Effective as of May 1st, 2019
2.2. Agreement – the Agreement on the Processing of Personal Data that regulates the processing by Softventure, on behalf of the Client, of the personal data processed by the Client within the use of the Services.
2.3. Confidential Information – any information belonging to either Party, transmitted or accessed, directly or indirectly, at any time during or after the Client’s use of the Services by the Client, including, but not limited to:
(i) information of a technical nature (e.g. technical specifications and data), know-how, research, inventions, trade secret, drawings, diagrams, concepts, documentation, manuals, source codes, object codes;
(ii) information of a business nature such as financial information, business strategies, marketing strategies, costs;
(iii) personal data, Content and Subscription Data,
(iv) any other information belonging to the other Party not generally disclosed to the public.
2.4. Content – all data and information uploaded, submitted, stored, received and managed by Users to or through the Services, other than Subscription Data.
2.7. Fortuitous Case – an event that is unforeseeable and unavoidable by the Party that would have been held liable if the event hadn’t occurred.
2.8. Party – either Softventure or the Client.
2.9. Parties – Softventure and the Client.
2.11. Subscription Fee – the fee owed by the Client for the use of the Services for each User.
2.12. Subscription Data – the data belonging to the Client and/or the Users required for the subscription to and use of the Services.
2.13. Subscription Period – each monthly or annual period for which the Users subscribed to use the Services.
2.15. User – any person using the Services upon access granted by the Administrator, including the Administrator.
3.1. The Client is granted a non-exclusive and temporary right to use the Services, in exchange for the payment of the Subscription Fee.
3.2. Help-desk services are available from Monday to Friday, excluding national Romanian holidays as well as other noticed periods, during business hours, via the in-app chat service.
3.3. Additional services (e.g. customizations, any software development services, technical support services or training) shall be provided by Softventure upon express request of the Client and shall be subject to separate fees and terms.
4.1. The use of the Services requires certain Subscription Data to be provided, such as:
4.2. The Client has the obligation to keep up to date and confidential all Subscription Data.
4.3. Each User shall access the Services by using their e-mail address and password. The Client shall use all reasonable endeavours to ensure that each User uses its own profile and that such profile is used solely by the User to whom it is assigned, including the profile of the Administrator.
4.4. The Administrator shall have the authority to choose and modify at any time the subscription in the name and on behalf of the Client and to manage the profiles of each User. All changes to the subscription shall apply only for the future and immediately (not at the expiration of the Subscription Period). The Client acknowledges and accepts that any subscription changes may result in loss of Content.
5.1. In exchange for the use of the Services, at the expiration of the free trial period, the Client shall pay either a monthly or an annual Subscription Fee (exclusive of VAT), by visiting the subscription page and selecting the payment recurrence, number of users and a selection of add-ons. The VAT shall be subject to the fiscal rules applicable between the Client and Softventure, as the case may be.
5.2. Softventure reserves the right at any time and at its sole discretion to change the Subscription Fee with a 30 (thirty) days prior notice to the Client, during which the Client shall have the right to modify or terminate its subscription, by visiting the account subscription edit page. The new Subscription Fee shall apply for the following Subscription Period.
5.3. The Subscription Fee shall be paid via direct debit (recurring payment). The Subscription Fee can also be paid via electronic payment (online payment or bank transfer), whenever direct debit cannot be used as means of payment.
5.4. In case of direct debit payments, the Client shall provide a valid credit, debit or another payment card for the payment of the Subscription Fee. The Client further authorizes Softventure to use a third party to process payments. The Client shall be charged the Subscription Fee automatically, in advance for each Subscription Period. The Subscription Fee is due on the first day of each Subscription Period. The payment system shall try to withdraw the amount due 3 (three) times within a period of 15 (fifteen) days as of the date the invoice is issued by Softventure. Each time the payment is declined, the Client shall receive a notification in this regard.
5.5. In case of electronic payments, the Client shall pay to Softventure the Subscription Fee in advance for each Subscription Period. The Subscription Fee is due on the first day of each Subscription Period. The Subscription Fee is considered paid when the amount due is effectively transferred in Softventure’s account.
5.6. The use of the Services shall be suspended automatically if the payment of the Subscription Fee is not settled either via direct debit or via electronic payment within 15 days as of the date the invoice is issued by Softventure.
5.7. If the Client delays payment of the Subscription Fee, Softventure reserves the right to apply penalties of 0.2 % of the due amount for each day of delay as of the due date until payment of the full amount by the Client.
5.9. The Subscription Fee shall be automatically updated to reflect any changes made by the Administrator to the Client’s subscription, under clause 4.4. hereto. Additional fees shall be invoiced immediately. For downgrades, a credit note shall be issued, applicable exclusively for the use of the Services.
5.10. All paid Subscription Fees are non-refundable, regardless of the actual use of the Services by the Client, save for otherwise stipulated hereunder.
5.11. The Subscription Fee does not include incidental expenses to the use of the Services such as Internet access, data roaming or other data transmission charges.
6.1. Softventure shall take all reasonable security measures to ensure secure access to and use of the Services and protection of the Content and the Confidential Information of the Client, including, without limitation, a secure method of authentication and firewalls.
6.4. The Client is responsible for maintaining the security and confidentiality of the Content and all the activities while using the Services. The Client agrees to immediately notify Softventure with regard to any unauthorized use of the Services or any other security violation thereof.
6.5. The Client shall ensure that copyrights, as well as any other intellectual property rights over the Services, are not infringed, by using the Services or otherwise.
6.6. The Client shall not, permanently or temporarily, reproduce the Services, in whole or in part, by any means or in any form and shall not translate, adapt, arrange or make any alterations to the Services, regardless of whether such reproduction/translation/adaptation/arranging/alteration is required to enable the Client to use the Services in accordance to its intended purpose or to correct any errors in the operation of the Services.
6.7. The Client shall not make changes, deletions or additions to the Services’ source code, shall not copy distinct elements of the Services, e.g. CSSs or specific functionalities, without Softventure’s express and written prior approval.
6.8. The Client shall not attempt to gain unauthorized access to the Services, to other accounts, systems or computer networks connected to any server used by the Services or to any of the services provided by Softventure, by means of fraud, password decryption or any other means.
6.9. The Client shall not use the Services in any way that violates third parties’ rights, including, but not limited to, intentionally harm a person or entity, including Softventure.
7.1. Softventure reserves the right at any time to temporarily suspend the Services, part of the Services or any feature of the Services for the purpose of providing maintenance (e.g. bug fixing, patching, upgrades). Softventure will notify the Client at least 2 (two) days prior to any such suspension, save for the situations in which urgent action is required to safeguard the integrity and security of the Services. Softventure shall use all reasonable endeavors to restore the functionality of the Services in a reasonable time.
8.1. The Client understands and acknowledges that the Services are provided “as is”, without any warranty of any kind, whether express or implied. To the maximum extent permitted by the applicable law, Softventure does not grant any warranties, express or implied, statutory or otherwise, including but not limited to, warranties of merchantability or fitness for a particular purpose or warranties that the Services will not infringe third-party patents, utility models, copyrights, trademarks or other rights. Softventure does not warrant that the Services fulfill Client’s requirements or that the Client’s use of the Services will be uninterrupted, error-free, or that the Services are protected from any losses, tampering with, cyber – attacks or other security intrusions.
8.2. Softventure’s aggregate liability towards the Client for any claims, losses or damages whatsoever in relation to the use of the Services shall not exceed, under any circumstances, 50% of the amount paid by the Client for the use of the Services during the last 3 months prior to the occurrence of the damage.
8.3. Softventure shall not be liable for any direct, indirect, incidental, special or any other damages resulting from
(i) the use or inability to use the Services,
(ii) changes or alterations of the Services,
(iii) temporary or permanent interruptions of the Services,
(iv) unauthorized access to Subscription Data and Content.
8.4. The limitation of liability under this clause does not apply if the damages were caused to the Client by Softventure with intent or gross negligence.
10.1. Neither Party shall be held liable for any delay, failure or default in fulfilling any of the obligations undertaken hereunder if such delay, failure or default is the direct result of the intervention of Force Majeure. The other Party shall not be entitled to any compensation.
10.2. Should any of the Parties be prevented, impeded or delayed in fulfilling any of the obligations undertaken hereunder by Force Majeure, than that Party shall notify the other Party in writing within 5 (five) working days as of the date the Party acknowledged the event, with regard to the Force Majeure event and the relevant circumstances.
10.3. The Party notifying the Force Majeure shall not be held liable for the non-fulfillment, late or improper fulfillment of its obligations undertaken hereunder, during the Force Majeure.
10.4. The ceasing of the Force Majeure shall also be notified, in writing, to the other Party within 5 (five) working days as of the ceasing date.
10.6. The Parties expressly agree that Softventure shall not be held liable in case of any Fortuitous Case that impedes or delays, in whole or in part, the fulfillment of the obligations undertaken hereunder. The provisions of this clause regarding Force Majeure shall apply accordingly should a Fortuitous Case occur.
a) the information was known to the respective Party before receiving it from the other Party; or
b) the information was disclosed after obtaining the written consent of the other Party for such disclosure; or
c) the respective Party had to disclose the information in compliance with and in observance of express procedures set forth by the legislation in force; or
d) the information has become public, independent of the action or inaction of the respective Party.
12.1. The Parties agree to comply with the obligations set forth in Appendix 1 – Agreement on the Processing of Personal Data.
13.1. The Client shall not, at any time, be granted any copyrights over the Services or related materials, including, but not limited to, the source code, the object code, documentation/manuals for the use of the Services, as well as any other work of intellectual creation within the meaning of Law no. 8/1996 on copyright and related rights, included in the Services, and is fully responsible for any infringement of any moral and/or patrimonial rights over the Services.
13.2. The Client shall not use the Services in any manner that may infringe intellectual property rights.
13.3. The Client is granted the non-exclusive and temporary right to use the Services. This right cannot be subsequently transferred by the Client without Softventure’s prior written approval. The Client is not allowed, without the prior written approval of Softventure:
e) to permanently or temporarily reproduce the Services, in whole or in part, by any means or in any form whatsoever, including when the reproduction is determined by the installation, storage, running or execution, display or transmission within the network;
f) to translate, adapt, arrange and/or bring any other transformations to the Services nor to reproduce the outcome of these operations.
1.2. As regards such personal data, Softventure acts as the Processor and the Client as Controller.
2.1. This Agreement is governed by Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (hereinafter referred to as the “Regulation”), as well as by any legislation issued by the competent data protection authorities in its implementation.
2.2. This Agreement is available within the Services. Softventure reserves the right to unilaterally modify this Agreement by notifying the Client with a 30 (thirty) days prior notice after which the new version of the Agreement shall enter into force. The Client has the right to modify or terminate its subscription during such period, by visiting the account subscription edit page. By continuing to use the Services, the Client irrevocably agrees and accepts the Agreement, as unilaterally amended by Softventure.
2.3. The notions „personal data”, „data subject”, „processing”, „controller”, „processor” and „supervising authority”, as used herein, and any other notions which are not expressly defined herein shall have the meaning provided in the Regulation.
3.1. Personal data means any information relating to an identified or identifiable person which is processed by the Client while using the Services in its capacity as Controller (hereinafter referred to as “Personal Data”).
3.2. Softventure processes the following types of Personal Data:
3.3. Softventure processes Personal Data concerning the following categories of data subjects:
4.1. Softventure undertakes the following obligations in its capacity as Processor in relation to the Processing Operations:
a) to ensure that the persons within Softventure authorized to perform the Processing Operations have committed themselves to the confidentiality of these data;
b) to take appropriate technical and organizational measures to ensure an appropriate level of security in performing the Processing Operations; Softventure shall take steps to ensure that any natural person acting under its authority and who has access to Personal Data does not process them except upon Client’s request, unless he or she is required to do so by European Union or national law;
c) to meet the conditions provided under clause 6 hereunder;
d) taking into account the nature of the processing, to assist the Client by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of the Client’s obligation in its capacity as Controller to respond to requests for exercising the data subject’s rights laid down in the Regulation (e.g. right to information and right of access to the data, right to rectification, right to erasure, right to restriction of processing, right to data portability, right to object, right not to be subject to a decision based solely on automated processing, including profiling, right to submit a complaint in front of the competent supervisory authority);
e) to assist the Client in ensuring compliance with its obligations as Controller, taking into account the Processing Operations and information available to Softventure and only when such obligations are linked to the provision of the Services;
g) to make available to the Client all the information necessary to demonstrate compliance with the obligations laid down under clause 4.1. of this Agreement;
h) to allow for audits regarding the Processing Operations, including inspections, conducted by the Client or another auditor mandated by the Client, insofar as such verifications are strictly necessary for the fulfillment of legal obligations and there are reasonable grounds that Softventure does not meet its legal obligations regarding the Processing Operations, under the conditions agreed in relation to each audit between Softventure and the Client; audits and inspections, shall not, under any circumstances: (i) be performed more than once a year, unless requested by the competent supervisory authority; (ii) be performed outside the normal business hours of Softventure; (iii) interfere with Softventure’s course of business;
i) to inform the Client without undue delay after having become aware of a Personal Data Breach.
4.2. If Softventure receives a request from a data subject regarding his or her rights under the Regulation, Softventure will guide such person to address the request directly to the Client.
5.1. The Client undertakes the following obligations in relation to the Personal Data and/or the Processing Operations:
a) to ensure that Personal Data is strictly necessary for the use of the Services and that such data is correct, complete, precise and does not violate the rights of third parties (including data subjects), being solely responsible for the transmission of such data, as well as for the lawfulness and accuracy of the processing;
d) to grant to Softventure a reasonable time for the fulfillment of its obligations under clause 4.1. letters d), e), f) g) and h) hereto, considering the complexity and nature of the activities that Softventure must undertake to such purpose so that it does not affect Softventure’s course of business;
e) to notify Softventure any information which can affect the fulfillment of its obligations as Processor hereunder;
f) to notify Softventure without undue delay after having become aware of any Personal Data breach that Softventure may control.
6.1. The Client hereby generally authorizes Softventure to engage another processor to perform the Processing Operations, without the need of any further approval in this regard. The following third parties are considered approved by the Client by using the Services and accepting this Agreement:
|Third Party||Processing Operations|
|DIGITAL OCEAN Inc.||Hosting|
|ZOHO CORPORATION||Subscription and Billing Management|
6.2. Softventure shall inform the Client of the identity of any other third party performing Processing Operations and shall ensure that such person shall undertake towards Softventure the same obligations Softventure has undertaken hereunder towards the Client.
6.3. If the Client objects to any such third party, the Client has the right to modify or terminate the Services, by visiting the account subscription edit page. By continuing to use the Services, the third party shall be considered accepted by the Client.
8.1. No provision herein shall be understood or construed as an exemption of the Client’s obligations, acting as Controller, under the Regulation or any other applicable legal provisions, nor as a limitation of the Client’s liability, regarding the processing of Personal Data.
8.2. The liability of Softventure hereunder, as well as under the applicable legislation, shall not exceed, under any circumstances, 50% of the amount paid by the Client for the use of the Services during the last 3 (three) months prior to the occurrence of the damage. Any claim the Client might have against Softventure arising out of or in relation to this Agreement must be filed within 6 (six) months, otherwise, such claim being permanently barred.
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