Terms_and_Conditions_v 2.0.pdf

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OMNICRANE GENERAL TERMS AND CONDITIONS (“Terms”)

1. INTRODUCTORY PROVISIONS 1.1 The Provider: Omnicrane, s.r.o., registration number: 09862251, VAT: CZ09862251, with registered office: Na Širokém I 449, 252 45 Ohrobec, registered in the register of the companies kept by the Municipal Court in Prague under C 343688 ("Provider”) 1.2 The Provider runs the OmniCrane web application based on the SaaS (Software as a Service) principle for effective product management and sales providing functions of leads, contact, campaign, team management, content and templates creation, analytics, product management and related recommendations, which may be accessed through www.omnicrane.com ("Website"). 1.3 Trial OmniCrane and Full OmniCrane services are provided as a tool for Clients who use it for managing, controlling and/or processing the personal data of third parties, including their personal data. However, the Provider does not control nor process such personal data, this is done by the Client who is fully responsible for that. 1.4 The term Client ("Client") refers to any B2B subject that uses the trial version of OmniCrane (“Trial OmniCrane”) or paid version of OmniCrane („Full OmniCrane“) as a legal entity that subscribed to use of Trial OmniCrane or Full OmniCrane. 1.5 The Provider provides OmniCrane exclusively to Clients who are entrepreneurs in connection with their business activities. 1.6 This document constitutes the General Terms and Conditions (“Terms”) within the meaning of Section 1751 of Act No. 89/2012, Civil Code, as amended (the "Civil Code"), and shall apply to Clients who choose to use the Trial OmniCrane and/or the Full OmniCrane. 1.7 The Website contains up-to-date information about OmniCrane's product features of the Full OmniCrane, which the Client may order from the Provider by sending an inquiry/purchase order to Provider's email address stated on the Website or by personal negotiation with a sales representative of the Provider. 1.8 These Terms do not limit the Provider's ability to allow Clients to use OmniCrane on individually agreed terms specified in the order, (hereinafter referred to as the Order).

2. THE SERVICES 2.1 The current features and services are specified on the Website. The scope of available features may change over time. 2.2 User Accounts: 2.2.1 The Full OmniCrane may only be used by user accounts (“User Account”) created by the Client independently or by the Provider on the basis of the Client's authorization, but always within Client’s organization (“Authorized users”). 2.2.2 The following types of User Accounts are distinguished in the Trial and Full Version of OmniCrane: i. Manager and Administrator Account, whereby a user authorized to access an Administrator Account is referred to in these Terms as an Administrator; ii. Salesperson Account, whereby the user authorized to access the Salesperson Account is referred to as Salesperson in these Terms. 2.3 The scope of authorizations associated with each type of User Account is set out on the Website or directly in OmniCrane. 2.4 A User Account may only be used by one user, i.e. a specific individual designated by the Client or the Administrator in the administration of User Accounts. The Client is fully responsible for the proper use of OmniCrane in accordance with these Terms by individual Users. The Client is also responsible for the security of the login credentials to the User Accounts.

3. TRIAL OMNICRANE VERSION 3.1 The Provider offers the Clients to try out a free time-limited trial version of OmniCrane (“Trial OmniCrane“), which is used solely to familiarize themselves with the features and user environment of OmniCrane, bearing in mind that the scope of features of the Trial OmniCrane may differ from the Full OmniCrane and may change over time. 3.2 Access to and authorization to use the Trial OmniCrane can be gained by registering for free as instructed on the Website or by authorizing the Provider to perform the registration. During the registration process, the Client provides the required information. Before completing the registration, the Client confirms that they have read and agree to these Terms. 3.3 Upon completion of registration for the OmniCrane Trial, a trial user account for the Client (Trial Account) will be created. 3.4 The Trial Account shall, to the extent permitted by the current functionality of the Trial OmniCrane, have the same or similar user rights and possibilities as the Account in the Full OmniCrane. 3.5 The Trial OmniCrane may be used by the Client for a limited period of 30 days after registration (“Trial Period”). This period may be extended in exceptional cases by mutual agreement between the Client and the Provider. 3.6 Before the Trial OmniCrane expiry, the Client may subscribe for the Full OmniCrane. If the transition to the Full OmniCrane is not made within this period, the Trial OmniCrane and the associated user data will be deleted. 3.7 The use of the Trial OmniCrane is subject to all obligations and restrictions set out in these Terms, except for those obligations and restrictions which by their nature apply only to the use of the Full OmniCrane.

4. FULL OMNICRANE VERSION 4.1 OmniCrane may be used as a paid service (“Full OmniCrane”) under these Terms. 4.2 The Provider shall provide the Client with the services of enabling access to and use of OmniCrane by the Client and the Client shall pay the Provider a Fee for the services provided in the amount and manner described in Article 6 (Fee and Payment Terms). 4.3 If the Client wishes to upgrade to Full OmniCrane, the Client send Order as a request for Full OmniCrane to the Provider’s email address set out on the Website or to the Provider's authorized sales representative. The Order is based either directly from the Client on the basis of information obtained on the Website or on an individually submitted offer from the Provider (hereinafter referred to as the Offer) and shall always contain at least the following information: a) the Client’s identification and billing information; b) the name and surname of the contact person, including contact e-mail and telephone number; c) the number of User Account and their additional functionalities that should be available to the Client d) The total price of the service in the form of a monthly fee unless another payment period is expressly agreed in the submitted Offer and subsequent Order 4.4 The Client shall provide complete and correct information. In the event of a breach of this obligation, the Client shall be liable for any damages arising from such breach. The Provider is not obliged to check or verify the accuracy and truthfulness of the data provided. 4.5 Prior to submitting an order, the Client confirms that they have read these Terms and agree to them. 4.6 Provider’s obligation to provide the services as regulated by these Terms commences upon payment of the applicable Fee for the first Period. If the Full OmniCrane services commences during the calendar month, the proportional part of first monthly fee is charged. 4.7 The Full OmniCrane shall be provided for an indefinite period of time unless otherwise specified in the Order between the Provider and the Client (hereinafter referred to as the "Period"). 4.8 The Client will receive an invoice from the Provider for payment of the Fee for the following calendar month well in advance (the so-called SaaS Subscription). Payment of this invoice by the due date will allow the Client to use the Full OmniCrane service in the following calendar month. This may be done repeatedly. 4.9 If the Fee is not duly paid, the Period expires which does not affect the settlement of the Client's obligations set out in the Order. 4.10 Prior to the expiration of the Period, the Client may export their data using the leads and contact export function producing the CSV file containing details of leads and contacts generated through Trial OmniCrane or Full OmniCrane. Upon the expiry of the Period, the account and all data are deleted

5. SERVICE AVAILABILITY 5.1 The Provider guarantees the availability of Full OmniCrane, i.e. the access to OmniCrane and use of all currently available features of OmniCrane, to the extent of 99% in a calendar month. 5.2 In the event that the availability of Full OmniCrane falls below 99% in a calendar month, the Client shall be entitled to apply a discount to the Fee for that calendar month in the following amount: i. for availability between 95-98.99%, the Client shall be entitled to apply for a discount of 10%; ii. for availability between 90-94.99%, the Client shall be entitled to apply for 25% discount; iii. for availability below 90%, the Client shall be entitled for 50% discount. 5.3 For the purposes of calculating the availability, interruptions in availability resulting from scheduled maintenance of OmniCrane shall be excluded. The Provider shall notify the Client of scheduled maintenance at least 2 days in advance and will not perform scheduled maintenance on business days between 6:00 AM and 10:00 PM CET. 5.4 The guarantee of availability of Full OmniCrane is subject to the Client meeting the technical requirements for hardware and software to access OmniCrane as set forth on the Website, such as browser requirements and internet connection bandwidth. 5.5 The Provider shall not be liable, and therefore the provisions regarding the guaranteed availability shall not apply, for interruptions in the availability of OmniCrane resulting from the actions of third parties including but not limited to outages of cloud server infrastructure providers such as AWS, force majeure, i.e. In the event of events beyond the Provider's control (such as natural disasters, failures of distribution or telecommunications networks, international sanctions, states of war, terrorist attacks, etc.) or as a result of such circumstances that the Provider could not reasonably foresee.

6. FEE AND PAYMENT TERMS 6.1 The amount of the fee for Full OmniCrane is corresponding to the number of authorized (licensed) users and the number of services of the Client, which is specified in the Order. In the case of a Period defined for an indefinite period, the fee may be changed upon one month's notice sent by the Provider before the new fee takes effect. If the Client has an Order for an indefinite period and does not agree with the new published price, the Client may terminate the use of the Full OmniCrane Service on the effective date of the new price. 6.2 The Fee is always payable in advance based on an invoice issued by the Provider and sent to the Client's contact email address. The Fee shall be deemed to be paid only when the relevant amount is credited to the Provider's bank account indicated on the invoice.

7. UPLOADED CONTENT AND UNAUTHORZIED USE 7.1 Passivity and neutrality of the Provider in relation to user data uploaded to OmniCrane: 7.1.1. Content and data uploaded by the Client to OmniCrane is not reviewed or edited by the Provider and the Provider is not responsible for any defective content or the appearance of the content uploaded by the Client. 7.1.2. Further, the Provider is not responsible for the completeness, accuracy or truthfulness of the content posted on OmniCrane, nor for any infringement by the Client through OmniCrane, including infringement of personality rights or intellectual property rights. 7.2 Notification of content infringement: 7.2.1. In order to prevent the violation or threat of third party rights by the operation of OmniCrane, the Provider accepts any notices from third parties that contain information that the operation of OmniCrane infringes the copyright or other intellectual property rights of third parties, (Notices). 7.2.2. Notices shall be received by the Provider at the email address: contact@omnicrane.com 7.2.3. A Notice shall be deemed to have been received if its receipt is acknowledged by the Provider by an e-mail message sent to the Notifier's address and containing at least the following information: i. details of the person making the Notification, including their contact details, in particular their email address and name; ii. a description of the activity that violates or threatens the rights of third parties or the law within OmniCrane; iii. a description how the violation of third party rights or the law occurs; iv. the identity of the person whose rights are being infringed (if different from the whistleblower) and documentation showing the authority to dispose of the infringing right. 7.2.4. In the event that any data uploaded by the Client is suspected of infringing copyright, the Notification must also specify: i. to which copyrighted work such rights relate; and ii. who is the authorized exerciser of those rights. 7.2.5. The Provider shall not be obliged to notify the Client whose uploaded data is the subject of the Notice of the delivery of the Notice, nor to seek the Client's comments. 7.3 Removing or making unavailable the objectionable content and/or data: 7.3.1. If the Provider becomes aware that the data uploaded by Client infringes the rights of third parties, the Provider shall promptly remove or make unavailable the defective data at their discretion to prevent further operation of OmniCrane from infringing the rights of third parties. 7.3.2. The Provider shall not be liable for any harm caused to Client or User in connection with the removal or making unavailable of the data.

7.4 Malicious emails: 7.4.1. Furthermore, the Provider accepts Notices that the Client uses either Trial OmniCrane or Full OmniCrane in a way that may be potentially harmful to Provider, their clients, and or to general public, in particular that they use the email contacts that are from doubtful sources that lead to high bounce rate and that may be blocked by the Provider or email sender provider, or that may be marked as junk. Such Notice may lead to immediate interruption of OmniCrane service to the Client either in full, or with respect to specific campaign, upon decision of the Provider.

8. PERSONAL DATA PROTECTION 8.1 The Provider has no capacity over the data of third parties that the Client enters into OmniCrane application. 8.2 The Provider processes Client’s personal data for the purpose of providing its services and operating the Website in accordance with the legal provisions relating to the processing and protection of personal data, in particular, but not exclusively, Regulation (EU) 2016/679 (GDPR), Act No. 110/2019 Coll, on the processing of personal data, as amended, and any judicial or administrative interpretation of legislation relating to the processing and protection of personal data, any guidelines, codes of conduct or approved certification mechanisms issued by the Data Protection Authority. Details regarding the processing of User Personal Data by the Provider are set out at [Privacy Policy].

9. PROVIDER'S LIABILITY 9.1 The Provider is not liable for any damages incurred by the Client as a result of or in connection with the failure, unavailability, inoperability or limited functionality of OmniCrane or the loss of user data uploaded to OmniCrane (without prejudice to the Client’s right to claim a discount on the Fee for the non-availability of Full OmniCrane). 9.2 The Client is responsible for the accuracy, completeness and truthfulness of the user data uploaded into OmniCrane. The Provider does not and cannot control the accuracy, completeness and truthfulness of data, and therefore shall not be liable for damages resulting from incorrect or incomplete output from OmniCrane based on incorrect, incomplete or untruthful data. 9.3 Furthermore, the Provider shall not be liable for any harm resulting from any misconduct, errors in the administration and setup of User accounts. 9.4 If for any reason any preceding provision of this clause proves invalid and/or ineffective, the Provider's liability for damages to Client shall be limited to an aggregate maximum amount equal to the Fee paid to Provider by Client for the applicable Validity Period in which such damages occur.

10. LICENSE 10.1 The license to use the Trial OmniCrane and the Full OmniCrane granted by the Provider is: i. limited in time, with the Trial OmniCrane being limited to the Trial Period and the Full OmniCrane being limited to the Period; ii. non-exclusive with respect to any specific Client since it is multi-tenant SaaS; iii. worldwide; iv. for the sole use by Client’s Authorized Users. 10.2 The Client shall not, without the Provider’s prior written consent, permit the use of OmniCrane by any person other than Authorized Users as defined herein. 10.3 The Client may not assign the license granted to it to a third party (including assignment of the license as part of a transfer of the Client’s business or part thereof) or sublicense it.

11. COMPLAINTS, CLAIMS 11.1 If the Client assesses a claim against the Full OmniCrane, the Client has the right to terminate the service only if the reason for the complaint is a material defect in OmniCrane. 11.2 Substantial defects shall mean in particular the non-functionality of OmniCrane to such an extent that it fails to perform its essential functions, where it must have been obvious to the Provider at the time of subscription to OmniCrane that under such conditions the Client would not have been interested in subscribing to OmniCrane at all if they had expected such a breach. 11.3 For the avoidance of doubt, it is stipulated that no claim may be made for any defects of Trial OmniCrane, which is provided to the Client solely for the purpose of testing OmniCrane's features and user experience.

12. TERMINATION OF THE SERVICE 12.1 Except as otherwise expressly provided in these Terms and Conditions or in the Order, neither party shall be entitled to unilaterally terminate the Service outside the agreed Service Period, except as expressly permitted by applicable law. 12.2 The Client shall be entitled to terminate the service by serving a written notice delivered to the Provider if the Provider unilaterally amends, supplements or otherwise modifies the Terms. The notice must be delivered to the Provider no later than the effective date of the new version of the Terms, in which case it shall become effective on the effective date of the new version of the Terms. 12.3 The Provider shall be entitled to unilaterally terminate the service by written notice if the Client commits a material Breach and the Client fails to remedy such breach even within an additional period of 5 (five) working days from the date on which the breach was brought to the Provider's attention. In such case, the Client shall not be entitled to a refund of the Fee already paid for the relevant Period.

13. DELETION OF USER DATA AND ACCOUNTS 13.1 Upon expiration of the service, all of Client's data will be automatically deleted. 13.2 The Provider shall not be liable for any loss or corruption of data or damage resulting from the loss or corruption of such data during migration, regardless of the reason for or extent of such loss or corruption. 13.3 The Provider shall not be liable for the loss or corruption of any Data or damage resulting from the loss or corruption of such data, if caused by third parties or Client’s users. 13.4 Discontinuation of the provision of services: The Provider may suspend the performance hereof and restrict Client's access to OmniCrane if the Client materially breaches these Terms. A material breach means: i. use of the OmniCrane license in violation of the license; and/or ii. posting any data that infringe the rights of third parties, in particular intellectual property rights; and/or iii. posting the data that the Provider finds to be indecent, unethical or otherwise violates public policy or the reputation of the Provider; and/or iv. knowingly bringing the Provider into disrepute; and/or v. event of non-payment of the Fee. 13.5 The Provider will notify the Client of the material breach to the email provided in the OmniCrane Order form. 13.6 As a result of Provider's lawful suspension of the Services due to a Serious Breach, the Client shall not be entitled to a refund of the Fee paid for the applicable Period or any portion thereof.

14. PROVIDED SUPPORT 14.1 Trial OmniCrane and Full OmniCrane is provided as a self-care service that is tailored in order to allow the Client to use it without Provider’s actions. However, the Client may: i. use the supporting documentation and tutorial on the Website, and other communication channels and platforms of the Provider (e.g. YouTube and others) ii. send an inquiry or question to support@omnicrane.com or directly by telephone to your sales representative, whereas the Provider usually replies within 48 hours.

15. FINAL PROVISIONS 15.1 The contractual terms, including these Terms and Order form, is stored by the Provider in electronic form and will be sent to the Client's e-mail address upon written request. 15.2 The Provider is entitled to unilaterally modify or amend these Terms in the case of a Period defined as indefinite. In the case of a Period of Indefinite duration, the original Terms shall cease to apply after the new version of the Terms becomes effective. In this case, the Provider will inform the affected Clients of the changes to the Terms at least 1 month before they take effect and will also publish the new version of the Terms on the Website. If the affected Clients continue to use the OmniCrane Service after the effective date of the new version of the Terms, they shall be deemed to have accepted the new version of the Terms. 15.3 In the event that any provision of these Terms is or becomes invalid or ineffective, the remaining provisions of these Terms shall remain valid and effective. The parties shall replace the invalid or ineffective provision with another provision which is valid and effective and which best corresponds in content and intent to the content and intent of the original provision. 15.4 The Client and the Provider hereby assume the risk of change of circumstances within the meaning of Section 1765(2) of the Civil Code. 15.5 Unless explicitly permitted by the Provider, the Client is not entitled to assign its claim to a third party without Provider's prior written consent. 15.6 Except as otherwise provided in the Provider, the Client may not set off any of their claims against any of Provider's claims (whether due or not yet due) without Provider's prior written consent. 15.7 Unless otherwise expressly stated, each party shall bear all costs and expenses incurred by it in connection with the execution and performance hereof. 15.8 The legal relations of the parties hereto including these Terms and all rights of the Client and the Provider arising out of or in connection herewith or its termination shall be governed by the laws of the Czech Republic. 15.9 Jurisdiction to resolve any dispute arising out of, in connection with or in connection herewith or its termination shall lie with the courts of the Czech Republic having subject matter and territorial jurisdiction. 15.10 This Terms are written in both Czech and English. In the event of any inconsistencies or discrepancies between the Czech and English versions of this document, the English version of this document shall prevail.