Conditions Générales d'Utilisation

THE COMPANY AND THE CUSTOMER (INDIVIDUALLY REFERRED TO AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES”) AGREE AS FOLLOWS:

1. DEFINITIONS:
   1. “Agreement” means this agreement, having as object the online Services offered by the Company and received by the Customer, through which the Customers gain access to the Company’s Platform to create fully customizable interactive online catalogues, brochures and flipbooks. In the absence of another written Agreement, any payment made by the Customer or acceptance of these Terms, together with the confirmation e-mail / order form / offer acceptance represents the Services Agreement between you, the Customer, and the Company, in accordance with article 9 of the Romanian Law of Electronic Commerce no. 365/2002.
   2. “Cloud Server(s)” means one or multiple computer or software servers or services, including physical, virtual, clustered, dedicated, shared, in software or other format, or any other form of server or server infrastructure including, but not limited to, web, API, cloud, application, database, routing, gateway, service, orchestration, video, streaming, analytics, business intelligence, machine learning, versioning, testing, SaaS, PaaS, BaaS, continuous integration, or any other related server or server technology comprising the cloud infrastructure utilized for the purpose of running the Platform.
   3. “Confidential Information” means confidential or proprietary information of a party which is disclosed in oral, written or any other form to the other party. This includes trade secrets, business and financial data, customer information and lists, the Software and any associated documentation, Databases, and any passwords/other identification words/codes used to access/use the Software. Confidential Information may also include, but is not limited to, technical know-how, technical specifications, software code, manners of conducting business and operations, strategic business plans, systems, results of testing, consumer information, personal information, account information, product information, concepts, and compilations of data.
   4. ”Customer” means any legal person that places an order on the website digital-catalogue.com and registers an account. The Services are not addressed to natural persons. “Authorized Users” means Customer’s employees, contractors, personnel, who are allowed access to the Platform pursuant to this Agreement. These Users, whether located in or outside of Romania and their usage of the Platform are Customer’s sole responsibility, and Customer must comply with all applicable laws and security protocols pertaining to their access, including applicable export laws, restrictions, and regulations. “Users”/”Guests” means the natural person, representative of the legal person visiting the website, without the registration of an account or placement of an order.
   5. “Documentation” means the online technical support website and forms made available to the Customer by the Company on the platform itself, which sets out a description of the Services, the user instructions for the Services and may be updated by the Company, subject to clause 3.2. below.
   6. “Intellectual Property Rights of the Platform” means designs, design rights, service marks, patents, unpatented inventions, trademarks and trade names (whether registered or unregistered), copyright and related rights, software, tools, mobile applications and creations within, knowhow, trade secrets and confidential information, website, marketing materials, derivatives thereof, and forms of protection of a similar nature, all other intellectual property rights and similar or equivalent rights anywhere in the world which currently exists or come in existence in future; and applications, pending applications, extensions and renewals in relation to any such rights; and all other proprietary or intellectual property rights pertaining thereto throughout the world and owned by the Company.
   7. “Managed” means that the Platform shall be hosted, maintained, and managed by Company without the need to release any source code or object code to the Customer.
   8. “Marks” means trademarks, names, logos, trade names, brands or other symbols of the Company.
   9. “Licence Fee” means the subscription fee to use the Platform and any additional components. The Company offers various discounts for payments made in advance of the Licence Fees, according to the chosen Subscription Plan, as published on the subscriptions webpage.
   10. “Representatives” means and includes the Parties, their respective directors, partners, officers, employees, agents, supplier or people connected with them in their trade.
   11. “Policies” mean Company’s standard Customer documentations for the Platform, as modified from time to time by the Company in its sole discretion, and any material change will be notified to the Customer.
   12. “Services” mean any of the subscription based online services offered by the Company through the website owned or controlled by the Company, digital-catalogue.com, through which the Customers gain access to the Platform to create fully customizable interactive online catalogues, brochures, flipbooks and other digital publications.
   13. “System or Platform or Software” means software, tools and cloud servers of the Company
   14. “Term” means the Initial Term and each Renewal Term.
   15. "User Contributed Content" shall mean each and every item of content or other material (whether images, links, documents, text, writings, photographs, graphics, videos, greeting cards, "Skins", "Sketches" or files) uploaded by a Customer through the Service or otherwise integrated into the Service by a Customer.
   16. “Application” or “Platform” means proprietary electronic platform developed by the Company to provide Services for the subscribers and shall be available as web application (online website).
2. INTERPRETATION:

   In this Agreement, unless the context otherwise requires:

   1. The headings or sub-headings in this Agreement are for convenience of reference only and shall not be used in, and shall not affect, the construction or interpretation of this Agreement;
   2. terms and words beginning with capital letters and defined in this Agreement shall have the meaning ascribed thereto herein;
   3. words importing singular shall include plural and vice versa;
   4. the rule of construction, if any, that a contract should be interpreted against the parties responsible for the drafting and preparation thereof, shall not apply;
   5. any word or expression used in this Agreement shall, unless otherwise defined or construed in this Agreement, bear its ordinary English meaning;
   6. whenever the term “including” is used, it means “including, but not limited to”;
   7. Approvals or consents may be withheld or given by a Party acting in its discretion, unless this Agreement provides that an approval or consent will not be “unreasonably withheld” in which case the Parties’ approval or consent must also not be unreasonably delayed or conditioned.
3. PLATFORM PROVIDED “AS IS”
   1. The Company warrants that it has the right to provide the Platform to the Customer hereunder. Otherwise, the Company provides the Platform to Customer “as is.” The Customer has tested the Platform in the test environment to ensure its acceptability for Customer’s purpose prior to putting the Platform in use.
   2. The Company is under no obligation to update the Platform. If the Company does provide the Customer with updates, the terms and conditions of this Agreement shall apply. However, the Company will at least make updates in case of expiring libraries and/or conflicting software sources.

   THE PLATFORM IS PROVIDED “AS IS” AND THE COMPANY MAKES NO OTHER WARRANTIES WITH RESPECT TO THE PLATFORM, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

4. GRANT OF LICENSE
   1. Conditioned on the provisions in this Clause and the other terms and conditions of this Agreement and payment of the applicable Fees, the Company hereby grants to the Customer, and the Customer hereby accepts, for the Term (unless terminated as provided in this Agreement), a non-exclusive, non-transferable, non-sub-licensable, time-limited, fee-based licence with the right to use the Platform, as prescribed under this Agreement, at its own expense and using its own efforts with its own Authorised Users.
   2. Without limiting the generality of the foregoing, under no circumstances shall the Customer have the right to sub-license or provide access to the Services or any services contained therein to any third parties (except access permitted by Customer to its Authorised Users).
   3. All Materials created by the Customer on the Platform pursuant to this Agreement shall be branded according to the specifications of the type of subscription paid by the Customer. The free version of the Application implies that Materials produced on the Platform carry the Marks of the Company. For paid subscriptions, the Customer may add its own Marks (name, trademark, trade name, logo), depending on the type of subscription. For premium subscriptions or resellers, it is possible to brand the Materials entirely under the name of the Customer. For avoidance of doubt, please check the applicable features of the chosen Subscription Plan. No licence, express or implied, is granted to the Customer for any of the Company’s Marks under this Agreement.
5. SERVICE DESCRIPTION
   1. Responsibilities of the Company
      1. The Company shall provide the Customer with the Platform for the purpose of developing online interactive catalogues, flipbooks, online brochures and other similar digital products.
      2. The Service Level Agreement is made available on the website as a separate Policy Document applicable to our services.
   2. Disclaimer of Warranties
      1. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND FOR THE EXPRESS LIMITED WARRANTIES HEREIN, ALL PLATFORM, DOCUMENTATION, MAINTENANCE RELEASE, PRODUCTS, INFORMATION, MATERIAL, AND SERVICES PROVIDED BY THE COMPANY ARE PROVIDED “AS IS, WHERE IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, STATUTORY, OR ARISING FROM ANY COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE COMPANY SPECIFICALLY AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS TO THIRD PARTIES, PATENT VALIDITY, OPERATION WITHOUT INTERRUPTION, ACHIEVEMENT OF THE CUSTOMER’S REQUIREMENTS OR INTENDED RESULTS, OR COMPATIBILITY WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES, OR MATERIALS EXCEPT AS EXPRESSLY SET FORTH IN THE DOCUMENTATION. FURTHERMORE, AND WITHOUT LIMITING THE FOREGOING, THE COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE PLATFORM OR DOCUMENTATION IS OR WILL BE SECURE, ACCURATE, COMPLETE, OR FREE OF HARMFUL CODE OR ERROR.
      2. Refund Policy The Company has a free version of the application, which can be used to test the functionality and assess the value of our product before the acquisition of a licence . This is why the Company does not generally offer refunds, except for rare occasions and at the company's sole and absolute discretion. Once a refund is issued, you can’t access any premium options. To request a refund, contact our customer support team. We will consider and review your refund request within seven days of the submission date.
      3. Limitation of rights This Agreement is primarily intended for our legal person Customers, existent or potential Clients. However, if applicable, nothing in these Terms affects any legal rights that you are entitled to as a consumer under the EU law, which cannot be contractually altered or waived. If you reside in a European Union country, nothing in these Terms affects your right to rely on any applicable mandatory local law or choice of jurisdiction provision that cannot be varied by contract. The European Commission provides an online dispute resolution platform, which you can access here.
   3. Responsibilities of the Customer
      1. The Customer shall maintain marketing and customer service standards that are appropriate to maintain high-quality Services and to reflect favourably on the Customer’s and the Company’s reputation.
      2. The Customer shall be responsible for all activities of its Authorised Users and the Customer shall; (i) use commercially reasonable efforts to prevent unauthorised access to or use of the Services and shall notify the Company promptly of any such unauthorised access or use; and (ii) comply with all applicable local, state, provincial, federal and foreign laws in respect to the promotion and re-sale of the Services.
      3. The Customer shall provide the Company with all necessary cooperation in relation to this Agreement.
      4. The Customer shall provide the Company with all necessary information as may be required by the Company.
      5. The Customer shall carry out all other Customer responsibilities set out in this Agreement in timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the Parties, the Company may adjust any agreed timetable or delivery schedule as reasonably necessary.
      6. The Customer shall ensure that the Authorised Users obtain and shall maintain all necessary licences, consents, and permissions necessary.
      7. The Customer shall ensure that the Authorised Users take reasonable steps to prevent unauthorised access to the Platform, including, without limitation, by protecting its passwords and other log-in information. The Customer shall notify the Company immediately of any known or suspected unauthorised use of the Platform or breach of its security and shall use best efforts to stop said breach.
      8. The Platform is provided by the Company to the Customer on an “as is” and “as available” basis and the Company does not warrant that the use of the Platform will be uninterrupted or error-free.
      9. The Company, at its sole discretion, reserves the right to modify, delete, add new functionality, apply fixes, updates, and upgrades to the Platform and its components and the Customer shall be notified for any material change.
      10. The Customer shall not withhold information as to the ownership of the copyrights and other intellectual property rights of the Platform, not alter, obscure, remove, interfere with, or add to any of the trademarks, trade names, markings or notices affixed to or contained in the Platform delivered to the Customer, subject to the features included in each Subscription Plan.
      11. The Customer shall not attempt to circumvent or interfere with any security features of the Platform.
      12. The Customer shall not participate in any illegal, deceptive, misleading or unethical practices including, but not limited to, disparagement of the Platform or other practices which may be detrimental to the Platform, to the Company or to the public interest. In the event the Customer is reported and/or found liable by a national and/or international authority to have committed, or is suspected to have committed, a criminal activity or an act of a fraudulent and related activity, the Customer shall inform the Company accordingly with immediate effect and the Company shall terminate the Agreement and withdraw the licence. In the event the Customer fails to inform the Company about the foregoing, and the Company becomes aware or obtains information from other sources, the Company shall have the right to terminate the Agreement and withdraw the licence, upon a written notification to the Customer.
      13. The Customer shall not allow to any of its Authorised Users, or to any other party, to decompile, disassemble or reverse-engineer any program parts of the Platform, or otherwise modify any software provided by the Company, or compromise the data transmission protocols of the Company’s software security system, or use services based on unlicensed or hacked network protocols. Violation of this clause shall constitute a material breach of this Agreement and shall entitle the Company to terminate it.
      14. The Customer agrees and warrants not to publish in its website and/or in any website under its control, any materials and/or files derived from any unauthorised access to the Platform, its components and/or its derivatives. In the event that such materials are found to be published in the Customer’s websites, forums or other media controlled by the Customer, they must be immediately removed. The Customer also agrees and warrants not to distribute any such materials by electronic and/or non-electronic form. Violation of the above terms shall constitute a material breach of this Agreement.
      15. Upon termination of this Agreement for any reason, the Company will remove and delete all data and information collected regarding the Customer or the Customer’s clients, according to our Privacy Policy.
      16. The Customer shall pay to the Company a License Fee for the Platform in accordance with the provisions of Clause 6 of this Agreement. The Licence Fee for the Platform may be increased from time to time, at the Company’s own discretion. In such case, a notice in writing shall be provided to the Customer at least 30 (thirty) days in advance. The new prices shall apply after the end of the current subscription period.
      17. The Customer may upgrade or downgrade to other Subscription Plans, subject to fees published. The purchased Platform upgrades are non-returnable, non-transferable and non-refundable, in principle. Please contact us directly of you need additional advice for a downgrade.
   4. Restrictions
      1. Except as expressly permitted in this Agreement the Customer will not, and will not permit any third party to:
         1. reproduce any portion of the Platform for any purpose except as otherwise authorised in this Agreement;
         2. decode, disassemble, reverse engineer, or otherwise attempt to derive or gain access to any portion the Platform’s source code;
         3. adopt, build upon, correct, modify, translate, or otherwise improve or create derivative works of the Platform;
         4. breach or circumvent any disclosed or undisclosed security device or intended protection used for, or contained in the Platform or Documentation;
         5. efface, alter, obscure, translate, combine, or otherwise change any trademarks, disclaimers, warranties, Documentation terms, Intellectual Property Rights, proprietary rights, or any symbols, notices, marks, serial numbers, or identification on or relating to any copy of the Platform or Documentation, subject to the features included in each Subscription Plan;
         6. use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or any applicable Law;
         7. use the Platform for the purposes of (i) comparative or competitive analysis of the Platform; (ii) developing, using, or providing Competitive Products or service; or (iii) any other purpose that is to the Company’s detriment or commercial disadvantage; or
         8. use the Platform or Documentation for any purpose not expressly permitted under Permitted Use or in any manner not expressly permitted by this Agreement.
      2. The Customer is responsible for all of Customer’s activity in connection with the Platform, including but not limited to uploading Customer’s data onto the Platform. The Customer shall use the Platform in compliance with all applicable laws and regulations. The Customer shall take due and proper care to ensure that (and shall not permit any third party to), directly or indirectly, (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any material on or through the Platform, that:
         1. infringes any patent, trademark, trade secret, copyright, right of publicity, data protection right or other right of any other person or entity;
         2. is unlawful, harassing, defamatory, libellous, deceptive, fraudulent, invasive of another’s privacy, tortious, or profane;
         3. constitutes unauthorised or unsolicited advertising, junk or bulk e-mail (“spamming”);
         4. contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorised access to any system, data, password or other information of the Company or any third party; or
         5. impersonates any person or entity, including any employee or representative of the Company.
      3. Additionally, the Customer shall not: (i) interfere or attempt to interfere with the proper working of the Platform or any activities conducted on the Platform; or (ii) bypass any measures the Company may use to prevent or restrict access to the Platform (or other accounts, computer systems or networks connected to the Platform).
   5. Publications of Digital Catalogues Created with the Free Subscription Plan
      1. By using our Free Subscription Plan you grant the Company the right to publish your digital catalogue in our portal. The publication is subject to Company’s decision and to these Terms and Conditions, especially the copyright provisions from clause 10.2.
      2. The publication by default of the digital catalogue is done on the condition that you use a Free Subscription Plan. If your user account disappears or is upgraded, the condition is no longer met and the material is no longer displayed.
      3. By using our Free Subscription Plan, you hereby accept that your digital catalogue will be made public worldwide and distributed to the Company’s users and an unknown internet audience. You should not use the Company’s Free Subscription Plan if you do not want to have your digital catalogues created hereby distributed worldwide.
      4. You are solely responsible for each and all of your uploaded digital catalogues and the consequences of uploading them, including the legality of any contained personal data and advertisement. You hereby recognize and affirm that the Company is merely providing you the means to collaborate on and make available your digital catalogues.
      5. By uploading your User Content, you affirm, represent, and warrant that:
         1. You are the creator and owner of or have the necessary licenses, rights, consents, and permissions to use and to authorize the Company and its’ Users to use and distribute your digital catalogues and exercise the licenses granted by you in these Terms;
         2. Your digital catalogues do not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right, or (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; and (ii) contain any viruses, adware, spyware, worms, or other malicious code. Violators of these third-party rights may be subject to criminal and civil liability.
6. FEE PAYMENT
   1. In consideration of the rights granted to the Customer under this Agreement, the Customer agrees to pay to the Company licence fee, according to the Subscription Plan, as described on our pricing page here (the “Licence Fee”).
   2. Digital-Catalogue.com and the services provided by the Company are subscription-based services. All amounts are payable in EURO currency unless specified otherwise. When you sign up, you choose your Subscription Plan (Free, Start, Design, Sell, or Enterprise), the Subscription Term, the billing frequency, and the payment method.
   3. The Customer shall pay all Fees specified in this Agreement for the Subscription(s) in advance of the billing cycle. The Customer immediately pays the first Fee when signing up on the Platform and choosing a paid Subscription Plan. Unless you cancel the subscription, we will rebill you automatically on the next billing date and charge the credit card or other payment method you have provided to us. After you cancel your subscription, your account will stay fully active until your paid period ends. When that happens, your account expires. You will no longer be able to manage your digital catalogues on the Platform or have access to the Services. If applicable, payments under this Agreement shall be made within fifteen (15) days after the receipt of the invoice. If the Customer has been delinquent in its payments, the Company may condition future subscriptions renewals on prepayment or payment terms shorter than those specified in this Clause. In the event of a payment delay, without limiting the Company’s remedies arising out of this Agreement, the Customer shall pay an additional fee for late payment ("Late Payment Charge") at the rate of 0.5% of the outstanding balance for each day. Such Late Payment Charge shall accrue on a daily basis from the due date until actual payment of the overdue amount. The Customer shall pay the Late Payment Charge together with the overdue amount. The total Late Payment Charge amount shall not exceed the initial balance amount of the overdue payment. In no event this Late Payment Charge provision shall be construed as a grant of permission for payment delays.
   4. If any amount owed by the Customer under this or any other agreement for the Services is thirty (30) or more days overdue, the Company may, without limiting the Company’s other rights and remedies, accelerate the Customer’s unpaid Fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend provision of the Services to the Customer and the Clients until such amounts are paid in full. The Company will give the Customer at least seven (7) days prior notice that its account is overdue, before suspending the Services.
   5. Unless otherwise stated, the Fees stated on our website do not include any taxes which may apply to the sale of digital goods in the Customer’s country, including but not limited to value-added tax (“Taxes”). The Customer is responsible for paying all Taxes associated with its purchases, pursuant to this Agreement. If the Company has the legal obligation to pay or collect Taxes for which the Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by the Customer, unless the Customer provides the Company with a valid tax exemption certificate authorized by the appropriate tax authority. For clarity, the Company is solely responsible for Taxes assessable against the Company, based on its income, property and employees.
   6. Payments must be settled through the Customer’s corporate bank accounts or an authorised third-party. In case the Customer settles the payments through an authorised third-party, the relevant documents must be provided to the Company. The Company’s statement accounting and bank details shall not be disclosed to any third Party or persons other than the Customer’s employees.
   7. The full fee payment shall be remitted to the Company’s designated bank accounts, without set-off or any deductions. All outgoing, intermediary and incoming bank charges and other charges resulting from transfers of payments to the Company shall be borne by the Customer. Any payments made in accordance with this Agreement are not refundable.
   8. All payments shall be settled in full within the time specified under Clause 6. In case of any payment delays the Company does not warrant uninterrupted operation of the Platform. If the Customer is in breach of payment terms and/or fails to pay the due fees in full for 1 (one) month from the due date, it shall constitute a material breach of this Agreement and shall entitle the Company to discontinue the licence and subsequently terminate the Agreement.
   9. The Customer understands and acknowledges that the licence for the Platform and Additional Components is provided upon the prepayment of the Licence Fees. In case of the violation of any payment terms, the licence to use the Platform expires, all Platform components cease to operate and the Agreement is terminated. The Customer shall not have any claims against the Company by reason of such termination of the Agreement.
   10. For the avoidance of doubt, it is clarified that any work for customization of the Platform as per the requirement and/or wish of the Customer shall be a subject matter of a separate contract and will not be covered under the Agreement.
7. OWNERSHIP
   1. The Customer acknowledges and agrees that
      1. The Company is and will remain the sole and exclusive owner of all rights, title, and interest in and to the Platform, Documentation, maintenance release, New Version, and all Intellectual Property Rights associated herein, subject only to the rights of any disclosed third parties, and the limited licence granted to Customer under this Agreement;
      2. The Platform and Documentation are licensed, not sold, to the Customer. The Customer does not, has not, and will not acquire any ownership interest in the Platform, Documentation, or any related Intellectual Property Rights through this Agreement;
      3. Nothing in this Agreement grants any implied rights to the Customer, including by implication, waiver, or estoppel, in any Intellectual Property Rights or other rights, title, or interest in any portion of the Platform and Documentation; and
      4. The Customer unconditionally and irrevocably assigns to the Company its entire right, title, and interest in any Intellectual Property Rights that the Customer may have currently or in the future relating to the Platform or Documentation, including any derivative works or patent improvement rights, however held or acquired.
8. CONFIDENTIALITY AND NON-DISCLOSURE
   1. Non-Disclosure
      1. Each party may be given access to Confidential information from the other Party in order to perform its obligations under this Agreement.
      2. A Party’s Confidential information shall not be deemed to include information that: (i) is or becomes publicly known other than through any act or omission of the receiving Party; (ii) was in the other Party’s lawful possession before the disclosure; (iii) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; (iv) is independently developed by the receiving Party, which independent development can be shown by written evidence; or (v) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
      3. Each Party shall hold the other’s Confidential information in confidence, and, unless required by law of each party, not make the other’s Confidential information available to any third party or use the other’s Confidential information for any purposes other than the implementation of this Agreement.
      4. Each Party shall take all reasonable steps to ensure that the other’s Confidential information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
      5. Neither Party shall be responsible for any loss, destruction, alteration, or disclosure of Confidential information caused by any third party.
      6. The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Company’s Confidential information.
      7. The Customer agrees that, within the effective term of this Agreement, as well as after its expiration, it shall treat as confidential and not use, or disclose to any third party without the prior written consent of the Company, any confidential information, including, without limitation, «Materials» related to the Platform, any operational or technical data, know-how or other information, business and strategic plans, discoveries, production methods, designs, financial and accounting information, sales and marketing data, except when legally compelled to do so, and except where such information:
         • exists in the public domain, or
         • is already available to such Party at the moment of its disclosure, or
         • subsequently passes into the public domain other than through the violation of this Agreement, or
         • is expressly allowed to be made available by such Party to any third party; or
         • is made available by such Party to a third party in a legal manner.
      8. The «Materials» related to the Platform include but are not limited to:
         • Platform software, as well as any updates and upgrades thereto, new versions thereof and associated subsystems, parts, services and components, including secure data transmission protocols;
         • The Company’s technical solutions, any upgrades of such materials and any parts of such materials in any form;
         • any other information or data, whether in written, graphical or machine-readable form, relating to the Company’s technical designs
         • The Company’s technical documentation, including but not limited to the articles, news and materials published at Support Website, digital-catalogue.com and any other website owned by the Company or its partners.
      9. The Customer understands and acknowledges that the «Materials» provided via the Company are confidential information and constitute assets which are material for the Company. The Company shall not use any «Materials» for any purposes other than as permitted under this Agreement. The Costumer undertakes not to disclose or provide any «Materials» or any part thereof, in any form, to any persons other than its employees. The Customer undertakes to take appropriate steps to perform its obligations under this Agreement with respect to copying, modification, protection and integrity of such «Materials». In the event that the Costumer becomes compelled by law to disclose any confidential information, the Costumer shall provide the Company with prior written notice, so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of Clause 8 of this Agreement. In the event that a protective order or other remedy is not obtained, or the Company waives compliance to the provisions of Clause 8 of this Agreement, the Costumer shall: (1) disclose only the portion of confidential information that is legally required to be disclosed and (2) exercise all reasonable effort to obtain reliable assurance that confidential treatment will be afforded to confidential information. Any disclosure in violation of this Clause shall be deemed a material breach of this Agreement and shall entitle the Company to terminate it.
      10. Termination of this Agreement for any reason by either Party shall not relieve the Parties of any obligation with respect to information and documentation disclosed under this Agreement.
      11. All provisions of this confidentiality (clause 8) shall survive the termination of this Agreement and shall remain in force indefinitely.
9. TERM AND TERMINATION
   1. The initial Term of this Agreement shall commence upon payment of the Licence Fee (”the Effective Date”) and continue thereafter for a period of 1 month / 3 months / 6 months/ 12 months, according to the subscription type (the “Initial Term”).
   2. Thereafter, this Agreement shall automatically renew for additional periods similar to the initial term (of 1 month / /3 months / 6 months/12 months) (the “Renewal Term(s)”) unless either Party provides written notice of termination to the other Party at least thirty (30) days prior the end of the Initial Term or respective Renewal Term, as applicable. The Agreement can also be renewed in particular cases as expressly agreed by the Customer and the project manager, upon the Customer’s request.
   3. The Company reserves the right to modify this Agreement and any of its other policies at any time at its sole discretion with prior notice to the Customer. If you choose not to accept the updated terms, please be sure to cancel your subscriptions prior to your next renewal, deactivate any auto‑renewal settings, and refrain from ordering new products.
   4. This Agreement may be terminated as follows: (i) if the Customer fails to make payment due hereunder within thirty (30) days after receiving written notice from the Company that such payment is delinquent, the Company may terminate this Agreement on written notice to the Customer at any time following the end of such period; (ii) if either Party breaches any material term or condition of this Agreement and fails to cure such breach within (30) days after receiving written notice of the breach, the non-breaching Party may terminate this Agreement on written notice at any time following the end of such thirty (30) day period; (iii) if either party becomes insolvent (i.e., becomes unable to pay its debts in the ordinary course of business as they come due), then the other Party may terminate this agreement immediately upon notice; or (iv) without cause, with a thirty (30) day written notice.
   5. Either Party shall have the right to terminate this Agreement if the Parties are required to amend any material term of this Agreement as a result of a change in applicable laws and the Parties are unable to agree such amendments within 14 (fourteen) Days from the commencement of such discussions
   6. When this Agreement is terminated:
      1. the license to use the Platform and all Platform components is withdrawn and ceases immediately;
      2. the Customer must not provide any services of any type or description on its website under or by reference to the Platform name, brand or trademarks;
      3. the Customer shall within a maximum of three (3) Days from termination, pay to the Company all outstanding fees under the Agreement, if applicable;
      4. the full amount of the License Fees for the Subscription Period in which the Agreement is terminated applies and is payable, regardless the day of the termination. The Company shall cease charging new License Fees from the first day of the following Subscription Period.
   7. The provisions of this Clause shall survive the termination of this Agreement and shall remain in force indefinitely.
   8. Upon the termination of this Agreement for any reason, the Customer shall not have a claim against the Company by reason of the termination of the Agreement or any right hereunder. The Customer hereby expressly waives all compensation, claim for damages, payment for goodwill, severance payment, indemnity or any amount for any other cause by reason of such termination.
10. COPYRIGHT AND TRADEMARKS
    1. The Customer acknowledges and agrees that the Company owns and shall retain all intellectual property rights in the Platform, Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer or the Users any rights to, or in, patents (provisional, pending or granted), copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Platform, Services or the Documentation.
    2. You retain full ownership of your content ("User Content"). By "User Content," we understand both the stuff you upload on the Platform ("User Contributed Content") and the content you generated/published on the Platform ("User Created Content"). The Company does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, or any other materials ("User Content") that you post on the Platform. However, we need you to grant us certain rights in the "User Content" so that we can incorporate such "User Content" into our services. Without such rights, we may be violating copyright and other laws by storing, posting, backing up, and allowing the download of User Content. Therefore, by displaying or publishing any content on or through the Platform, you hereby grant the Company a non-exclusive, fully paid, and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce, and translate such content, including without limitation distributing part or all of the Site in any media formats through any media channels, except content not shared publicly ("private") which will not be distributed outside the Company.
    3. The Company expressly disclaims any and all liabilities in connection with any User Contributed Content or User Created Content.
11. COMPLIANCE AND DUE DILIGENCE
    1. The Customer hereby certifies that it is a legal entity and not an individual or a third party acting on behalf of this entity, and is the owner of the domain specified in its statements, or has the right and legal authority to use it. The Customer undertakes to correspond with the Company in writing, using the corporate e-mail addresses only.
    2. The Customer shall provide up to date documents for procedures deemed necessary by the Company, to update internal records, from time to time and/or as deemed necessary. Failure to provide the Company recent documents within the timeframe given by the Company shall constitute a breach of this Agreement. The Company warrants confidentiality of all provided documents in accordance with Clause 8 of this Agreement.
    3. The Customer agrees and warrants that all information and documents provided to the Company is complete, accurate and not misleading, and will be provided to any official state or federal authority if requested. The Customer also warrants that scans/copies of any documents sent to the Company via electronic means shall be made from the official and original documents, and shall be considered true and original certified copy for the purposes of this Agreement.
12. INDEMNIFICATION AND LIMITATION OF LIABILITY
    1. The Customer understands and acknowledges that the Company is a software development company and does not provide nor offers any kind of financial, investment, hosting and data feed services in any local or international currency, nor is the Company involved in any respect, directly or indirectly in any commission-based payments concerning any trading operations of the Customer. The Customer shall indemnify and hold harmless the Company against all claims, demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses including but not limited to attorney’s fees and costs, whether or not involving a third-party claim, arising out of the Customer’s services as these have been rendered by Platform utilisation or the Customer’s use or its inability to use the Platform.
    2. The Customer represents and warrants that it is lawfully entitled and eligible to enter into this Agreement and use the Platform. In the event that the Customer is found to undertake activities out of the scope of this clause, it is doing so without the Company’s consent or knowledge, and the Customer shall indemnify the Company from any and all liability that may be incurred in that respect.
    3. In no event shall the Company, or any of its employees, affiliates, contractors, directors, officers be held liable to the Customer or any third party, whether in contract, tort (including negligence), or otherwise, whether foreseeable or not, for:
       1. Any direct, indirect, incidental, special, punitive or consequential damages (including without limitation any loss or corruption of data, interruption, computer failure or pecuniary loss) arising out of the use or inability to use the Platform and/or services provided via any website owned by the Company;
       2. Any loss of revenue, income, goodwill, business, profits or anticipated savings (whether direct or indirect), arising out of the use or inability to use the Platform and/or services provided via any website owned by the Company;
       3. Any loss of agreement or contracts;
       4. Any loss that is indirect or secondary consequence of any act or omission of the Company; and
       5. Any loss or damage arising out of or in connection with:
          • Any disruption or delay in any communication when using the Platform and/or services provided and any website owned by the Company;
          • The suspension or termination of this Agreement by either Party or any decision not to renew its terms;
          • The Customer’s decision not to update upon release of new versions of the Platform.
    4. Subject to Clause 12.3, the total aggregate liability of the Company to the Customer in respect of all loss or damage arising out or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in no circumstances exceed the sum of one initial License Fee stated in clause 6 of the Agreement.
    5. The Customer understands and acknowledges that the Company has no direct or indirect relation, or any other conflict of interest, with the Customer's Users/ clients/partners nor bears any responsibility towards them. Throughout the duration of this Agreement as well as after its termination, all obligations in regard to the Customer's Users/ clients and/or partners remain the liability of the Customer, without any involvement and/or liability of the Company. The Company shall not be held liable for any legal actions and/or third party claims arising from the relationship between the Customer and its Users/ customers/ partners, relating to the operation of the Platform or from the use of any and all services provided on any Company’s website by the Customer and its Users/ customers/ partners.
    6. The Customer warrants that he is the owner, or holds a valid licence, of any Marks provided to the Company for incorporation into the Platform. The Customer shall indemnify the Company against all damages, liabilities, losses, costs or expenses, including but not limited to attorney’s fees and costs, incurred in relation to or as a result of any third-party claim, that the use of the Marks in connection with the Platform infringes its rights. In the event of such a third-party claim the Customer shall inform the Company and such Marks shall be replaced with immediate effect.
    7. The Customer shall indemnify and hold harmless the Company from and against all claims, demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses, including but not limited to reasonable attorney’s fees and costs, whether or not involving a third-party claim, which arise out of the use or misuse of any version of the Platform. The Customer is solely responsible for determining the appropriateness of use and assumes all risks associated with the use of any versions of the Platform, including but not limited to the risks of program errors, damage to equipment, loss of data or software programs, or unavailability or interruption of operations. In no event shall the Company be liable for claims, damages or other liability arising from, out of, or in connection with any versions of the Platform, whether foreseeable or not.
    8. The provisions of this clause 12 shall survive the expiration or termination of this Agreement.
13. FINAL PROVISIONS
    1. Severability: If any term or any part of a provision of this Agreement is found by a competent judicial authority to be invalid or unenforceable in any respect, the validity of the remainder of this Agreement shall be unaffected, provided that such unenforceability does not materially affect the operation of this Agreement.
    2. Waiver: A Party's failure to exercise or delay in exercising any right, power or privilege under this Agreement shall not operate as a waiver; nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof.
    3. Assignment: (1) The Company may at any time assign, sub-contract, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under this Agreement. (2) Except as expressly permitted by this Agreement, the Customer shall not assign, transfer, sub-license, sub-leasing, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under this Agreement (including the license rights granted), in whole or in part, without the Company’s prior written consent.
    4. Set-Off: Each Party shall pay all sums that it owes to the other party under this Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
    5. No Partnership Or Agency: The Parties are independent and are not partners or principal and agent and this Agreement does not establish any joint venture, trust, fiduciary, or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall have, nor shall represent that it has, any authority to make any commitments on the other party’s behalf.
    6. Force Majeure: In the event that either party hereto is prevented in the performance of any obligation herein by reason of an act of God, fire, flood or other natural disaster, war, insurrection or other reason of like nature not the fault of the party in performing under this Agreement, then the performance of such obligation shall be excused for the period of the delay and the period of the performance of any such obligation shall be extended for a period equivalent to the period of such delay upon written notice to the other party, except that if any delay exceeds 3 (three) months, then the party entitled to such performance shall have the option to terminate this Agreement by giving 7 (seven) Days’ written notice to the affected Party.
    7. Governing Law: This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation will be governed by and construed in accordance with the substantive laws of Romania without giving effect to principles of conflict of laws that would require the application of any other law. All disputes arising under or relating to this Agreement shall be brought and resolved solely and exclusively in the competent Court from the Company’s headquarters.
    8. Jurisdiction: Most disputes can be resolved without resorting to litigation. Any dispute arising between the Parties shall be settled through negotiations between the Parties. In the event that a dispute is not resolved through negotiations within 15 (fifteen) Days from the date the dispute has arisen, each Party irrevocably agrees that the State Court from the Company’s headquarters shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
    9. Miscellaneous: The Company may introduce changes to the terms and conditions of this Agreement as deemed necessary from time to time. Any amendment will become effective when it is first posted to the Company’s website and the Customer agrees to be bound by the revised Terms. Any notices required or permitted to be given under this Agreement shall be given in writing and shall be delivered by any of the following means: (i) in person, (ii) courier service, (iii) registered mail, (iv) electronic mail to the address specified in this Agreement or such other corporate address as either Party may specify in writing. The express terms and conditions of this Agreement are in lieu of all warranties, conditions, terms and obligations whether implied by or arising under statutes, common law, custom, trade usages, common practice, business or other provisions, all of which are hereby excluded to the fullest extent permitted by law.

Please contact us at contact@interactively.eu with any questions regarding this Agreement.