END-USER
LICENCE AGREEMENT FOR Be.Smart ERP CONNECTOR
Please read the following License Agreement carefully
before continuing. If You do not accept the terms of this Agreement, You are not
permitted to use the Product. Please click the "Cancel" button and do
not download, access or use the Product.
This End-User License
Agreement (“EULA”) governs your use of the software application and its
associated upgrades, patches and updates as selected during the order process
(“Software Product”) as well as of all associated data and
documentation, regardless if contained in the Software
Product or made available separately or together with the Software Product.
You agree to this
EULA on behalf of the company or other legal entity for which you are acting
or, if there is no company or other legal entity, on behalf of yourself as an
individual (in either case, “You”).
If you act on behalf of a company or other legal entity when accepting
this EULA, you also hereby declare to be authorized to perform such legal
actions on behalf of the company or legal entity. The EULA is entered into
between You and Arkance Development s.r.o., registered in the Commercial Register
maintained by the Municipal Court in Prague under file number C357549, email:
orders.cz@arkance-development.com (hereinafter the ”Provider”).
1. Acceptance
of the EULA
1.1. The
Provider is willing to license the Software Product to You, including all data
and documentation contained in or provided with the Software Product to You
only upon the condition that You accept all of the
terms and conditions contained in this EULA.
1.2. By
accepting this EULA by clicking on the "Accept" button during
registration of Your account, installation, copying or other access or use of
the Software Product or by its acceptance in any other manner, You confirm that You accept all terms and conditions of this
EULA and agree to be bound by them.
1.3. You
acknowledge that the Software Product is protected by an activation lock and,
with exception of the free trial license type, cannot be used except in
conjunction with a valid activation code issued by or on behalf of the
Provider. You undertake that under no circumstance You may deactivate the
security codes of the activation code.
2. Duration
2.1. The
term of this EULA commences on the day of Your acceptance of this EULA and
terminates with the lapse of the license period (as delimited in the annex No.
1 hereto). The term of the EULA may be renewed upon Your request.
3. Termination
3.1. By the Provider
3.1.1. If
You have not entered into this EULA as a consumer (i.e.
as a natural person acting outside his trade, business or profession), the
Provider may withdraw from this EULA and/or suspend the license to use of the
Software Product upon notice if You breach this EULA, or the Provider has a
reason to believe that You use the Software Product in breach of law. In case
of withdrawal from this EULA or license cancellation/suspension under this
paragraph, you are not entitled to any refund.
3.1.2. If
You have entered into this EULA as a consumer, the
Provider may withdraw from this EULA and/or cancel/suspend the license to use
of the Software Product upon notice if You breach this EULA in a material
manner, or the Provider has a reason to believe that You use the Software
Product in breach of law. In case of withdrawal from this EULA or license
cancellation/suspension under this paragraph, you are entitled to a refund
proportional to the remaining time of the license term.
3.1.3. In
case of withdrawal from this EULA or license cancellation/suspension under
subsection 3.1.1 or 3.1.2,
Your rights and licenses granted hereunder, including Your right
to possess and use the Software Product for any purpose, will end immediately
upon delivery of a notice of withdrawal/cancellation/suspension to You. The
Provider has the right, but is not obliged, to notify You of intended
withdrawal and to request You to remedy the breach within a proportionate grace
period set by the Provider in order to preserve Your
license.
3.1.4. The
Provider has the right to suspend or cancel specific services or Software Product
access if respective payment is not received before its due date, or if the
license term has expired.
3.2. By You
3.2.1. You
are free to cease using the Software Product at any time; however, the Provider
will not refund payments made for commenced license periods.
4. License
4.1. The
Software Product, including but not limited to logos, graphics, trademarks,
service marks, technology, whether patentable or unpatentable, copyrights,
trade secrets, know-how, accompanying documentation, text, software etc., is
Provider’s intellectual property which is owned by, or
validly licensed to, the Provider. You shall have no rights, title
or interest in or to the Software Product other than the right to use it in
accordance with the terms of this EULA.
4.2. The
Software Product is not sold and any rights to the Software Product are not
assigned onto You. By entering into this EULA, You get a non-exclusive license,
for the duration of the license term as set in the annex No. 1 hereto, to
install and use the Software Product and its accompanying documentation solely
(i) in accordance with the accompanying user
documentation for the Software Product made available to You, if any, and (ii)
within the scope of the license type, as described in detail in the annex No. 1
to this EULA, including the permitted number of users, territory and other
attributes specified for the license type You have selected when purchasing the
license. If Your license purchase order does not specify one or more of those
attributes, the license will be (a) a free trial version as specified in the
annex No. 1 hereto; (b) for You as an individual or, if You are a company or
other legal entity, for one named employee.
4.3. You
may not transfer the license or grant any sublicense to the license with the exception of granting of a sublicense to a company
affiliated to You. For the purpose of this section, a
company shall be treated as affiliated to You only if it is controlled by You,
controlling You or under common control with You; and for such purpose control
shall mean the direct or indirect ownership of more than fifty percent (50%) of
the voting interest in such company (“Affiliate”).
4.4. Any and all rights to the Software Products and/or its
components not explicitly granted to You through this EULA remain with the
Provider. This includes copyright, patent, registered and unregistered design,
know-how, trademarks, Software Product names, company names, other marks/signs,
slogans, domains (names), (rights to) software, programming codes, databases,
access data/activation codes/passwords or other industrial or intellectual
property, irrespective of the fact whether the objects are registered or not.
4.5. If
You are a legal entity, the license described in this EULA may be exercised by:
4.5.1. Your
employees or employees of Your Affiliates, who use the license within scope of
their employment only;
4.5.2. Your
or Your Affiliate’s contractors who use the license on a device owned by You or
Your Affiliate and use the license exclusively to provide services to You or
Your Affiliate.
4.6. You
must acquaint your employees or other persons which may use the Software Product
or copies thereof in compliance with the section 4.5 above with all terms and
conditions of this EULA as well as ensure strict compliance with this EULA.
4.7. With the exception of the license type “Free trial”, the
license to the Software Product is granted for a license fee. The amount of
license fee and its payment terms are specified on the license purchase order
or in license offer You have accepted.
4.8. Unless
explicitly allowed by this EULA, the license does not grant You a right to sublicense,
rent, lease, loan, post, upload, publish (including publishing on the
Internet), transmit, or otherwise distribute the activation code, the Software Product or any part of it. You may not make the activation
code, the Software Product or any part of it available
in any form whatsoever to a third party, except as expressly provided in this
EULA. The component parts of the Software Product may not be separated or used
on more than one computer. You shall not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code
or data of the Software Product except to the extent You may be expressly
permitted to decompile under applicable law and if the same effect cannot be
reached by different means. You shall not modify, adapt, translate the Software
Product, the source code or make any other derivative works of it. You may make
a single copy of the software of the Software Product for backup and archival
purposes only provided that any copy must contain all proprietary notices included
in the original.
5. Warranties
5.1. PROVIDER PROVIDES THE SOFTWARE PRODUCT AS
IS AND WITH ALL FAULTS. The Provider does not make AND HEREBY DISCLAIMs ALL
OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY,
INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES, DUTIES OR
CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY
OR COMPLETENESS OF RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK OF
VIRUSES, AND OF LACK OF NEGLIGENCE, ALL WITH REGARD TO THE SOFTWARE PRODUCT,
AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. ALSO, THERE IS NO
WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION,
CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE PRODUCT.
5.2. If
You have entered into this EULA as a consumer (i.e. as a natural person acting
outside his trade, business or profession), the regulation of the previous
section 5.1 does not apply in scope in which it would limit or exclude Your
statutory rights from defects of the Software Product or to damages.
5.3. You
acknowledge that You have been sufficiently acquainted with the Software
Product and its specification prior to the execution of this EULA and are fully
aware of functionalities of the Software Product. You are solely responsible
for determining whether the Software Product is fit for Yours intended use of
the Software Product.
5.4. You
are aware that the Software Product may contain defects, its content may be
inaccurate, and its operation not always smooth. You shall use Your best
efforts to prevent any damage to You or Your data, systems, documents etc.
caused due to defects of the Software Product (in particular (i) back-up Your data before their upload into the Software
Product, (ii) frequently save any results generated through the Software
Product, (iii) use the Software Product in strict compliance with user
documentation, guide and trainings, (iv) use of the Software Product in
configuration recommended by the Provider).
5.5. You
assume sole responsibility for results obtained from Your use of the Software
Product, for conclusions drawn from such use or for managerial decisions made
based on the results.
6. Your
data and results.
6.1. If
You create a work protected by the intellectual property rights using the
Software Product strictly in line with the EULA (such as plans, drawings,
etc.), and such work does not represent a derivative copyrighted work (i.e. it
is not pre-programmed or otherwise pre-determined by the Software Product and
can be separated from the Software Product), You shall acquire all intellectual
property rights to it in compliance with the applicable law.
6.2. The
Provider shall not handle any matters related to the Your copyrighted work or
assume any liability for infringements of third parties’ copyright You may
commit when using the Software Product. You hereby agree to indemnify and hold
the Provider harmless against any and all losses, liabilities, expenses
(including reasonable attorneys’ fees) suffered or incurred by the Provider by
reason of any claim, suit or proceeding arising out of or relating to (i) Your content; (ii) Your (including Your authorized
users’) use of the Software Product, including any results produced by such
use; and (iii) Your (including Your authorized users’) breach of this EULA.
6.3. You
are advised to protect the access data/ activation codes/ passwords provided to
You by the Provider as well as data entered during use of the Software Product.
You shall be responsible for any unauthorized use of the Software Product.
6.4. You
shall immediately report to the Provider the loss of access data/ activation
codes/ passwords or the suspicion of their theft or misuse. In such a case, you
are obliged to take appropriate action (e.g. request
blocking the access data or password reset). You are responsible for any damage
caused by a breach of this obligation.
6.5. You
are advised to make backup copies of data entered into
the Software Product as well as of any results created using the Software
Product. The Provider is not legally obliged to save and provide You the data
after the license term lapses and does not assume liability if the data is for
any reason lost or altered.
6.6. If
the Software Product features allow You to share information or any data with
third parties, the decision to share belongs solely to You, and You assume
responsibility for legality and the effects such sharing might have.
7. Liability
7.1. To
the full extent allowed by the governing law, the Provider shall not bear any
liability, whether based in contract or tort (including negligence), to You or
third parties for incidental, consequential, indirect, punitive, or other
damages of any kind, including loss of profits, revenue or savings, or loss of
time, opportunity, or data, arising out of or in connection with use of the
Software Product, even if You have notified the Provider these could occur. In
no event and regardless of the ground of the claim, will the Provider’s aggregate liability for damages to You
or any other person ever exceed the amount of 5,000.00 € (in words: five
thousand Euro). The regulation of this section 7.1 does
not apply if You have entered into this EULA as a consumer (i.e.
as a natural person acting outside his trade, business or profession), in which
case Provider’s liability towards You shall be in statutory scope.
7.2. The
Provider does not guarantee or is liable for the availability of the Software
Product or for its performance, reliability or responsiveness or any other
performance or time parameters.
8. Personal
data.
8.1. Each
Party remains responsible for compliance with the statutory and regulatory
rules on the protection of personal data applicable to it. This may include also, but not only, 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 (“GDPR”) and the
relevant national laws applicable to each of the Parties.
8.2. Regulation
of this article shall not be interpreted as Provider’s undertaking to submit
itself to the GDPR regulation in circumstances which do not fall within its
scope as delimited by the GDPR.
8.3. If
You enter into this EULA as a legal entity and provide the Provider with
personal data related to any individual persons such as Your authorized users
or contact persons, You undertake to inform these
persons about how their personal data is processed by the Provider in scope
described in this EULA.
8.4. The
Provider, as the controller in sense of the GDPR, collects the following
personal information:
8.4.1. if
You register as an individual person, the Provider collects from You or from
its authorized distributors:
·
Your identification data (e.g. first name,
surname, date of birth, address of permanent residence)
·
Your contact data (e.g. email address, phone
number)
·
Your Login credentials and related information such as security
questions/answers or tokens
·
products or services You may be interested in
·
Your billing information (e.g. Your credit card
or bank details)
·
Software Product access data (e.g. IP address
of the device on which you operate the Software Product, exact time of Software
Product usage, details of your browser and operating system, number of devices
on which the Software Product is accessed)
8.4.2. if
You register as a legal entity, You provide the
Provider, either directly or through its authorized distributor, with personal
data relating to the contact person chosen by You and to Your authorized users,
namely:
·
their identification data (e.g. their name,
surname)
·
information about their employment or similar relationship
·
their contact data (e.g. their email address
and phone number)
·
their Login credentials and related information such as security
questions/answers or tokens
further, the Provider collects Software
Product access data (e.g. IP address of the device on
which you operate the Software Product, exact time of Software Product usage,
details of your browser and operating system) directly from your authorized
users.
8.5. The
data is processed for the duration of the contractual relationship between You
and the Provider and for a subsequent period of 10 years.
8.6. Such
data is processed either based on a contract, i.e.
this EULA, or protection of Provider’s legitimate interests such as enforcing
Software Product usage restrictions and ensuring security, stability and
functionality of the Software Product and its access.
8.7. The
Provider may share the data with its distributor who mediated Your purchase of
the Software Product license on its behalf. Possible recipients of data also
include public administration authorities, courts, legal representatives,
companies providing advisory services to the Provider. Provided the data is
collected within European Union, it is not transferred to a third country and
vice versa.
8.8. Provided
GDPR applies to the personal data processing, each data subject, which may be
either You as an individual person or Your authorized
user or contact person, have the right to information, to rectification or
erasure of personal data, rectification of processing, to object to the
processing, to data portability as well as to complain to a data protection
supervisory authority about processing of its personal data by the Provider.
8.9. Provided
GDPR applies to the personal data processing and the legal basis for processing
of personal data is Provider’s legitimate interest, the data subject can raise
an objection to the processing of its data. This is the case if the processing
is not required (in particular to) fulfil this EULA.
When exercising the right of objection, the Provider requests that the data
subject outlines the reasons why the Provider should not process the data
subject’s personal data in the manner the Provider has described. If the data
subject presents to the Provider its reasons, the Provider shall check the
circumstances and either stop and/or adjust the processing of the data, or present
compelling counterarguments for continuing with the data processing.
8.10. The
Provider has appointed Nicolas Shah as its data protection officer. You may
contact him in matters related to personal data processing via the following
email address dpo@monnoyeur.com.
9. Refences.
9.1. If You are a legal entity, the Provider may
publish Your name as a reference customer on its company website and in other
marketing materials.
10. Code
of Conduct.
10.1. When
using the Software Product, You agree to abide to the
terms of the EULA and the requirements of the applicable law. In any case, You
are not permitted to (a) use the Software Product in breach of the EULA; (b)
use the Software Product for illegal activities; (c) infringe upon intellectual
property rights of the Provider or third parties; (d) act in breach of
Provider’s Privacy
Policy;(d)
submit fake data/contacts, create fake accounts, or use deceptive or false
source-identifying information.
11. Amendments.
11.1. This
EULA may be amended at any time during its term upon the mutual agreement of
You and the Provider. The Provider however reserves the right to change,
modify, add or remove any part of the EULA to a
reasonable extent, in particular the conditions of personal data protection,
license provisions, liability and guarantees provisions, description of license
types, etc. The Provider will notify You of any change in time and make the new
version of the EULA available to You by sending it to the email address You
have used to register Your account with the Provider
or You have identified as Your contact email address. Should You disagree with
the change, You are entitled to terminate this EULA by
written notice with 7 days’ notice period; in such a case, the Provider shall
refund You, proportional to the remaining time of license term. If You do not
notify the Provider within 7 days after receiving notice of the change, the
Provider may rely on Your consent with the notified change to the EULA.
12. Governing
law, disputes and jurisdiction
12.1. This
EULA, including any rights, obligations and claims of the parties shall be
governed by and construed in accordance with the law of the Czech Republic, without reference to the principles of conflict of
laws.
12.2. Any
dispute, claim or controversy arising out of or relating to this EULA,
including the breach, performance, termination, enforcement, interpretation or
validity of this EULA (and whether under contract, tort, including and strict
liability, competition law or otherwise), and including the determination of
the scope or applicability of the dispute resolution provisions of this EULA
(hereinafter “dispute”), will be finally determined by the courts of the
Czech Republic with territorial jurisdiction determined by the registered seat
of the Provider.
12.3. You
shall first attempt to resolve any dispute you may have with the Provider
amicably by contacting the Provider on the following email: […]. Should it turn
out impossible to find an amicable resolution within 30 (thirty) calendar days
from the date when the Provider confirmed receipt of Your complaint or when the
Provider sent complaint to You, the dispute shall be solved through formal
procedure as described above.
12.4. If
You have entered into this EULA as a consumer (i.e. as
a natural person acting outside his trade, business or profession), regulation
of the section 12.2 and 12.3 does not apply. The Provider may bring a claim
with respect to the EULA against You only in the courts of the country where
You reside, and You have the right to bring a claim with respect to the EULA
against the Provider either in the courts of the Czech Republic or in the
courts of the country where You reside. In any case, You and the Provider have
the right to bring a counterclaim in the court in which, in accordance with
this provision, the original claim is pending. Further You may pursue
alternative dispute resolution of any claim You may have against the Provider.
13. Miscellaneous.
13.1. If one or more provisions of this EULA are held
to be invalid or unenforceable or declared as such pursuant to statutory or
regulatory provisions or a final court decision, they shall take full effect if
they have been superseded by similar valid or enforceable provisions. The other
provisions shall remain in force.
13.2. Acceptance by a Party of a breach does not
confer any vested right on the other Party.
13.3. No express or implied waiver constitutes
consent or waiver of any past or future breach.
13.4. In case of difficulty of interpretation or in
case of contradiction between a title and a section, the title is considered
null and void.
13.5. The Parties confirm that it is their wish that
this EULA has been written in the English language. Therefore, the English
language version of this EULA will be the version used when interpreting or
construing this EULA, and any notices or other communications in connection
with this EULA will be provided in the English language.
13.6. Annex No. 1 – License types constitutes an
integral part of this EULA.
Annex No. 1 -
License types
The features of the Software Product available to You and the terms of
use of the Software Product depend on the licence type You have chosen. The
extent of user rights is further detailed in the EULA.
1. Definitions
For
the purpose of this annex, the
following terms shall have the following meaning:
1.1. Update
- a package containing a patch, workaround, improvement, correction
or modification of the Software Product Upgrade which may be from time to time
released by the Provider. Updates are labelled by a decimal number (e.g. 21.1, 21.2);
1.2. Upgrade –
new version of the Software Product with significant changes or improvements
over the Current version which may be from time to time released by the
Provider. Upgrades are labelled by a whole number (e.g. 21.0, 22.0) ;
1.3. Current
version – the latest version (Upgrade) of the Software Product together
with all Updates released by the Provider to this Upgrade to the date of the download;
1.4. Per
user license – license type which requires a separate license for each
individual using the Software Product;
1.5. Per
site license – license type which requires a separate license for each
server on which the Software Product is run. This type of license includes per
job server or per server license.
2. License
types
Different Software Product license types contain different sets of
features and confer upon You different rights to the
Software Product. Depending on Your choice, You will
have access and rights corresponding to one of the following license
options:
License
type: Free trial
License period: 14 days from the
date You have activated this type of license
Versions of the Software Product: 1
version: Current version
Updates, Upgrades: Yes, all Updates
and Upgrades released by the Licensor during the license period
Number of users per license:
·
License
offered as Per user license: 1 user
·
License
offered as Per site license: Unlimited number of users
Territory: Worldwide
Purchase restrictions: You can
obtain this type of license only once
Usage restrictions: Non-commercial
evaluation and use of the Software Product only
License
type: Annual Subscription
License period:12 months
Versions of the Software Product:
Up to 3 versions:
·
Current
version,
·
Upgrade
preceding the Current version with all Updates released to it to the date of
the download,
·
Upgrade
following the Current version, if released during the license period
Updates, Upgrades: Yes, all Updates
and Upgrades released by the Licensor during the license period
Number of users per license:
·
License
offered as Per user license: 1 user
·
License
offered as Per site license: Unlimited number of users
Territory: Worldwide
Purchase
restrictions: None
3. Notes
3.1. Updates, Upgrades
3.1.1. All Updates and Upgrades released after the
beginning of the license term are only made available for download by the
Provider. This applies regardless of their importance. All Updates and Upgrades
therefore need to be downloaded and installed by You manually.
3.1.2. The Provider reserves the right to update or
not to update the Software Product at its sole discretion. You agree and
acknowledge that an Update or Upgrade may result in a change of the
functionality of the Software Product.
3.2. Per user, Per site license
3.2.1. Per user license may not be used
concurrently on different devices. The license may be operated on up to 3
devices. The license may not be transferred, assigned
or otherwise made available to other individual during the term of the license.
3.2.2. Per site license may be concurrently used on
one server. The license may not be used concurrently on different devices.