END-USER
LICENCE AGREEMENT FOR Be.Smart T4R
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.