ELMA365 SERVICE AGREEMENT
This ELMA365 Service Agreement, including its exhibits, (the “Agreement”) is concluded
BY AND BETWEEN
ELMA365 Global a.s. having a registered business address at Panenská 23, Bratislava, 811 03, Slovakia, and the company number 53 261 25 (“ELMA365”)
The individual or entity as indicated herein below in the signature block to this Agreement (the “Client”).
ELMA365 and the Client are hereby collectively referred to as the “Parties” and each individually a “Party”. The Agreement contains the terms and conditions that govern Client’s access to and use of the software-as-a-service available at https://elma365.com, the related software and services (collectively, the “Services”). This Agreement takes effect when both Parties execute this Agreement, or as of the specifically set date, or earlier when the Client effectively starts using the Services for the first time (the “Effective Date”). The Client hereby represents to ELMA365 that the Client is lawfully able to enter into legally binding contracts. If the person signing this Agreement is entering into this Agreement on behalf of an entity, the signatory represents to ELMA365 that the signatory has the legal authority to bind that entity.
1. Use of the Services.
1.1 General. The Client may access and use the Services in accordance with this Agreement , ELMA365 Website Terms and Conditions (the “Terms”), and the terms and conditions that apply to certain Services. The Client will comply with the terms of this Agreement and all laws, rules, and regulations applicable to the Client’s use of the Services.
1.2. To access the Services, the Client must have an ELMA365365 account associated with a valid email address and a valid form of payment (the “Account”). Unless explicitly permitted by the Terms, the Client may only create one Account per email address.
1.3 Third-Party Content. The content made available to the Client through the Services or in conjunction with the Services (the “Third-Party Content”) may be used by the Client at Client’s election. Third-Party Content is governed by this Agreement and, if applicable, separate terms and conditions accompanying such Third-Party Content, which terms and conditions may include separate fees and charges.
1.4 List of the Services. The list of the Services and the specifications related thereto are provided in Annex I to the Agreement.
1.5 Software license. The software license applicable to the Client’s access and use of the software associated with the Services (the “Software”) is provided in Annex III to the Agreement.
2.1 Services. ELMA365 may, at its sole discretion, change or discontinue any of the Services from time to time. ELMA365 agrees to provide the Client with at least 3-months’ prior notice if ELMA365 discontinues material functionality of a Service that the Client is using, or materially alter a customer-facing API that the Client is using in a backward-incompatible fashion, except that this notice will not be required if the 3-months’ notice period (a) would pose a security or intellectual property issue to ELMA365 or the Services, (b) is economically or technically burdensome, or (c) would cause ELMA365 to violate legal requirements.
2.2 Agreement. ELMA365 may change this Agreement from time to time in accordance with Section 12.
3. Security and Data Privacy.
3.1 Security. Without limiting Section 10 or Client’s obligations under Section 4.2, ELMA365 will implement reasonable and appropriate measures to secure any content submitted or generated by the Client through the Services (the “Client’s Content”) against accidental or unlawful loss, access or disclosure.
3.2 Storage and disclosure of the Client’s Content. If the functionalities of the Services permit it, the Client may specify the regions in which the Client’s Content will be stored. ELMA365 will not access or use the Client’s Content except as necessary to maintain or provide the Services, or as necessary to comply with the law or a binding order of a governmental body. ELMA365 will not (a) disclose the Client’s Content to any government or third party or (b) subject to Section 3.4, move the Client’s Content from the regions selected by the Client; except in each case as necessary to comply with the law or a binding order of a governmental body. Unless it would violate the law or a binding order of a governmental body, ELMA365 will give the Client notice of any legal requirement or order referred to in this Section 3.2.
3.3 The Service Data. To provide billing and administration services, ELMA365 may process means Services usage data related to the Account, such as resource identifiers, metadata tags, security and access roles, rules, usage policies, permissions, usage statistics, and analytics, (the “Service Data”) in the region(s) where the Client uses the Services and the respective regions globally. To provide the Client with support services initiated by the Client and investigate fraud, abuse, or violations of this Agreement, ELMA365 may process the Service Data where ELMA365 maintains its support and investigation personnel.
4. Client’s Responsibilities.
4.1 Accounts. Except to the extent caused by ELMA365’s breach of this Agreement, (a) the Client is responsible for all activities that occur under the Account, regardless of whether the activities are authorized by the Client or undertaken by the Client, Client's employees, any individuals or entities that directly or indirectly access or use the Client’s Content (the “Authorised Users”), or a third party, and (b) ELMA365 and its affiliates shall not be responsible for unauthorized access to the Account.
4.2 The Client’s Content. The Client will ensure that the Client’s Content and the Client’s or Authorised User’s use of the Client’s Content or the Services will not violate this Agreement or any applicable law. The Client is solely responsible for the development, content, operation, maintenance, and use of the Client’s Content.
4.3 Security and Backup. The Client is responsible for properly configuring and using the Services and otherwise taking appropriate action to secure, protect, and backup the Account and the Client’s Content in a manner that will provide appropriate security and protection, which might include the use of encryption to protect the Client’s Content from unauthorized access and routinely archiving the Client’s Content.
4.4 Log-In Credentials and Account Keys. The log-in credentials and private keys generated by the Services are for Client’s internal use only and the Client will not sell, transfer or sublicense them to any other entity or person, except the Authorised Users.
4.5 Authorised Users. The Client will be deemed to have taken any action that the Client permits, assists or facilitates any person or entity to take related to this Agreement, the Client’s Content or use of the Services. The Client is responsible for the Authorised Users ’use of the Client’s Content and the Services. The Client will ensure that all Authorised Users comply with Client’s obligations under this Agreement and that the terms of Client's agreement with each Authorised User are consistent with this Agreement. If the Client becomes aware of any violation of Client's obligations under this Agreement caused by an Authorised User, the Client will immediately suspend access to the Client’s Content and the Services by such Authorised User and inform ELMA365 immediately of such violation. ELMA365 does not provide any support or services to Authorised Users unless ELMA365 has a separate agreement with the Client obligating ELMA365 to provide such support or services.
5. Fees and Payment.
5.1 Service Fees. As compensation for the Services, the Client shall pay to ELMA365 the fees defined in Annex II to the Agreement (the “Service Fees”) by using the payment details provided by ELMA365 in the invoice issued to the Client (the “Invoice”). The Service Fees are due on the date indicated in the Invoice. Should the Client fail to pay the Invoice before the due date, ELMA365 reserves the right to suspend or terminate the Services and charge interest on any amounts due until the total of Service Fees due is paid in full. The Client shall be responsible for covering all collection costs, including legal costs on an indemnity basis, incurred as a result of collecting any overdue amounts, including interest at the rate of 0,5% per month (or the highest rate permitted by law, if less) on all late payments. The Client agrees not to hold ELMA365 liable for payments that do not reach ELMA365 due to Client’s failure to quote correct payment information or if Client’s payment is refused for any other reason. The Client shall be solely responsible for the payment of any and all fees to any third-party payment processor involved in the processing of the Service Fees, including, but not limited to, payment service fees.
5.2 Calculation of the Service Fees. ELMA365 calculates and charges the Service Fees monthly, once in 6 months, or yearly, as agreed with the Client. ELMA365 reserves the right to bill the Client more frequently for fees accrued if ELMA365 suspects that the Account is fraudulent or at risk of non-payment. All amounts payable by the Client under this Agreement will be paid to ELMA365 without setoff or counterclaim and without any deduction or withholding. Fees and charges for any new Services or new feature of the Services will be effective upon ELMA365's posting of the updated Service Fees and charges on the ELMA365 website unless ELMA365 expressly states otherwise in a notice. ELMA365 may increase or add new fees and charges for any existing Services the Client is using by giving the client at least 30-days’ prior notice. 5.3 Taxes. Each Party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that Party upon or with respect to the transactions and payments under this Agreement. All fees payable by the Client are exclusive of any applicable sales or other taxes (the "Indirect Taxes”), except where applicable law requires otherwise. ELMA365 may charge and the Client agrees to pay applicable Indirect Taxes that ELMA365 is legally obligated or authorized to collect from the Client. The Client will provide such information to ELMA365 as reasonably required to determine whether ELMA365 is obligated to collect Indirect Taxes from the Client. ELMA365 will not collect, and the Client will not pay, any Indirect Tax for which the Client furnishes ELMA365 a properly completed exemption certificate or a direct payment permit certificate for which ELMA365 may claim an available exemption from such Indirect Tax. All payments made by the Client to ELMA365 under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required on any payment, the Client will pay such additional amounts as are necessary so that the net amount received by ELMA365 is equal to the amount then due and payable under this Agreement. ELMA365 will provide the Client with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement.
6. Temporary Suspension.
6.1 General. ELMA365 may suspend the Client's or any Authorised User’s right to access or use any portion or all of the Services immediately upon notice to the Client if ELMA365 determines:
- (a) Client’s or an Authorised User’s use of the Services (i) poses a security risk to the Servicesor any third party, (ii) could adversely impact ELMA365's systems, the Services, or any other ELMA365 customer, (iii) could subject ELMA365, its affiliates, or any third party to liability, or (iv) could be fraudulent;
- (b) the Client or the Authorised User breaches any provision of this Agreement;
- (c) the CLient is in breach of the payment obligations under Section 5;
- (d) the Client has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Client’s assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
6.2 Effect of Suspension. If ELMA365 suspends Client's right to access or use any portion or all of the Services:
- (a) the Client remains responsible for all fees and charges the Client incurs during the period of suspension;
- (b) the Client will not be entitled to any service credits for any period of suspension.
7. Term and Termination.
7.1 Term. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated under this Section 7. Any notice of termination of this Agreement by either Party to the other must include a termination date that complies with the notice periods in Section 7.2.
- (a) Termination for Convenience. The Client may terminate this Agreement for any reason by providing ELMA365 a written notice and closing the Account for all Services for which ELMA365 provides an Account closing mechanism. ELMA365 may terminate this Agreement for any reason by providing at least 30 days’ advance notice to the Client.
- (b) Termination for Cause.
- (i) Either Party may terminate this Agreement for cause if the other Party is in material breach of this Agreement and the material breach remains uncured for a period of 30 calendar days from receipt of notice by the other Party. No later than the termination date, the Client will close the Account.
- (ii) ELMA365 may also terminate this Agreement immediately upon notice to the Client (A) for cause if ELMA365 has the right to suspend under Section 6, (B) if ELMA365’s relationship with a third-party partner who provides software or other technology ELMA365 uses to provide the Services expires, terminates or requires ELMA365 to change the way ELMA365 provides the software or other technology as part of the Services, or (C) in order to comply with the law or requests of governmental entities.
7.3 Effect of Termination.
- (a) General. Upon the termination date:
- (i) except as provided in Section 7.3(b), all Client’s rights under this Agreement immediately terminate;
- (ii) the Client remains responsible for all fees and charges the Client has incurred before the termination date and the Client is responsible for any fees and charges the CLient incurs during the post-termination period described in Section 7.3(b);
- (iii) the Client will immediately return or, if instructed by us, destroy all content belonging to ELMA365 in Client's possession;
- (iv) Sections 4.1, 5, 7.3, 8 (except Section 8.3), 9, 10, 11, 13 and 14 will continue to apply in accordance with their terms.
- (a) Post-Termination. Unless ELMA365 terminates Client's use of the Services pursuant to Section 7.2(b), during the 30 days following the termination date:
- (i) ELMA365 will not take action to remove from the ELMA365 systems any of the Client’s Content as a result of the termination;
- (ii) ELMA365 will allow the Client to retrieve the CLient's Content from the Services only if the Client has paid all amounts due under this Agreement. For any use of the Services after the termination date, the terms of this Agreement will apply and the Client will pay the applicable fees at the rates under Section 5.
8. Proprietary Rights.
8.1 The Client's Content. Except as provided otherwise in this Agreement, ELMA365 obtains no rights under this Agreement from the Client (or Client's licensors) to the Client's Content. The Client hereby consents to ELMA365’s use of the Client's Content to provide the Services to the Client and any Authorised Users.
8.2 Adequate Rights. The Client hereby represents and warrants to ELMA365 that: (a) The Client or its licensors own all right, title, and interest in and to the Client’s Content; (b) the Client has all rights in the Client’s Content necessary to grant the rights contemplated by this Agreement; and (c) none of the Client’s Content or Authorised Users ’use of the Client's Content or the Services will violate this Agreement.
8.3 Restrictions. Neither the Client nor any Authorised User will use the Services in any manner or for any purpose other than as expressly permitted by this Agreement. Neither the Client nor any Authorised User will, or will attempt to (a) reverse engineer, disassemble, or decompile the Services or any content related to the Services (the “ELMA365 Content”) or apply any other process or procedure to derive the source code of any software included in the Services or ELMA365 Content (except to the extent applicable law doesn’t allow this restriction), (b) access or use the Services or ELMA365 Content in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (c) resell the Services or ELMA365 Content. The Client is not allowed to use any trademarks or service marks related to the Services or ELMA365 without written prior permission from ELMA365. The Client will not misrepresent or embellish the relationship between ELMA365 and the Client (including by expressing or implying that ELMA365 supports, sponsors, endorses, or contributes to the Client or yits business endeavors). The Client will not imply any relationship or affiliation between ELMA365 and the Client except as expressly permitted by this Agreement.
8.4 Suggestions. If the Client provides any feedback or suggestions (collectively, the “Suggestions”) to ELMA365 or its affiliates, ELMA365 and its affiliates will be entitled to use the Suggestions without restriction. The Client hereby irrevocably assigns to ELMA365 all right, title, and interest in and to the Suggestions and agree to provide ELMA365 any assistance ELMA365 may require to document, perfect, and maintain ELMA365’s rights in the Suggestions.
9.1 General. The Client will defend, indemnify, and hold harmless ELMA365, its affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any losses arising out of or relating to any third-party claim concerning: (a) Client's or any Authorised Users ’use of the Services (including any activities under the Account and use by Client's employees and personnel); (b) breach of this Agreement or violation of applicable law by the Client, Authorised Users or the Client’s Content; or (c) a dispute between the Client and any Authorised User. The Client will reimburse ELMA365 for all attorneys’ fees, as well as ELMA365's employees’ and contractors’ time and materials spent responding to any third-party subpoena or other compulsory legal order or process associated with third party claims described in (a) through (c) above at ELMA365’s then-current hourly rates.
9.2 Intellectual Property.
- (a) Subject to the limitations in this Section 9, ELMA365 will defend the Client and its employees, officers, and directors against any third-party claim alleging that the Services infringe or misappropriate that third party’s intellectual property rights.
- (b) Subject to the limitations in this Section 9, the Client will defend ELMA365, its affiliates, and their respective employees, officers, and directors against any third-party claim alleging that any of the Client's Content infringes or misappropriates that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement.
- (c) Neither Party will have obligations or liability under this Section 9.2 arising from infringement by combinations of the Services or the Client's Content, as applicable, with any other product, service, software, data, content or method. In addition, ELMA365 will have no obligations or liability arising from Client’s or any Authorised User’s use of the Services after ELMA365 has notified the Client to discontinue such use. The remedies provided in this Section 9.2 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights by the Services or by the CLient’s Content.
- (d) For any claim covered by Section 9.2(a), ELMA365 will, at its election, either: (i) procure the rights to use that portion of the Services alleged to be infringing; (ii) replace the alleged infringing portion of the Services with a non-infringing alternative; (iii) modify the alleged infringing portion of the Services to make it non-infringing; or (iv) terminate the allegedly infringing portion of the Services or this Agreement.
9.3 Process. The obligations under this Section 9 will apply only if the Party seeking defense or indemnity: (a) gives the other Party prompt written notice of the claim; (b) permits the other Party to control the defence and settlement of the claim; and (c) reasonably cooperates with the other Party (at the other Party’s expense) in the defence and settlement of the claim. In no event will a Party agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other Party.
THE SERVICES ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, ELMA365 AND ITS AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES OR THE THIRD-PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SERVICES OR THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.
11. Limitations of Liability.
ELMA365 AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO THE CLIENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER ELMA365 NOR ANY OF ITS AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) CLIENT’S INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR CLIENT'S USE OF OR ACCESS TO THE SERVICES, (II) ELMA365'S DISCONTINUATION OF ANY OR ALL OF THE SERVICES, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SERVICE LEVEL AGREEMENTS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY THE CLIENT IN CONNECTION WITH THIS AGREEMENT OR CLIENT’S USE OF OR ACCESS TO THE SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF CLIENT’S CONTENT OR OTHER DATA. IN ANY CASE, EXCEPT FOR PAYMENT OBLIGATIONS UNDER SECTION 9.2, ELMA365’S AND ITS AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT THE CLIENT ACTUALLY PAYS ELMA365 UNDER THIS AGREEMENT FOR THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE. THE LIMITATIONS IN THIS SECTION 11 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
12. Modifications to the Agreement.
ELMA365 may modify this Agreement at any time by posting a revised version on the ELMA365 website or by otherwise notifying the Client in accordance with Section 13.9; provided, however, that ELMA365 will provide at least 30-days’ advance notice in accordance with Section 13.9 for adverse changes. By continuing to use the Services after the effective date of any modifications to this Agreement, the Client agrees to be bound by the modified terms.
13.1 Assignment. The Client will not assign or otherwise transfer this Agreement or any of Client’s rights and obligations under this Agreement, without ELMA365’s prior written consent. Any assignment or transfer in violation of this Section 13.1 will be void. ELMA365 may assign this Agreement without yClient's consent (a) in connection with a merger, acquisition or sale of all or substantially all of ELMA365's assets, or (b) to any affiliate or as part of a corporate reorganization; and effective upon such assignment, the assignee is deemed substituted for ELMA365 as a party to this Agreement and ELMA365 is fully released from all of its obligations and duties to perform under this Agreement. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assigns.
13.2 Entire Agreement. This Agreement incorporates all the documents, policies, and procedures (collectively, the “Policies”) adopted by ELMA365 by reference and is the entire agreement between the Client and ELMA365 regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between the Client and ELMA365, whether written or verbal, regarding the subject matter of this Agreement. ELMA365 will not be bound by, and specifically object to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) including for example, any term, condition or other provision (a) submitted by the Client in any order, receipt, acceptance, confirmation, correspondence or other document, (b) related to any online registration, response to any request for bid, request for proposal, request for information, or other questionnaire, or (c) related to any invoicing process that the Client submits or require ELMA365 to complete. If the terms of this Agreement are inconsistent with the terms contained in any Policy, the terms contained in this Agreement will control.
13.3 Force Majeure. ELMA365 and oits affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond ELMA365's reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
13.4 Governing Law. This Agreement shall be governed by the laws of Slovakia.
13.5 Disputes. Any dispute or claim relating in any way to Client's use of the Services, or to any products or services sold or distributed by ELMA365 will be resolved by arbitration in accordance with the then-applicable rules of the Arbitration Court in Bratislava (“RSvB”), which is authorized to resolve disputes in accordance with the Act no. 244/2002 Coll.. The arbitration will take place in Bratislava. There will be three arbitrators. The fees and expenses of the arbitrators and the administering authority, if any, will be paid in equal proportion by the Parties and in line with the Act no. 244/2002 Coll or then valid and effective legislature in the Slovak Republic.
13.6 Independent Contractors & Non-Exclusive Rights. ELMA365 and the Client are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither Party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Both Parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other Party, and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other Party’s products or services.
13.7 Language. All communications and notices made or given pursuant to this Agreement must be in the English language. If ELMA365 provides a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.
13.8 Confidentiality and Publicity. The Client may use ELMA365’s confidential information only in connection with Client's use of the Services as permitted under this Agreement. The Client will not disclose ELMA365’s confidential information during the term of this Agreement or at any time during the 5-year period following the end of the term. The Client will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of ELMA365’s confidential information, including, at a minimum, those measures the Client takes to protect its own confidential information of a similar nature. The Client will not issue any press release or make any other public communication with respect to this Agreement or Client's use of the Services.
- (a) To the Client. ELMA365 may provide any notice to the Client under this Agreement by: (i) posting a notice through the Services; or (ii) sending a message to the email address then associated with the Account. Notices ELMA365 provides by posting through the Services will be effective upon posting and notices ELMA365 provides by email will be effective when ELMA365 sends the email. It is the Client’s responsibility to keep its email address current. The Client will be deemed to have received any email sent to the email address then associated with the Account when ELMA365 sends the email, whether or not the Client actually receives the email.
- (b) To ELMA365. To give ELMA365 notice under this Agreement, the Client must contact ELMA365 by email or personal delivery, overnight courier or registered or certified mail to the mailing address specified in this Agreement below.
ELMA365 reserves the right to update the email or mailing address for notices by posting a notice on the ELMA365's website. Notices provided by personal delivery will be effective immediately. Notices provided by email or overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
13.10 No Third-Party Beneficiaries. Except as set forth in Section 9, this Agreement does not create any third-party beneficiary rights in any individual or entity that is not a Party to this Agreement.
13.11 Government Rights. The Services are not usually provided to any government. If the Client is a governmental body, representative of any governmental organization or an entity in the public sector - the Client should immediately inform ELMA365 before entering into this Agreement. In this case, ELMA365 reserves all rights to deny entering into this Agreement or any other agreement with the Client, subject to its sole and exclusive discretion.
13.12 No Waivers. The failure by ELMA365 to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit ELMA365’s right to enforce such provision at a later time. All waivers by ELMA365 must be in writing to be effective.
13.13 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
IN WITNESS WHEREOF, the Parties undersigned have read and understand each and every clause of the Agreement and have freely accepted all obligations and limitations described in the Agreement.
DESCRIPTION OF THE SERVICES
1. The Parties to the Agreement have agreed that ELMA365 shall provide the following Services to the Client:
THE SERVICE FEES
1. The Parties to the Agreement have agreed that the Client shall pay to ELMA365 the following Service Fees for the provided Services.
ELMA365 SOFTWARE LICENSE AGREEMENT
This Elma Software License Agreement (the “License”) is a legally binding agreement between ELMA365 and the Client governing Client’s access to, including download, and use of the Software. All capitalised terms not defined in the License shall have the meaning defined in the Agreement.
1. ACCEPTANCE OF THE LICENSE
1.1. By downloading, installing, accessing or otherwise using the Software, the Client confirms that the Client has read the License, accepts the terms of the License, and agrees to become legally bound by the License.
1.2. By using the Software, the Client acknowledges, agrees, and warrants that the Client:
- i. Shall comply with the terms of the License and all applicable local, state, national and foreign laws, treaties, and regulations;
- ii. Shall provide only true, accurate, complete, and up-to-date information; and
- iii. Has the capacity to conclude legally binding contracts with ELMA365.
2. GRANT OF RIGHTS
2.1. ELMA365 hereby grants the Client a worldwide, transferable, assignable, non-exclusive, royalty free, and revocable license to access, use, study, change, distribute, and create derivative works of the Software in accordance with the terms of this License, including, without limitation, the specifications of the payment module chosen by the Client.
2.2. The Software is licensed and not sold. By accepting the License and paying the Service Fees, the Client obtains the right to use the Software and not the ownership of the Software.
2.3. Subject to the terms of the License, the Client is entitled to access and use the Software for the internal business purposes. The number of the Authorised Users permitted to use the Software shall be agreed upon by the Parties and specified in the Agreement. The Client is entitled to grant rights to the Authorised Users to access and use the Software for its intended purposes.
2.4. ELMA365 reserves any rights not expressly granted to the Client under this License.
2.5. The Client is allowed to make a reasonable number of copies of the Software, as necessary for the purposes set forth herein, provided that only complete copies of the Software are made, including without limitation all ‘read me’ files, copyright notices, and other legal notices and terms included in the Software.
2.6. The Client is permitted to load and run the Software on any device, network or cloud virtual machines under Client’s control (collectively, the “Devices”), if such Devices are compatible with the Software. The Client is solely responsible for assessing the compatibility of the Devices and ensuring that the Devices meet the minimum requirements for the use of the Software as set forth in the documentation provided by ELMA365.
2.7. It is Client’s sole responsibility to verify and assess the suitability, validity and integrity of the Software prior to using it and to decide whether or not the Software fits for the intended use.
2.8. ELMA365 reserves the right to grant the right to use the Software to third parties.
2.9. The Client acknowledges and agrees that any use of the Software that is prohibited by this License may be unlawful and may result in Client’s criminal liability.
3. COVERED SOFTWARE AND SERVICES
3.1. The License applies only to the Software as provided to the Client by ELMA365. The License also applies to updates, supplements, and support services related to the Software, or any other services provided in relation to the Software, unless other terms and conditions have been provided thereto.
3.2. If the Client registers for a free trial of the Software (subject to availability), this License will also govern Client’s use of the free trial of the Software.
3.3. Any software or services that are not provided by ELMA365 are not covered by this License. Such software and services are subject to the terms and conditions set by the respective third party and the Client is solely responsible for obtaining, agreeing to, and complying with the respective terms and conditions at its own cost and expense.
3.4. ELMA365 reserves the right, but is not under any obligation, to provide paid or free-of-charge updates and technical support services with regard to the Software, including fixing bugs and errors, and the possibility to use new versions of the Software.
4. INTELLECTUAL PROPERTY AND OWNERSHIP
4.1. All title and copyright in and to the Software (including, but not limited to, any source code, images, graphics, photographs, animations, video, audio, music, text, and applets, incorporated in the Software) are owned by ELMA365. The Software is protected by Slovakian copyright laws and international treaties.
4.2. ELMA365 has made all efforts possible to avoid the Software being subject to the rights of third parties, in particular that its use does not infringe patents, copyrights or other intellectual property rights of third parties. However, ELMA365 does not guarantee that the Software is not subject to the rights of third parties. The Client agrees to notify ELMA365 immediately and in writing if any third party asserts an infringement claim against the Client in connection with the Software.
5. ACCEPTABLE USE POLICY
5.1. When using the Software, the Client is required to follow the acceptable use policy outlined in this Section 5.
5.2. The Client is not permitted to:
- i. Circumvent the technical limitations of the Software;
- ii. Remove any copyright or other proprietary notices and legends;
- iii. Use the Software for committing cyber offences, including, without limitation, gaining unauthorised access to machines, devices, networks, or data;
- iv. Use the Software in any way which breaches any applicable local, national or international laws;
- v. Use the Software for any purpose that ELMA365 may consider a breach of the License;
- vi. Interfere with or abuse other users of the Software.
6. SUPPORT AND MAINTENANCE
6.1. Any requests for customer or technical support should be addressed to ELMA365 by email indicated in the Agreement. If agreed between the Parties, ELMA365 shall provide maintenance services related to the Services within the term of the Agreement. The maintenance services shall be provided in accordance with the standards of skill and care reasonably expected from a leading service provider in ELMA365’s industry.
6.2. ELMA365 reserves the right to, upon a prior notice to the Client, schedule regular maintenance times related to the Services. During the maintenance, all or a part of the Services may not be available to the Client. ELMA365 reserves the right, in its sole discretion, to suspend provision of all or a part of the Services for unscheduled maintenance, if reasonably necessary. In that event, ELMA365 will put reasonable efforts to notify the Client as soon as possible.
7.1. The availability of the Software may be affected by factors, which ELMA365 cannot reasonably control, such as bandwidth problems, equipment failure, acts and omissions of our third-party service providers, or force majeure events. ELMA365 takes no responsibility for the unavailability of the Software caused by such factors.
8. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES
8.1. To the extent permitted by the applicable law, ELMA365 expressly disclaims all warranties, express or implied, for the Software. Unless agreed otherwise between the Parties in writing, ELMA365 provides the Software on an “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied, including, without limitation, any warranties or conditions of TITLE, NON-INFRINGEMENT, MERCHANTABILITY, or FITNESS FOR A PARTICULAR PURPOSE. The entire risk arising out of use or performance of the Software remains with the Client.
8.2. In no event shall ELMA365 be liable for any damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the Client’s Content, the use of or inability to use the Software, even if ELMA365 has been advised of the possibility of such damages.
8.3. The Client is solely responsible for determining the appropriateness of the Software and assumes any risks associated with Client’s exercise of permissions under the License.
8.4. Third-party content or services are not covered by this License. The Client shall ensure Client’s compliance with any terms set forth by the respective third parties at its own risk, cost and expense.
8.5. To the maximum extent permitted by law, ELMA365 excludes any liability for any loss or damage resulting from the acts and omissions of such third-party service providers.
9. GOVERNING LAW AND DISPUTE RESOLUTION
9.1. This License and any disputes arising out of or in connection with the License and the Software shall be governed by and construed in accordance with the laws of Slovakia. Unless otherwise provided by the applicable law, all disputes arising out of or in connection with the License shall be submitted to the arbitration courts in Bratislava, Slovakia.