GENERAL CONDITIONS TO THE SERVICE AGREEMENT ON THE USE OF COMPUTER SOFTWARE – DEFINITIONS
‘Customer’ means the Romanian or foreign legal entity, signatory of the Agreement, with the identification data specified in the Agreement.
‘Agreement’ means the Service Agreement consisting of: Agreement and General Conditions. Any reference to the Agreement means a reference to all parts thereof unless the context requires otherwise.
‘Fraud’ means any act or omission of the Customer that: (i) constitutes a breach or an attempted breach of its contractual or legal obligations, with the intention to cause either to the Provider or a third party damage of any kind or to obtain an undue benefit for itself or another; or (ii) results in the occurrence of such damage or obtaining such benefit.
‘Software Package/Application’ means the software programme/software solution used online.
‘Provider’ is MENISTO SOFTWARE S.R.L., having its head office in Bucharest, 3th district, 91-95 Dristorului Street, 3th floor, a company registered with the Trade Register under no. J40/9624/2015, CUI 34855470.
‘Services’ means the access which the Provider grants to the Customer in order to use the Software Package/Application also including, but not mandatorily, all the related and relevant services as described in the Agreement.
‘Site’ is the website owned and administered by the Provider through which the access to the Application is provided and/or through which the Customer can provide contact data in order to be contacted by the representatives of the Provider.
‘User’ means the natural person designated by the Customer to use, in whole or in part, the Services contracted by the Customer under the Agreement.
1.OBLIGATIONS OF THE PARTIES:
1.1. Obligations of the Provider:
The Provider undertakes to provide to the Customer access to the Application according to the provisions of the Agreement;
To provide support online;
To issue the relevant invoices, according to the conditions of the Agreement;
To maintain the Customer Data strictly confidential and safely throughout the Agreement;
To remedy the defects of the Application as soon as possible.
1.2. Obligations of the Customer:
To make the payment for the use of the contracted Application under the terms and conditions set out in the Agreement.
1.3. Use of the Application
1.3.1. Any application provided to the Customer through the Services is the property of the Provider and/or its partners. The Customer understands and agrees that, by using the Application, will not acquire any rights in the Application, including but not limited to, copyrights, intellectual property rights.
1.3.2. Any reproduction or redistribution of the Application shall be prohibited, including reproduction or redistribution of the Application on another server, or its use for marketing or production purposes. Any unauthorized attempt to access the Application and the infrastructure on which the Application is running shall be punishable by law.
1.3.3. The Customer shall not decompile, use reverse engineering and shall not attempt in any other way to find the source code of the Application.
1.3.4. From time to time, the Application may be updated. These updates are designed to improve and to further develop the Services and may be aimed at fixing errors, improving certain functions, developing new modules of the Application and new versions. The Customer agrees to receive such updates as part of the Services used by the Customer.
1.3.5. The Customer understands and agrees that, in order to be able to use the Application, the Customer must maintain an active data service (Internet).
2.1. The rates for the Services contracted by the Customer will be set in EUR and are listed on Menisto.com website.
2.2. The Provider may change the rates of its Services at any time, in compliance with the applicable legislation, at least 30 calendar days before the change becomes effective. The Customer shall be entitled to terminate the Agreement in accordance with the termination provisions.
3. INVOICING. PAYMENT.
3.1. The invoices for Services will be issued in RON at the official RON/EUR exchange rate of NBR (National Bank of Romania) at the date of issue of the invoice.
3.2. The invoices will be sent to the Customer in electronic format to the e-mail address specified in the Agreement. The Customer who complains that it did not receive the e-mail with the invoice shall not be exonerated from paying it.
3.3. If the Customer fails to pay its liabilities within the time limits set out in the Agreement, the Customer is in default. The date of the payment will be considered the date on which the payment of the full debt credits the account of the Provider.
3.4. The Customer represents and agrees that the invoices issued by the Provider as well as any copies or extracts kept by the Provider in electronic form will constitute a total and immediate proof of the Customer’s debt to the Provider.
3.5. The Customer represents and agrees that the notifications about the issuing of invoices in electronic format will be sent only by e-mail to the e-mail address communicated by the Customer in this respect.
4. LIABILITY OF THE PROVIDER
4.1. The Provider shall be solely liable for the application contracted by the Customer and only to the Customer. For the avoidance of doubt, the Provider shall not be liable for damage of any kind incurred by the Customer in connection with the third party services. Likewise, the Provider shall not be liable for any errors/defects of the Application caused by the actions/omissions/negligence of the Customer in using the Application.
4.2. The Provider shall not be liable to the Customer and/or to third parties for any damage, loss of profit, unrealized gains and/or failure to take advantage of business opportunities or any other loss incurred by the Customer arising directly and/or indirectly from, but not limited to: (i) misuse of Application; (ii) breakdown of the Application for reasons related to third party actions; (iii) failure of the Customer’s e-mail address; (iv) force majeure event.
4.3. The Provider shall not be liable to the Customer and/or to third parties for any indirect damage including, but without limitation, loss of profit, unrealized gains and/or failure to take advantage of business opportunities or any other similar losses incurred by the Customer as a result of the lack of access to the Services or the provision of Services of inadequate quality.
5. LIABILITY OF THE CUSTOMER
5.1. The Customer shall notify the Provider immediately of any change in the information provided at the time of the conclusion of the Agreement.
5.2. The Customer shall pay in full the payment obligations incumbent on it, according to the provisions of the Agreement.
5.3. The Customer shall not use the Application for unethical or illegal purposes and shall not allow any third party to use the Services.
5.4. The Customer shall be solely liable for any breach of the applicable regulations concerning the use of the Application, the purpose of its use or the content transmitted, stored, displayed or which is, in any way, subject to operations carried out with the support of or through the Application.
Misuse of Services
5.5. The Customer understands and agrees that any of the methods of use of the Services according to this article shall be considered misuses and shall be completely forbidden, subject to the sanctions provided in the Agreement:
Use of the Services to test equipment;
Use of the Services to commit a Fraud;
Offering for a consideration or for free the possibility to third parties to use the Services for other purposes than those agreed under the Agreement, including the marketing of the Services to third parties.
If the Customer wishes to terminate the Agreement, the Customer shall be bound to pay termination costs, and such costs shall be equal to the equivalent amount of the monthly subscription for the current month. The Customer understands and agrees that the obligation to pay the termination costs shall remain in force only until the expiration of the current month, thereafter the Agreement may be terminated at any time without the obligation of the Customer to pay termination costs.
7. SUSPENSION OF USE OF THE APPLICATION/REACTIVATION
7.1. The Provider shall be entitled to suspend Customer’s access to the Application in the situation and under the terms provided in this Agreement, and for any situation in which the Customer is in breach of the its obligations hereunder. For the situation of the breach by the Customer of its obligations hereunder, the Provider shall notify the Customer about the fact and reasons for the suspension. If the Customer fails to remedy or remove the reasons that generated the application of the measure of suspension within the time limit indicated by the Provider in the notification, the Provider shall be entitled to terminate this Agreement and to request the Customer to recover the damage caused as a result of termination of the Agreement for its fault.
7.2. The Customer understands and agrees that the temporary suspension of the access to the Application for reasons related to the Customer shall not exonerate the Customer from paying the amount of its monthly subscription or any amounts owed to the Provider. The suspension of the Service shall not affect the right of the Provider to charge late payment penalties for the payment with delay of the invoices, in accordance with the provisions of the Agreement.
7.3. In case the suspension occurred for reason of non-payment, and the Customer makes the payment in full prior to the termination, the Customer will be automatically reconnected within 24 working hours after the date on which the full payment of the debt was confirmed into the account of the Provider. After the termination of the suspension, the Agreement shall be deemed to be continued and all its provisions shall apply accordingly.
7.4. If the suspension occurred for any reason other than non-payment, the Customer will be automatically reconnected within 24 working hours from the date on which it remedied the breach or ceased the actions that generated the suspension of the access to the Application. Subsequent to the termination of the suspension, the Agreement shall be deemed to be continued and all its provisions shall apply accordingly.
8.1. This Agreement shall be terminated in any of the following situations:
upon the expiration of the term of the Agreement;
by joint consent by concluding an addendum;
in case of force majeure, according to Article 10 below.
8.2. The termination of the Agreement shall be effective only for the future and shall not affect the successive benefits which were made prior to its termination.
8.3. If either Party fails to fulfill its obligations hereunder, the affected party shall give a written notice to the defaulting Party to make all efforts within maximum 30 days to properly fulfil the contractual terms. If at the expiration of the 30 day period, the defaulting Party fails to remedy the deficiency, then the other Party shall have the right to request the termination of the Agreement and payment of damages.
9. OTHER CLAUSES – NULLITY
If any of the provisions of this Agreement is contrary to law and/or or mandatory legal provisions, public order or moral values, all other provisions of the Agreement shall remain valid and shall continue to apply, and the invalid clauses shall be replaced with applicable legal provisions by the operation of law.
10. FORCE MAJEURE
10.1. Force majeure shall exonerate from liability the Party invoking it.
10.2. Force majeure means any external, unpredictable, absolutely invincible and inevitable event for either of the contracting Parties and which prevents them from fulfilling their obligations hereunder.
10.3. The Party invoking force majeure shall have the obligation to notify it to the other party by electronic mail within 72 hours (three working days) from the occurrence of the event, and its confirmation by an electronic document issued by the competent authorities will be communicated within 5 calendar days from the occurrence of the event.
10.4. If the force majeure event extends for more than 30 calendar days from the date of its occurrence, the Parties may jointly agree to continue or not the contractual relations, but without the request and/or application of damages. The obligations due by the date of occurrence of the force majeure event shall be met by the Parties.
11. TRANSFER OF LIABILITY AND ASSIGNMENT OF DEBTS
11.1. The Provider shall have the right to transfer to a third party, in whole or in part, its rights and/or obligations hereunder without the consent of the Customer request and without the Customer being entitled to compensations of any kind. The Provider shall ensure that this transfer will not affect the rights acquired by the Customer under this Agreement. The Customer will be notified of the transfer of rights and/or obligations hereunder at least 30 days before it becomes effective.
11.2. The Customer shall not be entitled to transfer the rights and obligations arising from this Agreement without the prior consent of the Provider. If the Provider approves the request for transfer, the provisions of Articles 11.3 and 11.4 will be applied accordingly.
11.3. The transfer of rights and obligations hereunder may be accepted by the Provider only after the full payment by the Customer of all its debts to the Provider until the date of the approval by the Provider of the transfer of responsibility. The request for transfer will not be made less than 30 days after the date of the activation of the Services to be transferred.
11.4. The Customer undertakes to sign the transfer agreement together with the future Customer and, also, the future Customer will sign a new agreement with the Provider.
11.5. By the time of the actual completion of the transfer of liability, the original Customer shall bear all the costs related to the use of the Services.
11.6. The Provider reserves the right to assign at any time during the term of the Agreement its claims against the Customer to third parties without the prior consent of the Customer or without any other prior formality apart from those expressly required by law, if applicable.
12.1. This Agreement contains all agreements between the parties and supersedes any prior understandings or agreements, written or oral, with the Provider or its authorized partners on the subject matter of the Agreement.
12.2. The fact that either party does not insist on strict and exact obligations of the other party, under this Agreement or under the law, will not be construed as a cancellation or a waiver of such right, unless the parties expressly agreed to such waiver. Otherwise, the contracting parties are bound to fulfill their obligations set out in that contractual provision.
13. AMENDMENTS TO THE AGREEMENT
13.1. The Provider reserves the right to amend unilaterally the provisions of this Agreement according to the then applicable Romanian laws.
13.2. The Provider shall notify the Customer of the amendments brought to the Agreement at least 30 days before the date on which the amendments become effective.
13.3. If the Customer proves that the amendments adversely affect it, the Customer will have the option to terminate the Agreement without having to pay the termination costs. The notice of termination shall be sent to the Customer within 15 days from the date of notification sent by the Provider concerning the amendments made, otherwise it will be considered that the Customer has accepted the proposed amendments.
13.4. The Provider shall notify the amendment of the Agreement by any means by which it can be reasonably considered that this notice is brought to the attention of the Customer (e.g.: e-mail, letter, announcements on the Website of the Provider).
14. CUSTOMER DATA
14.2. If the Customer makes a request for Services through the Site, the Customer agrees to provide the following information on the Site: name and surname of the contact person, company name, e-mail address. In this respect, the Customer understands and agrees that in order to be contacted by the representatives of the Provider, the information provided by the Customer must at all times be complete, accurate and actual.
14.3. The Customer also understands and agrees that it shall provide to the Provider the following data for the individual or legal entity subject to be invoiced: name, surname, company name, tax code, personal identification number, registration number with the Trade Register, serial number of identity card/ID/passport, registered office, home address, e-mail address.
14.4. The Customer understands and agrees that it shall have the following rights: right to information, right to access data, right to rectify data, right to object, right not to be subject to an individual decision and the right to go to court. In order to exercise these rights the Customer may address a written, dated, signed application submitted to the registered office of the Provider mentioned in the preamble of this Agreement.
14.5. The Provider will process personal data during the term of the Agreement and after the termination of the Agreement, regardless of the reason for termination, will turn personal data into anonymized data and will process it for internal statistical purposes during the existence of the company. Within 60 days of the termination of the Agreement, regardless of the reason for termination, the Customer data will be returned electronically or destroyed by the Provider, depending on the Customer's written request to that effect, subject to the payment of all amounts due by the Customer to the Provider. In case that within the 60 day term mentioned above, the Customer does not request the return or destruction of the Customer Data, the Provider reserves the right to destroy the Data without the right to compensation/indemnification for the Customer. If the Customer requests the return of the Data in a format different from the one in which the Data is stored in the systems of the Provider, the latter reserves the right to charge the Customer the equivalent amount for the effort of the Provider to return the Data in the format requested by the Customer – in this respect, the Provider will notify the Customer an offer on the estimated costs and they will be invoiced only after obtaining the Customer's approval. In this respect, the Customer Data erasure will be carried out by methods ensuring its permanent erasure.
15. COMPLAINTS AND DISPUTES
15.1. For any complaint, including in connection with the issued invoices, the Customer will address the Complaints Department of the Provider at the e-mail address: email@example.com as follows:
Within 15 days of the date of the occurrence of the reason (except for reasons related to the issued invoices) for which the complaint is filed;
Within 10 calendar days from the date of the issue of the invoice. At the end of this period, the invoiced amount will be considered as being irrevocably accepted for payment.
15.2. Any dispute arising in connection with this Agreement, including any breach thereof, shall be settled amicably.
15.3. If the parties fail to reach an amicable settlement, the dispute will be settled by the competent courts in Bucharest.
15.4. The Agreement shall be governed by the applicable laws in Romania