Business Terms and Conditions

General Terms

  1. These Business Terms and Conditions of eWay System s.r.o., having its address in Vrane nad Vltavou, Dlouha 383, Zip code 252 46, principal offices in Prague 10, Na Kralovce 31/4, Zip code 101 00, Czech Republic, ID number: 27169 979, VAT number: CZ 271 69 979, filed in the commercial registry of the Municipal Court in Prague, Dept. C, File no. 101630 (the “Provider”) shall apply to the relationship between the Provider and the Client regarding eWay-CRM® (the “Software”)

    A) For eWay-CRM® Free:
    The term “Agreement” as used herein shall refer to the provision of the Software licensing rights (the “License”) as set forth in (i) these Business Terms and Conditions, (ii) the Privacy Policy.

    B) For eWay-CRM® Premium:
    The term “Agreement” as used herein shall refer to the provision of the Software licensing rights (the “License”) as set forth in (i) the Purchase Order; (ii) these Business Terms and Conditions; (iii) the Service Level Agreement; and (iv) Privacy Policy.

  2. The Client is an entity and/or individual that has entered into a contractual relationship with the Provider as a result of a written agreement between the parties, e.g., Purchase Order, and/or the terms accepted as condition for the download and/or installation of the Software.

License and Related Obligations of the Parties

  1. A) For eWay-CRM® Free:
    The License shall be valid for a period of thirty (30) days from the earlier of the date of installation and the date of acceptance of these terms and for only one (1) user of the Software; provided, however, that the License for eWay-CRM Free shall automatically renew at the end of each thirty (30) period until cancelled by either party for any reason or for no reason.

    B) For eWay-CRM® Premium:
    The Provider hereby issues to the Client a non-exclusive license to use the Software under the terms of Purchase Order and this Business Terms and Conditions and the Client shall accept this non-exclusive license and agree to pay the License Fee. The Client is entitled to use the Software worldwide and, in the event of purchasing a Lifetime License, for the lifetime of the product (if not terminated earlier) which shall be construed to mean an indefinite period limited only by the functionality of the Software and its “moral” lifetime. For a Monthly Subscription license, the above shall apply for the duration that the Client satisfies its obligations set forth in Purchase Order, this Business Terms and Conditions, the Service Level Agreement and Privacy Policy in a timely manner. The type of license (Lifetime vs Monthly) depends on the terms accepted by the Client and Provider as set forth in the Purchase Order.

  2. The Client is authorized to use the Software solely for its own needs and/or for presentation to customers. The Client is authorized to install and/or use the Software on individual devices exclusively in the number of purchased and paid user licenses according the terms accepted by the Provider. In this context, the Client may acquire copies of the Software solely for the purpose of protecting its archives or for replacing rightfully acquired Software that has been lost, destroyed or otherwise corrupted. The Client is not authorized to, without the consent of the Provider, in any manner to alter the Software or its code, make the Software and/or its code available to third parties, translate to other programming languages, incorporate into any other software product (or work), grant other legal or natural persons authorization to use the Software, transfer or assign the license to a third party, reproduce and distribute the Software, rent, lease and dispose of it in a manner other than specifically permitted herein.
  3. For eWay-CRM® Premium:
    The Provider will begin to fulfil its obligations set forth in the Purchase Order upon satisfaction of the Client’s payment of the amounts due.
  4. The Client is obliged to cooperate with the Provider so that Provider may fulfil its requirements. A breach by the Client of its duty in this Paragraph shall be considered a serious breach. The Client is required to communicate with the Provider and disclose requested information, allow the Provider access (on-site or remotely) to the server and individual stations (computers), provide necessary information for system set-up and to take any additional steps requested by Provider.

Cloud / Data Hosting

  1. The following shall apply to data resulting and/or arising from the Client’s use of the Software, e.g., e-mail message, journal entry, metadata, etc. (“Client Data”) in case it is stored on servers of the Provider’s hosting partner:

    1. Server Location: Client Data is stored on the servers (collectively, “Server”) maintained by Cloud4com, a.s., Czech Republic, European Union (www.cloud4com.com). At the Provider’s sole discretion, and with notice to the Client, the Provider may migrate and store Client Data on any Server owned and/or maintained by any entity as permitted by the laws of Czech Republic and/or by the laws of any sovereign in which Provider is permitted to operate.
    2. Capacity: Client Data stored on the Server shall be limited to 10 GB for eWay-CRM® Premium or to 200 MB for eWay-CRM® Free. If the Client Data exceeds the permissible limit, then the Client must delete some or all of the Client Data or request the Provider to increase the capacity in excess of the Server Capacity for an additional fee based upon current prices.
    3. Backup: Provider shall only be responsible for keeping a backup of Client Data for a period of 2 weeks. At the end of 2 weeks, Provider automatically deletes the backup of Client Data and, for security purposes, such Client Data is no longer recoverable.
    4. Legality of Client Data: Client warrants to Provider, and further, agrees to indemnify Provider for costs incurred as a result of allegation(s) that the Client Data violates any criminal, civil and/or regulatory laws or rules in the Client’s jurisdiction and/or Provider’s jurisdiction. This indemnification shall include, but not be limited to, all direct and indirect costs incurred by Provider and third-parties, e.g., attorney’s fees, costs associated with responding to subpoenas, etc., as well as actual damages, fines and restitution. In the event that the Client has a question about the legality of Client Data in any one or more jurisdictions, Client shall be responsible for making this determination. Client is also responsible for keeping only the data of Data Subjects that meet GDPR requirements.
    5. Third Party Request: If a third-party requests records related to the Client, including but not limited to Client Data (“Third Party Request”), the Provider will make commercially reasonable efforts, to the extent allowed by law, to promptly notify Client of receipt of such Third-Party Request. Unless Provider is obligated by law, Client is solely responsible for responding to Third Party Requests via its own access to information. Client will seek to obtain the information required to respond to Third Party Requests and will contact Provider only if it cannot obtain such information despite diligent efforts. Absent written permission from Client, Provider shall only comply with Third Party Requests if required by law. All costs, including attorney’s fees, associated with the Provider’s fulfillment of its obligations and legal duties shall be paid by the Client.

Price and Payment Terms

  1. A) For eWay-CRM® Free:
    The License is provided to the Client for free for the specified period.

    B) For eWay-CRM® Premium:
    The prices for the License Fee, Professional Services and System Support are listed in the current pricelist unless otherwise specified in the Purchase Order.

    Invoices will be issued per the terms set in the Agreement. All invoices shall be paid within 14 days from the date of issue. For automatic, recurring payments through PayPal / Credit Card, the Provider will automatically charge the agreed-upon amount prior to the new Subscription Period.

    Invoices for System Support hours in excess of the number of included hours for a Subscription Period shall be issued on the last day of the month in which the services were provided. The Provider shall issue an invoice identifying the payment terms and the Provider’s account information to which payments shall be made.

    To the extent that the Client disputes any charges on the invoice, then the Client may return the invoice without payment within 5 business days. The Client must state the reasons for which the invoice was returned. The Provider may, according to the nature of the issue, either correct the invoice and issue a new one or take no action at all. At the sole discretion of the Provider, and per the terms stated herein, the Provider’s issuance of a new invoice renders the previous invoice invalid. A new payment deadline is set from the day the Client is presented with a corrected or newly-issued invoice. If the claim was not duly made or filed on time or the Provider declines to issue a new invoice, then the Client shall be deemed to have accepted the charges shown on the original invoice and committed to pay the amount shown. The Client’s obligation is fulfilled when payment in full is credited to the Provider’s account.

  2. The current prices are listed in the pricelist unless otherwise specified in the Purchase Order. The Provider reserves the right to change prices at any time and new prices will become binding for the Client 30 days following notification of new prices provided the Client does not reject them within this 30-day period. If the Client rejects the price change, both Parties are entitled to withdraw from the Agreement which shall expire three months after receipt of the withdrawal notice.
  3. A) For eWay-CRM® Premium Lifetime:
    The System Support Fee is calculated as 18% multiplied by the current price of all purchased licenses based on the current pricelist posted on the Provider´s web page. In case of changes to the license price, the System Support Fee will change accordingly for the next Subscription Period. The System Support Fee for new user(s) is prorated based upon the time remaining until the end of the currently running Subscription Period.

    B) For eWay-CRM® Premium Monthly Subscription:
    The Agreement regarding the provision of the System Support is for an indefinite period. In case the Client purchases a Monthly Subscription of the Software, the contract on the provision of the System Support is for the same period as the Software License. The System Support is renewed automatically with the frequency specified in the Purchase Order – see II. B. Subscription Period. Any Party can cancel the automatic renewal of the contract regarding System Support per the terms and conditions of the Agreement.

  4. In the event that the Client fails to satisfy a monetary obligation per the Agreement, an additional fee of 0.05% multiplied by the outstanding amount will be charged for each day of the delay. This penalty is in addition to and shall not diminish any other right to compensation for any damage.
  5. The Provider is a payer of the European Union Value added tax (VAT). Prices listed in the Agreement exclude VAT. The Provider will charge VAT in compliance with applicable laws and regulations and the final prices will include VAT.

Data Processing and Clients’ Consents

  1. Data processing is set forth in this paragraph and in the Privacy Policy (posted at www.eway-crm.com). These obligations of the Parties are based upon the 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). These obligations include:

    1. The relevant party is solely responsible for obtaining consents of the data subjects and passing such consents along with the personal data to the other party in cases where such consent is required. For purposes of the Software, the Client is responsible for obtaining consents of the data subjects whose personal data is being processed by the Provider.
    2. The purpose of the personal data processing is to allow the Client to properly use the Software and/or for any other reason agreed between the Provider and the Client. No party will use the personal data other than for the agreed-upon reasons. No party will process sensitive data (as GDPR defines it).
    3. Personal data that is being processed by the Distributor and the personal data that is being processed by the Client will include at a minimum – first name, last name, VAT number, address, email address, telephone number, bank account number and industry.
    4. Personal data may only be processed while the Agreement is valid; provided, however, that upon the termination of the Agreement, the parties must still follow all duties with regards to security and data protection.
    5. The party representing the data controller (“Controller”) is obliged to make sure that:
      1. Personal data is processed in compliance of GDPR and related legislation;
      2. The data subjects received all the information required by articles 13 and 14 of the GDPR.
    6. The party representing the data processor (“Processor”) is obliged as follows:
      1. to refrain from engaging another Processor without prior specific or general written authorization of the Controller. In the case of general written authorization, the Processor shall inform the controller of any intended changes concerning the addition or replacement of other processors, thereby giving the controller the opportunity to object to such changes. The Provider can engage other Processors as set forth in the Privacy Policy.
      2. to ensure that personal data is only processed based upon documented instructions from the controller (this provision includes the transfer of personal data to a third country or an international organization);
      3. to ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
      4. to take all measures required by Article 32 (GDPR) regarding personal data protection;
      5. taking into account the nature of the processing, to assist the Controller by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Controller’s obligation to respond to requests for exercising the data subject’s rights;
      6. to ensure that automated data processing (if there is any) may only be operated by authorized persons with access limited to fulfill their job duties with the Provider;
      7. to ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality; and
      8. to make available to the Controller all information necessary to demonstrate compliance with the obligations set forth in this paragraph, and further, to allow for and contribute to audits conducted by the Controller or another auditor mandated by the Controller.
    7. Both parties are obliged to:
      1. implement appropriate technical and organizational measures in such a manner that data processing will meet the requirements of GDPR and ensure the protection of the rights of the data subject and to be able to demonstrate that processing is performed in accordance with GDPR. Those measures shall be reviewed and updated where necessary.
      2. within 72 hours of receiving notice of a personal data breach, notify the appropriate supervisory authority in accordance with Article 55 (GDPR), unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons. Each party must inform the other party about all important matters that affect the fulfilment of the Agreement;
      3. maintain confidentiality of the personal information and security enhancements at requested level of protection even if the Agreement is terminated;
      4. proceed in accordance with other requirements of the GDPR and the Czech data protection law by following the general data protection principles and subject data rights, fulfilling information duties, and not disseminating personal data to third persons without necessary consents.
  2. To the extent Client uses the Professional Email function in the Marketing module, Client acknowledges and understands that Client will need to accept additional terms and conditions as required by the third-party vendor providing this service (Commerce Media s.r.o. (www.emailkampane.cz)). Client understands and agrees that to properly use the Professional E-mail function, the necessary data of the Client’s customers will be automatically uploaded (provided) to the third-party vendor that performs the bulk email delivery. Client is also responsible for obtaining email consents to meet all the legal requirements (i.e. GDPR).
  3. To identify companies and related information, the Software includes within the Companies module the ability to utilize the Company Name or Company Identification Number. Providers uses ARES (wwwinfo.mfcr.cz/ares/ares_es.html.cz), ORSR (www.orsr.sk) and VIES (ec.europa.eu/taxation customs/vies/vieshome.do) to obtain such information. Provider cannot guaranty the availability, accuracy, completeness, reliability or timeliness of such information.
  4. The Client agrees to allow its name to be used as a reference in promotional materials and during Provider events.
  5. The Client agrees that the Provider can send to the Client from time to time up-to date instructions on how to use eWay-CRM®.

Acknowledgement of Delivery

  1. Upon Software installation, the Software contacts its server database.

    A) For eWay-CRM® installed on the Server of the hosting partner of the Provider:
    If the server database is run on the server of a hosting partner of the Provider, then the successful connection of the PC and server component is considered a successful fulfilment of Provider’s obligations.

    B) For eWay-CRM® installed on the Client’s Server:
    If the server component is installed on Client’s server, then the Client is required to confirm the functionality of the Software by signing a document entitled “Acknowledgement of Delivery” which Provider will submit to Client. The Client shall submit its comments, the inclusion of which allow the Client to confirm on the Acknowledgement of Delivery that the Provider has fulfilled its obligations, within 5 business days of receipt of the Acknowledgement of Delivery. If the Client does not respond and does not submit any comments by the deadline of five business days of receipt of the Acknowledgment of Delivery, it shall be construed that the related performance of the Provider has been accepted without defects.

Guarantee

  1. Provider shall not be held responsible for any damage to the customer of the Client or to the Client or to any other third party, and further, the Client shall indemnify Provider for any costs, including attorney’s fees, incurred by Provider.

Confidentiality

  1. The Parties agree that all information obtained in the course of the business relationship arising from the Agreement shall be considered confidential and trade secrets of the other Party. Both parties undertake to preserve the confidentiality of all information concerning the business and operations of the other Party, including information about customers, products, processes and plans, pricing strategies, etc. This does not apply to information or facts that are publicly accessible or that may become so otherwise than as a result of breach of contract, or with the exception of instances where such communication of protected information comes as a result of fulfilling obligations imposed by law, or when the Party concerned has granted prior written and explicit consent to do so.

Agreement Termination

  1. Upon proper notice being given, the Agreement may be terminated by the parties for the reasons and subject to the limitations set forth below.
  2. The Client is entitled to withdraw from the Agreement for reasons including, but not limited to:

    1. the Provider interrupts the Software installation process or the provision of services without due cause and does not remedy the issue within a reasonable period of time upon being notified by the Client;
    2. justified insolvency proceedings were brought against the Provider;
    3. the Software installation and the provision of services will be delayed for more than 30 days; and/or
    4. the Software repeatedly presents serious defects preventing the Client from using the Software for the purposes documented in the Software documentation.
  3. The Provider is entitled to withdraw from any or all provisions in the Agreement, in its sole discretion, for any reason including but not limited to:

    1. the Client is more than 21 days in arrears for any amounts owed to the Provider (If the Client is in arrears with payment for provided licenses and/or services or parts thereof for a period longer than 7 days, the Provider may limit services or suspend functionality.);
    2. if the Client fails to collaborate with the Provider;
    3. if the Client violates any terms of the Agreement and this fact is not remedied within a reasonable period of time after written notice is given to the Client by the Provider; and/or
    4. if the Client uploads illegal data onto eWay-CRM® hosted on the Provider’s servers or on servers of the hosting partner of the Provider.

    In all such cases, the Provider shall not be held responsible for any damage to the customer of the Client or to the Client or to any other third party, and further, the Client shall indemnify Provider for any costs, including attorney’s fees, incurred by Provider.

  4. For eWay-CRM® Free:
    The Provider may withdraw from the Agreement if the Provider does not detect any interaction by the Client with the Software Server database (i.e. creates, edits or deletes an item) for 6 months. In such case, the Provider may delete the Client’s data with NO BACKUP. Client understands the risk and takes any steps necessary to protect his/her Client Data.
  5. In the event of withdrawal from the Agreement, the contractual relationship expires upon receipt of the notice of withdrawal and Provider will not return any amounts paid. In case the Client used to use eWay-CRM® Premium Lifetime License, the Client is obliged to uninstall the Software.
  6. The Agreement termination does not affect rights and duties that should (by their nature) remain valid even if the Agreement is cancelled, especially:

    1. client has to pay fines in case he/she violates the licensing terms;
    2. keep the confidentiality;
    3. follow the data protecting rules.
  7. For eWay-CRM® Premium Lifetime:

    In the event of termination of the Agreement due to a violation of the Agreement by the Client, and the Provider has not yet fulfilled his obligations, the Client will be required to pay the Provider for the work performed to date.
  8. For eWay-CRM® Premium:
    In the event of termination of the Agreement due to a violation of the Agreement by the Client, and the Provider has not yet fulfilled his obligations, the Client will be required to pay the Provider for the work performed to date.

Sanctions

  1. Notwithstanding any other penalties set forth in this Agreement, the Client acknowledges and agrees that the following violations shall result in the additional penalties if such violations are not rectified within a reasonable period of time after notice is given (a) activating licenses in excess of the number of licenses ordered, an amount equal to USD 2,500 multiplied by the number of licenses activated in excess of the number of licenses ordered. (b) in the amount of USD 10,000, in the event that the Client copies a Software server component (i.e. part of the Software installed on the server of the Client, Provider or a third party).

Other Provisions

  1. Unless otherwise set forth herein, the contractual relationship, rights and obligations of both Parties shall be governed by the relevant provisions of the laws of the Czech Republic. In the event of a dispute, the parties agree that such a dispute shall be settled exclusively by the courts of the Czech Republic, according to its legislation and with the fact that the court with territorial jurisdiction shall be the general court of the Provider.
  2. Documents may be delivered in person, by post or email to the address listed herein. In the event of a change in contact information, the concerned Party shall give written notice to the other Party without delay. Documents shall be deemed to have been received within seven days after sending even if either of the Parties rejects or otherwise precludes delivery. Shipments to the Provider shall be delivered primarily to the email address of the Provider [email protected] and shipments to the Client shall be delivered to the email address of the Client, which has been conveyed to the Provider.
  3. This Agreement constitutes the entire agreement between the Parties, on the subject matter hereof, and supersedes all prior understandings between the parties, written or oral.
  4. Subject to the terms therein, the Purchase Order, the Service Legal Agreement and Privacy Policy may only be modified in written form and can be sent by email at the address provided in the contact header. The Business Terms and Conditions are posted at www.eway-crm.com. While the Provider will make best efforts to notify the Client of any proposed changes to the Business Terms and Conditions at least 30 days prior to such changes going into effect, the Provider may modify the Business Terms and Conditions without notification to the Client, and further, the Client agrees to be bound by such modifications.
  5. The invalidity of one or more provisions does not invalidate the contract as a whole. In the event that any provision of the contract or terms and conditions is or becomes invalid or unenforceable, the Parties shall undertake to replace it with a new provision that is nearest to it in content.