General Terms and Conditions
I. Introductory provisions
2. These General Terms and Conditions govern the binding rules and conditions of use of the Software and regulate the rights and obligations of the User.
3. By accepting these General Terms and Conditions, the User expresses his/her unconditional consent to them.
4. By accepting these General Terms and Conditions, the User confirms that he/she has read and understood the General Terms and Conditions. By agreeing to this, the General Terms and Conditions become binding and the User expresses his/her will to be bound by these Terms and Conditions for the entire period of provision and use of the Software.
5. The Software has been developed primarily for use in the User’s business activities.
1. Acceptance of these General Terms and Conditions will result in the conclusion of a contract between the Provider and the User. The contractual relationship between the Provider and the User and, where applicable, the Collaborators is governed by these General Terms and Conditions.
2. The Provider is entitled to unilaterally change these General Terms and Conditions to the extent appropriate, e.g. due to changes in legislation or other regulatory changes or due to changes in the functionality of the Software. If the Provider decides to change these General Terms and Conditions, it shall notify the User of the change at least 15 days before the intended effectiveness of the change, in writing, electronically via the e-mail address provided by the User during registration.
3. In the event that the User does not agree with the change of the General Terms and Conditions, he/she is obliged to notify the Provider in writing no later than on the day preceding the day on which the announced change of the General Terms and Conditions is to come into effect, stating that he/she rejects the change of the General Terms and Conditions and terminates the license agreement for this reason. Refusal to change the General Terms and Conditions will result in termination of the License Agreement. In the event that the User continues to use the Provider’s Software after the change to the General Terms and Conditions becomes effective, the User agrees to the change to the General Terms and Conditions and the changed General Terms and Conditions become binding for the User and therefore for the Cooperating Persons.
III. Terms and Conditions of License to Use the Software
1. The Provider grants the User the right to exercise the right to use the Software under the terms and conditions specified in these General Terms and Conditions for the term of the agreement. The User agrees to provide the Provider with a license fee for this license in the amount determined by the current
Provider’s price list
published on the Provider’s website (i.e. also free of charge), unless otherwise agreed between the Provider and the User.
2. The software is accessible to the User through the Provider’s interface via the Internet and through the mobile application for supported mobile devices.
3. The license to the Software is granted as non-exclusive, without territorial limitation, for the purpose of its use, in particular for the business activities of the User and the Cooperating Persons.
4. The User is not entitled to grant a sub-license or assign the license to a third party, except to allow the use of the Software by the Collaborators.
5. A condition of granting access to the User to use the paid and non-paid version of the Software is the User’s registration on the website www.freshflow.cz or via the mobile app. Registration can be done via Google or with an email and password. When registering by e-mail, the User will receive an e-mail with an authorization link, which he/she must confirm. The user account is created by clicking on the authorization link sent in the confirmation email. In case of registration via Google, the User uses his/her Google account to access the Provider’s website. Once a User account has been created, the User may order the paid version of the Software through his/her account. The User is obliged to provide true contact details when registering and to keep them up to date during the term of the contract. The Provider shall be entitled to send the User, via the contact details, any communications relating to the Software.
6. The User is responsible for the secure storage of the access data to the Software and for protecting it from misuse. The User shall not be entitled to disclose his/her access data to the Software to a third party, without prejudice to the regulation of the User’s Collaborators under the provisions of Art. I para. 1 of the General Terms and Conditions. The Provider is not responsible for misuse of the User’s access data.
7. The User is not entitled to interfere in any way with the Software, in particular not to make copies of it or to interfere with the source code of the Software. The User agrees not to copy the source code of the Software, modify any part of it, create computer programs derived from the Software based on the source code, reverse engineer, decompile or otherwise attempt to extract the Software, take any action that could lead to overloading of the database systems that are part of the Software and thus cause malfunction of the Provider’s servers or other hardware, or compromise the privacy and security of the Provider’s data, respectively. other users of the Software.
8. If the User’s activities cause the Provider to doubt the proper use of the Software, compliance with the terms of this Agreement or legal regulations, for example, by the User connecting from multiple IP addresses at the same time, the Provider shall have the right to immediately terminate the User’s right of use and access to the Software, or. to some of its functionalities, to block the User.
1. Data entered into the Software by the User may create a database of the User who entered the data and organized it methodically or systematically (hereinafter referred to as “Database“).
2. The User is the acquirer in relation to the Database within the meaning of Section 89 of the Copyright Act.
3. The User undertakes that, as the purchaser of the Database, it will extract and use the contents of this database only in a manner in accordance with the legal regulations that does not interfere with the rights of third parties and the copyrights to the Software. In particular, the User undertakes not to make use of the contents of the Database by making it available in electronic form, by on-line access to the Provider’s servers or by logging into the Software to other persons, except for the functions that the Software itself allows within its functionalities. Without limitation, the User may extract and use the contents of the Database in printed form.
4. The User is responsible for backing up the data and all content stored in the Database. In the event that the User makes any changes to the content of the Database, such as accidental deletion of data, the Provider is not responsible for restoring the content to its original state.
V. Data Protection (Processing Agreement)
1. The User will use the Software, inter alia, by storing personal data of its clients in the Database, which it will process as the administrator, based on the reasons for processing personal data set out in the relevant data protection regulations, or based on the User’s clients’ consent to the processing of personal data granted by these persons to the User. In the event that the User has designated the Collaborators, the User is obliged to ensure that they act as the controller or joint controller of the personal data entered into the Database, resp. Software, will be entered by such Collaborators and that he/she will be authorized to enter into arrangements with the Provider regarding the handling of such personal data.
2. Thus, the Provider may process the personal data of the Users’ clients and the personal data of the Cooperating Persons. For this reason, this Article sets out the mutual rights and obligations in the processing of personal data of the Clients and the User’s Collaborators that will be stored in the Database, in particular, to define the scope of such personal data that will be processed by the Provider as a processor, the purpose for which such personal data will be processed by the Provider, the conditions and guarantees of the Provider in terms of technical and organizational measures to ensure the protection of such personal data and certain other related rights and obligations, in accordance with the relevant regulations on the protection of personal data.
3. The User authorizes the Provider to process personal data stored in the Database, i.e. personal data such as contact details collected from the User’s clients and Collaborators:
– to the extent that the User is authorized or authorized to process personal data,
– for the duration of the contract and for the period necessary to settle the mutual rights and obligations of the parties.
The Provider undertakes to process personal data stored in the Database solely for the purpose of fulfilling the contract with the User.
4. The data will be processed by the Provider both automatically and manually. In particular, the Provider will collect, store, store, block and destroy the data in the context of processing.
5. The Provider undertakes to process personal data only on the basis of the User’s instructions set out in these General Terms and Conditions; if, in the Provider’s opinion, a particular instruction violates the relevant data protection regulations, it shall inform the User thereof without undue delay.
6. The User hereby authorises the Provider to process personal data in the territory of the EEC and on facilities located in the territory of the EEC. The Provider is entitled to request further instructions from the User to the extent necessary. If the Provider concludes that the execution of an instruction given by the User will lead or could lead to a breach of the Provider’s obligations under the applicable legislation or this Processing Agreement or the Contract, it shall inform the User without undue delay of the incorrectness of such instruction, together with the reasons for its incorrectness, and shall request the User to give a new instruction.
7. If the Provider discovers that the User or any third party that manages or processes personal data violates the obligations set forth in the relevant regulations for the protection of personal data, the Provider shall notify the User of this fact in writing without undue delay and suspend the processing of personal data in relation to which the violation occurs until such violation is eliminated.
8. The Provider undertakes to treat the data stored in the Database as the User’s trade secret, in particular not to copy the contents of the Database or otherwise manipulate the data files and make them available without the User’s consent. to unauthorised persons. This does not apply to the necessary technical backups in case of technical management of this database, Software, servers or computer network of the Provider, which the Provider needs to ensure the operation of the Software and Database or to handle the User’s query or request through the Provider’s customer support or to detect, prevent activities aimed at misuse of the Software, Provider’s servers or compromise their security and security of data stored on the Provider’s servers.
9. The Provider shall take measures to prevent unauthorised reading, creation, copying, transfer, modification or deletion of records in the Database containing personal data within the meaning of Art. 32 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27. April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation) (hereinafter referred to as “GDPR“). The following are considered appropriate technical and organizational measures on the Provider’s side:
– Protection of media and devices containing personal data (documents, CDs, servers, data storage devices, etc.) against unauthorised access by electronically securing the premises where they are stored;
– in relation to personal data stored electronically, protection against unauthorised access, loss, destruction, alteration or unauthorised disclosure of such personal data through the implementation of access rights, security backups, anti-virus protection and encryption;
– the designation of authorised employees, where only those employees are authorised to access and process personal data;
– proper instruction of the Provider’s employees involved in the processing of personal data on the method of processing personal data under this contract and on the technical and organizational measures to secure personal data taken in this context;
– continuous electronic record keeping to identify and verify when, by whom and for what reason personal data were recorded or otherwise processed, for a period of two years counted backwards.
The Provider undertakes to continuously evaluate the technical and organizational measures adopted and to test their effectiveness. At the User’s request, the Provider shall always provide the User with an up-to-date list of the technical and organizational measures taken.
10. Taking into account the nature of the processing, the Provider shall assist the User through appropriate technical and organisational measures, where possible, to fulfil the User’s obligation to respond, for a fee, to requests for the exercise of the data subject’s rights.
11. The Provider shall assist the User for a fee in ensuring compliance with the obligations under Articles 32 to 36 of the GDPR, taking into account the nature of the processing and the information available to the Provider.
12. In the event of termination of the contract, the Provider shall initiate the destruction of all personal data in the Database within a reasonable period of time, which shall not exceed three months from the termination of the contract.
13.The Provider is entitled to entrust other processors (sub-processors) with the processing of data on the basis of a written contract (including electronic form), under the same conditions and to the same extent as stated in these General Terms and Conditions. An up-to-date list of sub-processors is available at the Provider’s registered office or in electronic form upon request.
14.The Provider undertakes not to provide any third party with the personal data of the User’s clients and clients of the User’s Collaborators without the User’s prior written consent, except where it is legally obliged to do so.
15. The Parties undertake to provide each other with all necessary cooperation, information and documentation to ensure compliance of the performance under the Contract with the relevant data protection regulations.
16. By agreeing to these General Terms and Conditions, the User also consents to the collection, use and publication of its content and data by the Provider, based on the grounds for processing personal data set out in the relevant legislation. If the law requires a special consent of the User for the handling of his/her personal data and content, the Provider is obliged to request such consent outside the scope of these General Terms and Conditions.
17. In the event that the User collects personal data of third parties, the User is obliged to handle such data in accordance with the relevant applicable legislation. The User declares that it fulfills all obligations set forth in the GDPR and related regulations, that it is authorized under the GDPR to process personal data of third parties as a personal data controller and that it is authorized to accept this Processing Policy by the Provider as a personal data processor.
18.In the event that the breach of obligations in processing personal data by the User causes any damage to the Provider, the User undertakes to compensate the Provider for it, including compensation for the costs reasonably incurred and the costs of legal representation.
VI. Rights and obligations of the Provider
1. The Provider undertakes that the Software will be available and usable generally 24 hours a day, 7 days a week.
2. The Provider shall have the right to operatively perform necessary interventions on its hardware equipment on which the Software or Database is stored and to perform regular maintenance, repairs and up-grade of the Software, usually outside working days and outside working hours (i.e. from 7.00 a.m. to 8.00 p.m.), while such interventions may result in partial or complete downtime of the Provider’s Software or Database. In the event that the Software needs to be repaired or modified outside of this time for more than 30 minutes, the Provider shall notify the User in a timely manner, but at least 24 hours in advance, by means of a notification sent to the Notification section of the User’s account. This obligation does not apply to situations that cannot be foreseen in advance.
3. The User acknowledges that due to the nature and stage of development of the Software, the User’s and the Collaborators’ access to the Software or the Database may be temporarily restricted. The Provider does not warrant to the User that the Provider’s Software will meet the User’s requirements for its functionality and that its use will be timely, secure or error-free. The Provider does not warrant that the data and outputs processed by the Software will be accurate or reliable or that any defects in the Software will be corrected. No warranties or other conditions (including any implied conditions of satisfactory quality, fitness for a particular purpose or conformity to description) apply to the Software provided by the Provider except as expressly set out in these terms and conditions.
4. The Provider is entitled to place advertising in the form of banners in the user environment of the Software.
5. The User is entitled to use the Provider’s customer support service, to which the User can report a Software defect via the support tool on the Provider’s website or contact the Provider’s customer support via e-mail: email@example.com.
6. The Provider may from time to time develop new functionality, modifications or a higher version of the Software. In the event that this happens, the Provider is entitled to implement the new functionality, modification or higher version of the Software without further delay, provided that it does not require additional payments for such implementation.
7. However, the Provider is entitled to require additional payments for the use of new functionality, modifications or higher versions of the Software. In this case, the implementation will be offered to the User for use. Acceptance of this offer will automatically extend these General Terms and Conditions to this new part of the Software, provided that in the case of a paid offer, the license fee paid by the User will be increased accordingly by agreement of the parties.
8. The Provider does not undertake to supply updates to the Software.
VII. Rights and obligations of the User
1. The User acknowledges that the functionality of the Software may depend on the quality of the device used by the User. The Software can be accessed via Google Chrome 30+, Mozilla Firefox 40+, Internet Explorer 10+, Safari 7+, Vivaldi 1+ or Opera 34+. The mobile app is available for iOS and Android mobile phones. The Software does not impose any special requirements on the User’s operating system.
2. The User shall be fully responsible for the content that he/she adds to the Software, respectively. Database, shall be entered by himself or by a Collaborator. This also applies in the case of content inserted as a result of a virus, hacker attack or other User error or loss of control, even temporarily, of the User over his account. The Provider is not obliged to check the content uploaded by the User, but is entitled to do so, especially if it suspects that the content uploaded by the User to the Database, resp. to the Software is in breach of these General Terms and Conditions or the law.
3. It is forbidden to act and insert content into the Provider’s Software or Database that: – is not in accordance with applicable law;
– is not in accordance with good morals;
– could be a nuisance to other users of the Software or third parties;
– could damage the Provider’s reputation;
– is used to disseminate inappropriate content; or
– violates the rights or privacy of other users or third parties.
4. In the event that prohibited content or actions of the User are detected that would be contrary to these General Terms and Conditions, the Provider is entitled to:
– restrict the User’s access to the Software;
– delete or refuse to insert prohibited content;
– terminate the license agreement without notice and without refund of the license fee paid,
– require the User to compensate for damages resulting from the insertion of prohibited content into the Software or Database.
5. The Provider is entitled to refuse to upload content that exceeds the storage or file size limits allowed by the Provider’s Software.
6. In the event that the Provider suspects a violation of the provisions of these General Terms and Conditions, it reserves the right to inspect the content uploaded by the User. This authorization does not imply the Provider’s obligation to control the User’s content. The user is individually liable for damages caused by his/her actions.
7. The User is obliged to protect the Provider’s Software from unauthorized and fraudulent use by unauthorized persons by all appropriate means. The Provider is entitled to revoke access to the Provider’s Software without compensation in case of unauthorized use of the Provider’s Software. The Provider may cancel the User’s account even if the User has not used his/her account for more than one year.
1. To the extent permitted by law, any liability of the Provider for any damage or non-pecuniary damage resulting from the use of the Software or, on the contrary, the inability to use it, restriction of access or failure of functionality of the Software or Database or loss of data is hereby excluded. This does not apply to damage caused to the User’s natural rights and to damage caused intentionally or through gross negligence. The User is not entitled to compensation for damages related to any failure or downtime of the Software or the Database. The User acknowledges this and waives all claims for damages.
2. In particular, any liability of the Provider for indirect damages or lost profits of the User or any third party is excluded.
3. The Provider shall not be liable for failure to fulfil the obligations arising from these General Terms and Conditions in the event that the failure to fulfil them is due to circumstances that are unforeseeable and uncontrollable (e.g. war, strike, force majeure).
4. The User is obliged to compensate for any damages, including lost profits and related costs (including legal costs), which the Provider incurs in the event that the User or a person to whom the User has granted access to the Software violates these General Terms and Conditions, any other agreement with the Provider or general legislation, whether the violation occurs due to the acts or omissions of the User or a relevant third party.
5. The User shall be liable for the acts (or omissions) of the Collaborators as if the User had acted alone.
6. In the event that the User violates its obligation not to interfere with the Software, it is obliged to pay the Provider a contractual penalty in the amount of CZK 1.000.000, – (in words: one million Czech crowns) for each individual case of violation. The claim for payment of the contractual penalty shall in no way affect the claim for compensation for damages caused to the Provider by the breach of obligation.
IX. Licence fee
1. Price list of license fees for the use of the Software published on the Provider’s website, respectively. of its sub-modules and functionalities is an integral part of the General Terms and Conditions; the Provider is entitled to negotiate with the User a different amount of licence fees.
2. Unless otherwise stated, royalties are exclusive of VAT.
3. The VAT rate will be determined in accordance with applicable legislation.
4. Licence fees are payable in advance. In case of default in payment of any amounts by the User, the Provider is entitled to prevent the User from accessing the Software and terminate the Agreement without notice.
5. Upon receipt of payment, the Provider shall issue a tax document – invoice to the User, which shall be sent electronically to the e-mail address provided by the User.
X. Termination of the contract
1. The contract is concluded for a definite term, namely for the period from the date of acceptance of the General Terms and Conditions until the expiry of the period chosen by the User and to which the paid licence fee applies; all this if the User notifies the Provider in writing not later than ten days before the expiry of the agreed period that he is not interested in the extension of the contract. If the User does not notify the Provider according to the previous sentence, the contract is extended for the same period of time for which the original contract was concluded (i.e. always for the originally agreed period). The other terms and conditions of the existing contract remain unchanged in this case.
2. In the case of use of the free version of the Software by the User, the contract is concluded for a definite period of time, until the date of cancellation of the User’s account. The User may cancel the User account at any time by contacting the Provider with a request to cancel his/her account at the e-mail address firstname.lastname@example.org.
3. Upon termination of the contract, the User loses access to the Software, including all data stored in the Database; this data will be subsequently deleted by the Provider.
4. The Provider is entitled to terminate the contract with the User before the expiry of the period for which it was concluded, by giving notice without notice, in the event that:
– as set out in these General Terms and Conditions,
– The User makes or attempts to make unauthorized use of the Software,
– The User unauthorizedly interferes with the source code of the Software or attempts to do so,
– The User otherwise violates its obligations under the contract with the Provider, resp. from these General Terms and Conditions (e.g. in the event of a breach of the obligation to pay the licence fee or any other monetary obligation to the Provider) or from general legislation.
5. Termination by the Provider is effective upon delivery to the User electronically to the e-mail address provided by the User when registering for the Software or to another publicly known address. If the e-mail address provided by the User during registration is not functional (e.g. because it has been cancelled by the User), without providing a new contact e-mail address, this Agreement is automatically terminated at the moment when the Provider becomes aware of the User’s non-functional e-mail address.
6. The Provider may terminate this Agreement and make the Software unavailable at any time without compensation in the event that it is ordered to do so by a decision of a public authority or the operation of the Software is not permitted by applicable law.
7. In the event that the Provider terminates the contract with the User prematurely for the reasons provided for in these General Terms and Conditions, resp. otherwise prevents the User from using the Software, the User shall not be entitled to a refund of the fees already paid or any part thereof.
XI. User in the position of a consumer
1. The Software is primarily used to facilitate the business activities of Users. The provisions of this Article shall apply exclusively to the case where the User would be a consumer even though the Software is not adapted for use by consumers.
2. The consumer is entitled to withdraw from the contract within 14 days from the date of conclusion of the contract by sending a written withdrawal to the e-mail address: email@example.com. or to the address of the Provider’s registered office. The following text may be used to withdraw under this paragraph: “I (consumer’s name) hereby give notice that I am withdrawing from the license agreement entered into between me and your company on (*),” accompanied by: the consumer’s name and surname, the consumer’s address, the consumer’s email address, the date and the consumer’s signature. In the event of withdrawal from the Contract under this Article, the Provider shall return the funds received from the User within thirty (30) days of withdrawal from the Contract, in the same manner as the Provider received them from the User. The Provider is also entitled to return the funds in a different way, if the User agrees to this and no additional costs are incurred by the User.
3. In accordance with the provisions of Section 1823 of Act No. 89/2012 Coll., Civil Code, the User agrees to provide access to the Software before the expiry of the withdrawal period of 14 days. In the event of the User’s withdrawal from the contract, the performance of which has already begun, the User shall be obliged to pay the Provider a pro rata portion of the license fee.
4. The rights and obligations of the contracting parties with regard to rights arising from defective performance are governed by the relevant generally binding regulations (in particular the provisions of Sections 1914 to 1925 of Act No. 89/2012 Coll., the Civil Code and Act No. 634/1992 Coll. on Consumer Protection).
5. The User has the right to out-of-court settlement of a consumer dispute arising from a contract concluded with the Provider. The entity responsible for out-of-court settlement of such a consumer dispute is the Czech Trade Inspection Authority (hereinafter referred to as “CTIA“), www.coi.cz. Out-of-court resolution of a consumer dispute is initiated at the request of the User. The requirements of the proposal are contained in Act No. 634/1992 Coll., on Consumer Protection. The User may file a petition with the CTI within 1 year from the date on which he/she first exercised his/her right, which is the subject of the dispute, with the Provider.
XII. Final arrangements
1. In the event that any provision of these General Terms and Conditions is or becomes invalid or unenforceable, the remaining provisions shall remain in full force and effect.
2. This Agreement shall be governed by the law of the Czech Republic and any disputes shall be submitted to the courts of the Czech Republic for adjudication.
3. The software was developed primarily for use in the business activities of legal entities and self-employed persons with a focus on client portfolio management.
4. These General Terms and Conditions are effective from 1.10.2021.
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