LICENSE TERMS
for the use of the OptimiCapture and OptimiPrint computer software provided as SaaS (software as a service)
1. INTRODUCTORY PROVISIONS
1.1. These license terms and conditions (hereinafter referred to as ‘License Terms’) of the company OptimiDoc s.r.o., with registered office at třída Tomáše Bati 385, Louky, 763 02 Zlín, ID No.: 292 94 258, registered in the Commercial Register maintained by the Regional Court in Brno, Section C, Insert 71857 (hereinafter referred to as ‘Provider’), regulate in accordance with the second sentence of Section 2373(1) of Act No. 89/2012 Coll., Civil Code, as amended (hereinafter referred to as the ‘Civil Code’), the mutual rights and obligations of the parties arising under and in connection with license agreement for the computer software ‘OptimiCapture’ and ‘OptimiPrint’ (hereinafter referred to as the ‘License Agreement’ and ‘Software’) concluded between Provider and another legal entity or natural person (hereinafter referred to as the ‘Licensee’) via the web interface located at the Internet address https://optimidoc.cloud (hereinafter referred to as the ‘Web Interface’). License Agreement cannot be concluded with a consumer (non-business natural person).
1.2. Software is mainly used for document digitization and print management, whereby more detailed specifications of Software functionality and the technical specifications of Software are provided on the website https://optimidoc.cloud. Software is provided by Provider in different variants (tariffs), which depend in particular on the chosen Software functionality, the scope of use of Software (including the duration of Software license and the maximum number of users of Software or devices using Software) and the method of payment of Provider's remuneration, and these individual variants (tariffs) are displayed within Web Interface.
1.3. License Terms regulate, in particular, the mutual rights and obligations of Provider and Licensee in granting the license to Software, in providing basic software-related services to Licensee, in ensuring the operation of Software on Provider's server (hosting services) and other mutual rights and obligations of Provider and Licensee.
1.4. Software is provided to Licensee under License Agreement exclusively for use on Provider's server (in the form of software as a service), where Provider also provides installation, hosting and operation of Software under the terms and conditions set out below. Software, including its functionality, may change during the term of License Agreement, even without prior notice. Provider may thus permanently or temporarily discontinue certain features or components of Software or replace them with new features and components, at Provider's discretion.
2. CONCLUSION OF LICENSE AGREEMENT
2.1. License Agreement proposal is sent by Licensee to Provider by clicking on the check-box ‘I accept the terms in the End User License Agreement (‘EULA’)’. The information provided in License Agreement proposal is considered correct by Provider, and Provider is always entitled to verify the identity of Licensee and the information provided by Licensee (by telephone, e-mail, etc.).
2.2. The contractual relationship between Provider and Licensee shall be established by the delivery of Provider's acceptance of the proposal for the conclusion of License Agreement to Licensee. Acceptance may also be done by Provider by granting Licensee access to Software.
2.3. Licensee acknowledges that Provider is not obliged to conclude License Agreement, in particular with persons who have previously materially breached License Agreement (including License Terms).
3.1. Upon conclusion of License Agreement, a user account will be created for Licensee. From his user account Licensee can use the functionality of Software.
3.2. The data provided in the user account shall be updated by Licensee in case of any change. The data provided by Licensee in the user account shall be deemed correct by Provider.
3.3. Access to the user account is secured by a username and password. Licensee is obliged to maintain the confidentiality of the information necessary to access its user account and acknowledges that Provider shall not be liable for any breach of this obligation by Licensee.
3.4. Licensee is not entitled to allow third parties to use the user account.
3.5. Provider may cancel the user account, in particular if Licensee breaches its obligations under License Agreement. Licensee acknowledges that in the event of cancellation of the user account, all information entered by Licensee into Software may be deleted.
3.6. Licensee acknowledges that the user account may not be available continuously, in particular with regard to the necessary maintenance of the hardware and software of Provider or third parties.
4. SUBJECT MATTER OF LICENSE AGREEMENT
4.1. Provider undertakes to grant licensee the right to exercise the right to use Software in the manner and to the extent set forth in Article 5 of License Terms.
4.2. Provider further undertakes to provide Licensee with basic service services related to Software and to ensure the operation of Software on the server (hosting services) to a basic extent, all in accordance with Article 8 et seq. of License Terms.
4.3. Licensee undertakes by License Agreement to pay Provider a fee for the provision of Software license according to Article 4.1 of License Terms, for the provision of basic maintenance services and for the provision of hosting services according to Article 4.2 of License Terms, in the amount specified in the user account according to the respective tariff (variant) of Software.
5.1. Provider grants Software license to Licensee as a non-exclusive license.
5.2. Software license is granted without territorial limitation (Article 5.3), the location of Provider's server on which Software reproduction will be stored being determined by Provider.
5.3. Licensee shall be allowed to use the reproduction of Software made on Provider's server. Licensee shall thus be allowed to use the reproduction of Software, which is necessary to load and store Software in the memory of the server computer, as well as for display, operation and transmission on the Internet. Licensee shall be entitled to exercise the rights under this Article exclusively through Provider on the server designated by Provider.
5.4. The installed Software may only be accessed, and its functions used by Licensee's employees.
5.5. Within the agreed tariff (variant) of Software, the parties may agree on limitations of the scope of use of Software, including limitations of the functionality of Software, specifications of the hardware devices for which Software is intended, or limitations of the maximum number of users of Software.
5.6. Licensee acquires the license at the moment of conclusion of License Agreement. The license to Software is granted for the duration of License Agreement (Article 14.1).
5.7. The scope of use of Software may be limited by the technical means of protection of the rights of Provider.
5.8. Licensee is entitled to use Software only for the purpose resulting from License Agreement and in accordance with the purpose of Software. The use of Software by means of automated processes or robots is not permitted unless Software directly contains such functionality.
5.9. Licensee is not obliged to use the license.
5.10. Licensee may not grant the authorizations forming part of the license, in whole or in part, to a third party without the prior written consent of Provider (grant sub-licenses). Licensee may not assign the rights and obligations under this license to a third party without the prior written consent of Provider.
5.11. In the event of modifications (patches), updates, upgrades or other changes to Software by Provider, the license is granted also in respect of such updated Software.
6. USE OF SOFTWARE BY LICENSEE
6.1. The reproduction of Software shall be provided to Licensee by commissioning on Provider's server.
6.2. Licensee acknowledges that Software is protected by copyright. Licensee undertakes not to carry out any activity that could enable him or third parties to make unauthorized use of Software.
6.3. Unless otherwise stipulated by generally binding legislation, Licensee is not entitled to make changes and/or decompile Software.
6.4. Licensee is not entitled to circumvent, remove or restrict the mechanisms that serve to protect the rights of Provider and any information regarding the copyright of Software.
6.5. Licensee acknowledges that interaction with other computer programs may be necessary for the proper use of Software. Licensee acknowledges that the use of these other computer programs is subject to specific contractual arrangements with the rights holders of these computer programs.
6.6. Licensee acknowledges and agrees that Software is intended for ordinary office work and is not suitable for the digitization of large files (archives) of documents, etc. In the event that Licensee uses Software to a significantly greater extent than other users, Provider may terminate License Agreement without notice.
7. PROVIDER'S REMUNERATION AND PAYMENT TERMS
7.1. The amount of Provider's remuneration for the use of Software by Licensee and its due date are agreed in License Agreement, depending on the agreed tariff (variant) of Software. The amount of the license fee depends in particular on the selected functionality of Software, the extent of use of Software (including the duration of Software license and the number of users of Software) or the number of operations performed within Software. If so agreed, payment of Provider's remuneration may be made by the provision of monetary or other consideration by Licensee to the distributor.
7.2. Licensee may also pay Provider's remuneration by providing monetary or other consideration to a third party who is in a contractual relationship with Provider (hereinafter referred to as the ‘Distributor’) and who provides Licensee with a unique code for access to Software.
7.3. Information on payment by bank transfer, including Provider's account number and variable payment symbol, shall be provided to Licensee in the payment instructions displayed within Licensee's user account or sent by Provider to Licensee's address. Licensee shall pay the payment in accordance with these instructions and together with the variable payment symbol.
7.4. If value added tax or other similar tax (‘VAT’) is to be added to Provider's remuneration for the provision of Service in accordance with generally binding legislation, Provider's remuneration shall be increased by VAT.
7.5. Provider's right to license Software or related services to third parties on other terms and conditions is not affected.
8. MAINTENANCE AND HOSTING SERVICES
8.1. During the term of License Agreement, Provider shall provide the following services to Licensee:
8.1.1. patches, updates or upgrades to Software, to the extent and at the time determined by Provider in its sole discretion; Provider shall not be obligated to make such changes to Software;
8.1.2. basic technical support via email and via the contact form on Provider's website, to the extent determined at Provider's discretion.
8.2. Under License Agreement, Provider shall also provide Licensee with the basic hosting services necessary for the operation of Software on the Internet computer network. Hosting services means providing end-user access to Provider's server on which Software will be hosted over the Internet under http or https protocol and providing the hardware and relevant computer programs necessary for the operation of Software.
8.3. The maintenance services pursuant to Article 8.1 of License Terms and the hosting services pursuant to Article 8.2 of License Terms are hereinafter collectively referred to as the ‘Operating Services’. Operating Services and the use of Software by Licensee are hereinafter collectively referred to as the ‘Service’.
9. PROVISION OF OPERATING SERVICES
9.1. Operating Services may not be provided by Provider if their provision is prevented by difficulties on the part of Licensee or other persons. In particular, Provider may not provide Operating Services in the event of power outages, data network failures, other failures caused by third parties or force majeure.
9.2. Provider may take measures to avoid interruptions, limitations, disconnections or reductions in the quality of Operating Services. In connection with this authorization, Provider may carry out planned and unplanned downtime in the provision of Operating Services for the purpose of inspection, maintenance or replacement of hardware, or adjustment or modification of software or other computer programs.
9.3. There may be interruptions, temporary limitations, interruptions, or reductions in the quality of the provision of Operating Services.
9.4. In the event that a failure in the provision of Operating Services is due to reasons on the part of Licensee, Licensee undertakes to reimburse Provider for the cost of rectifying the failure. In other cases, the costs of rectifying the malfunction shall be borne by Provider.
9.5. Provider shall also provide Operating Services through third parties to which Licensee agrees.
10. USE OF SERVICE BY LICENSEE
10.1. Unless otherwise stated, Licensee is not entitled to allow third parties to use Service without the prior written consent of Provider. In the event that Licensee breaches this obligation and a third party causes damage to Provider, Licensee undertakes to compensate Provider for such damage.
10.2. Licensee shall not use the user account and Service in a manner that would unreasonably restrict the use of Service by other customers of Provider or otherwise unreasonably restrict Provider. In particular, Licensee shall not burden Provider's server on which Software is hosted with automated requests outside the interface intended for this purpose.
10.3. Licensee shall not store information within Service and/or allow the transmission of information whose content is contrary to generally binding legislation.
11. OTHER RIGHTS AND OBLIGATIONS OF THE PARTIES
11.1. In the event that Licensee is a natural person, Provider shall fulfil its information obligation within the meaning of Article 13 of Regulation 2016/679 of the European Parliament and of the Council 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 (General Data Protection Regulation) (hereinafter referred to as the ‘GDPR’) by means of a separate document designated as information on the processing of personal data.
11.2. Provider is entitled to use the trade name or name of Licensee for marketing purposes as a so-called reference in all types of promotional materials (regardless of the form of such promotional materials or the form in which they are communicated).
11.3. Provider shall not access information entered into Software by Licensee unless it is necessary for the operation of Software or Operating Services. Provider undertakes to maintain confidentiality with respect to the information referred to in the preceding sentence.
12. LIABILITY FOR DEFECTS, LIABILITY FOR DAMAGES
12.1. Licensee acknowledges that Software and Operating Services are not suitable for use in operations where major or serious damage may occur and that Provider shall not be liable for the results of the activities for which Software and Operating Services are used. Licensee acknowledges that errors may occur in the course of using Software and Operating Services.
12.2. Licensee further acknowledges that the absence of a functional feature of Software that is not expressly stated in Software specification shall not be considered a defect.
12.3. Licensee shall check the functionality of Software without undue delay after Software has been made available.
12.4. Licensee acknowledges that Provider shall not be liable for any defects in Software resulting from unauthorized interference with Software or use of Software in contravention of Software specification by Licensee or third parties.
12.5. Licensee further acknowledges that, unless otherwise agreed, Provider shall not be liable for the functionality of Licensee's data network, the functionality of the public data network, the functionality of Licensee's hardware, Licensee's data backup, the status of Licensee's other software and for any third-party interference with Licensee's other software.
12.6. The rights and obligations of the parties regarding the liability of Provider for defects in Software and Operating Services shall be governed by the applicable generally binding legislation. Licensee shall assert its rights arising from Provider's liability for defects in Service in writing to Provider by electronic mail.
12.7. In the event of any damage on the part of Licensee in connection with Provider's liability for defects in Software or operating services, unless the damage is caused by Provider intentionally or through gross negligence, the Parties agree, with regard to the terms of the license, to limit the compensation for any such damage incurred by Licensee so that the total compensation for damage, including lost profits, may amount to a maximum amount equal to the amount of the monthly fee actually paid by Licensee to Provider for the month in which the damage occurred. The parties acknowledge that, taking into account all the circumstances surrounding the conclusion of License Agreement, the aggregate foreseeable damages, including lost profits, which Licensee may incur as a result of defects in Software and Operating Services may be up to an amount equal to the monthly fee actually paid by Licensee to Provider for the month in which the damages occurred.
13. SENDING COMMERCIAL COMMUNICATIONS STORING COOKIES
13.1. Licensee agrees to the sending of information related to the goods, services or business of Provider to Licensee's electronic address and further agrees to the sending of commercial communications by Provider to Licensee's electronic address within the meaning of Section 7(2) of Act No. 480/2004 Coll., on Certain Information Society Services and on Amendments to Certain Acts (Act on Certain Information Society Services), as amended. Provider shall fulfil its information obligation towards Licensee within the meaning of Article 13 of the GDPR relating to the processing of Licensee's personal data for the purpose of sending commercial communications by means of a separate document.
13.2. Provider shall fulfil its legal obligations relating to the possible storage of cookies on Licensee's device by means of a separate document.
14. PROCESSING OF PERSONAL DATA OF THIRD PARTIES
14.1. In connection with the operation of Service, Provider (at Licensee's request) may process personal data of natural persons stored by Licensee within Service. For such a case, the personal data processing agreement, which forms Annex 1 to License Terms, forms part of the contractual arrangements of the parties.
15. DURATION OF LICENSE AGREEMENT
15.1. License Agreement shall become effective upon its conclusion.
15.2. The duration of License Agreement is agreed in License Agreement, depending on the agreed tariff (variant) of Software.
15.3. Provider is entitled to terminate License Agreement, in particular if it decides to discontinue the provision of Service. Termination of License Agreement shall be carried out by Provider by sending a notice to the electronic address of Licensee specified in the user account of Licensee. The notice period is fourteen (14) days.
15.4. Licensee acknowledges that in the event of termination of License Agreement, Licensee will not be allowed to continue to use Software, and all information entered by Licensee into Software may be removed.
15.5. Provider may terminate License Agreement if Licensee breaches any obligation under License Agreement (including License Terms) or otherwise infringes the copyright in Software.
16. FINAL PROVISIONS
16.1. If the legal relationship established by License Agreement contains an international (foreign) element, the parties agree that the relationship shall be governed by Czech law, in particular the Civil Code, provided that for the purposes of the relationship between Provider and Licensee:
16.1.1. the application of the customary commercial practices within the meaning of Section 558(2) of Civil Code is excluded if Licensee is an entrepreneur;
16.1.2. the provisions of Sections 557, 1763, 2389c, 2389d and 2389e(1) of Civil Code are excluded; and
16.1.3. excludes the application of the provisions of Sections 1799 and 1800 of the Civil Code if Licensee is an entrepreneur.
16.2. The Parties have agreed that disputes arising from the legal relations established by License Agreement shall be adjudicated by Czech general courts.
16.3. Provisions deviating from License Terms may be agreed in a separate license agreement in writing. Deviating provisions in the special license agreement shall prevail over the provisions of License Terms.
16.4. The provisions of License Terms form an integral part of License Agreement.
16.5. Upon acceptance of a new version of License Terms by Licensee, the previous License Terms shall cease to be effective, and the new version of License Terms shall become an integral part of License Agreement.
16.6. The parties agree that Provider may unilaterally amend License Terms to a reasonable extent. The amendment of License Terms shall be notified to Licensee by e-mail to the address indicated in the user account. Licensee may refuse to change License Terms and, in such case, terminate License Agreement by giving one (1) month's notice.
16.7. If any provision of License Terms is or becomes invalid or ineffective, the invalid provision shall be replaced by a provision whose meaning is as close as possible to the invalid provision. The invalidity or ineffectiveness of one provision shall not affect the validity of the other provisions.
OptimiDoc s.r.o.
Annex No. 1 - Personal Data Processing Agreement
|
Position of Licensee in the processing of personal data |
Licensee has appointed a data protection officer |
Duration of the processing of personal data by Provider |
Nature of the processing of personal data
|
|
Controller/processor/other processor |
No |
Modified in Article 3 of this agreement. |
By means of automated procedures consisting of the collection, recording, organization, structuring, adaptation, alteration, retrieval, consultation, use, disclosure, alignment, combination, restriction, erasure or destruction of personal data |