or forming a part of the Supplier's website (any such person hereinafter a "Data Subject") acknowledges and agrees that certain Personal Data and other information about them may be collected and processed by the Supplier and its Customers.
3. A Customer may collect and process information (including Personal Data) about persons who participate or cause themselves to be involved in the Customer's Campaigns. The information processed may include any data that such persons provide to the Customer, whether through the Service or otherwise. The purposes for which a Customer may process a Data Subject's Personal Data should be limited to the purposes of the particular Campaign, which, if not evident from the nature of the Campaign, are to be clarified with the respective Customer.
4. Each Data Subject acknowledges and agrees that: (a) the information referenced in section 3 forms part of Customer Data; (b) the Supplier is neither the controller nor the processor (neither "chief", "responsible", "authorised" nor any other processor) of Customer Data and has no control over, nor any obligation in connection with, such data or the processing thereof; and (c) any enquiry, request, objection, complaint or claim that the Data Subject may have in connection with the processing of Customer Data should be addressed to the respective Customer.
5. Each Data Subject (including the Customer and his Representative) agrees:
6. If a Data Subject participates in the Supplier's mailing or similar programme, the Supplier may use his Personal Data to send him information about products, services, events and other matters that the Supplier believes may be of interest to the Data Subject.
7. The Supplier may send Customers, Representatives and Participants certain communications relating to the Service, such as, e.g., service announcements and administrative messages, without offering them the opportunity to opt out of receiving the same.
8. Each Customer agrees that the Supplier may from time to time include the Customer's name and logo in its customer listings, examples of Software or Service use cases, marketing materials, press releases and similar communications (all within reason).
9. Upon a Data Subject's request, the processor of his Personal Data (i.e., either the Supplier or the respective Customer, as applicable under the above provisions) will inform him what Personal Data the data processor maintains about him unless such information is otherwise reasonably available to the Data Subject or the data processor is legally restricted from disclosing such records. If any such Personal Data prove to be inaccurate or misleading, the Data Subject is entitled to have the same corrected or, if he is able and authorised to modify such data, correct these data himself.