Version 0.2
valid from 31.10.2019
1. TERMS AND CONDITIONS
1.1 These Terms of Use (“Terms of Use”) govern the terms and conditions of use of the Fentrica website and the platform (the “Platform”) on its subdomains and the services provided.
1.2 The User may only use the Platform and the services offered therein after accepting the Terms of Use.
1.3 Acceptance of the Terms of Use creates a legally binding User Agreement between the User and Fentrica. These Terms of Use shall govern the relationship between the User and Fentrica.
2. TERMS
2.1. the Agreement - the “Terms of Use” and the “Privacy Policy” and any other agreements between the User and Fentrica, if any, to the extent applicable to the parties.
2.2. Fentrica - Operator of the Platform, with legal name Fentrica OÜ, address at Siduri 3, Tallinn 11313, commercial register code 14685154, e-mail hi@fentrica.com.
2.3. Customer - A person engaged in business or professional activity who has entered into a Contract with Fentrica.
2.4. Customer Account - the profile associated with the Customer for the use of the Platform, used to identify the Customer, to access the Services by Users associated with the Customer, and to modify and save settings.
2.5. User Agreement - the agreement between the Customer and Fentrica for the use of the Platform, entered into by the Customer by accepting the User Terms.
2.6. Platform means the integrated web-based software solution accessible through the fentrica.com and larva.io subdomains.
2.7. Website - the website located on the www.fentrica.com domain.
2.8. Content - Data, works and other materials (video, photo, image, diagram, text, etc.) uploaded by Users. Content may also include personal data processed by the Client and/or Users on the Platform.
2.9. Services - Any services provided to the Customer under the Service Agreement.
2.10. “User” means a natural person who uses the Platform and the Services on behalf of and with the authority of the Customer.
2.11. “Third Party” means any natural or legal person, public authority, agency or body, other than the data subject, controller, processor and persons who may process personal data under the direct authority of a controller or processor.
2.12 “Customer Data” means the data about the Customer that Fentrica uses to provide the Service to the Customer, including, but not limited to, the personal data of individual Customers, Customer Representatives, Users and other natural persons.
2.13 “Data Processing” means the automated or non-automated operations performed on Customer Data.
2.14 “Data Controller” means the data controller of Customer Data.
3. GENERAL TERMS
3.1 The Customer must thoroughly familiarise themselves with the Terms of Use and the Privacy Policy prior to entering into the Agreement and must confirm that they have done so to Fentrica upon request. The Client must ensure that its Users have also thoroughly familiarised themselves with the Terms of Use and the Privacy Policy.
3.2 It is the responsibility of the Client and the Users to ensure that the Platform is suitable for their needs and complies with the requirements arising from the laws applicable to them.
3.3 To use the functionality of the Platform, the Customer must create a Customer Account.
3.4. The Platform may only be used to the extent, for the purposes and for the purposes for which the functionality of the Platform is designed and made available to Customers and Users or for which the same type of technology is commonly used. Such use shall be in accordance with the Terms of Use, the advice and guidance available in the Platform Support Environment and in accordance with good practice and legislation.
3.5 The Content may also include personal data processed by the Client and/or Users on the Platform. Therefore, these Terms of Use also include the data processing agreement between the Client as data controller and Fentrica as processor required under Article 28 of the GDPR.
3.6. Neither the Client nor the User may.
The Client or the User shall not use the Platform to commit or incite any offence;
Use the Platform to the extent to which he or she does not agree to the Terms of Use;
send any promotional emails, mass mailings or other Content through the Platform in breach of the requirements set out in the Terms of Use;
use the Platform in any other unlawful manner;
use the Services for the purpose of monitoring their availability or functionality or for any other competitive purpose.
3.7 Fentrica will do everything that could reasonably be expected of it to ensure that the Platform and the Services are available to the Customer, operate securely, reflect the latest technological developments and are convenient for the Customer to use. The Customer acknowledges and agrees that Fentrica has the right to improve and enhance the technical design, security, availability and functionality of the Platform at any time. Fentrica and the Customer may agree in the Specific Conditions the criteria for the level of service of the Platform in terms of reliability, availability and security.
3.8 The Customer acknowledges and agrees that Fentrica may:
3.8.1. impose restrictions on the use of certain parts or functionality of the Platform (for example, the amount of data required to use the Services, the speed at which Content can be uploaded, the amount of Content that can be stored, etc.);
3.8.2. suspend or terminate the offer of the Platform and close any part of it. In the latter case, Fentrica shall submit a request to the Customer to terminate the Agreement under the conditions set out in the Terms of Use;
3.8.3. refuse access to the Platform to any User;
4. CONCLUSION OF THE CONTRACT
4.1 The Contract is deemed to have been concluded upon the Client’s first logging into the Platform and accepting the Terms of Use and confirming that he/she has read the Privacy Policy; or the Client and Fentrica have signed a Contract document containing a reference to the Terms of Use and the Privacy Policy.
4.2 The Client must thoroughly familiarise themselves with the Terms of Use and the Privacy Policy prior to entering into the Agreement and must confirm that they have done so to Fentrica upon request. The Client must ensure that its Users have also thoroughly familiarised themselves with the Terms of Use and the Privacy Policy.
4.3 By entering into the Agreement, the Client or its representative confirms that:
all the information provided by him/her and the representations made are accurate, correct, complete and relevant;
the person is a natural person of full legal capacity (at least 18 years of age);
he/she has all the rights and authority to enter into the Agreement and to use the Platform and the Services on behalf of the Customer;
4.4 The aforementioned confirmations are presumed to be true and correct and Fentrica is not obliged to, but may, verify them.
4.5 Fentrica shall have the right to refuse to enter into an Agreement with any person, even if that person has accepted the Terms of Use.
4.6 The Terms and Conditions of Use and the Privacy Policy shall remain available to the Client and Users on the Website.
5. TERMS AND CONDITIONS OF THE CONTRACT
5.1 The Terms of Use form an integral part of the Agreement. Fentrica may impose additional terms and conditions for each Service (such as Privacy Policy, price packages and user manuals), which shall be deemed to form an integral part of the Terms of Use.
5.2 In addition to the Terms of Use, the Client and Fentrica may also agree on Specific Terms. The Special Conditions must be in a form that is at least capable of being reproduced in writing and shall also be considered an integral part of the Agreement.
5.3 If the Client or the User does not agree to the Terms of Use or any modification thereof, the Client or the User shall not be entitled to use the Platform and the Services and shall immediately terminate the same.
5.4 Lara has the right to unilaterally modify the Terms of Use at any time by publishing on the Website the new version of the Terms of Use with the modifications accordingly. Fentrica may modify the Terms of Use in the following cases:
a change in the applicable legislation or its interpretation;
A court decision or administrative act binding Fentrica to amend the Terms of Use;
A modification of the existing Service, the termination of the offer or the introduction of a new Service;
significant changes in the technical architecture or functionality of the Platform;
Suggestions and complaints from Customers and Users;
the need to enhance data protection or other security measures;
changes to Fentrica’s business model, organisation and/or mandate;
Technological developments that improve the user-friendliness, quality and security of the Platform and the Services;
other unforeseeable circumstances in which changes to the Terms of Use are reasonably justified or which Fentrica could not take into account when establishing the Terms of Use.
5.5. Fentrica shall notify the Client of any changes to the Terms of Use on the Website or by means of a separate communication via the Client’s contact details at least 14 days before their entry into force. If the Customer does not agree to the said amendments, the Customer shall have the right to terminate the Agreement within 14 days prior to the entry into force of the amendments. If the Customer continues to use the Platform and the Services after the expiry of the said 14-day period, the Customer shall be deemed to have accepted the amendments to the Terms of Use.
6. CUSTOMER ACCOUNT AND USER ACCOUNT
6.1 To use the basic functionality of the Platform, it is necessary to have a Client Account and a User Account. If a natural person is associated with more than one Client, a separate User Account will be created for that natural person under each Client Account.
6.2 User Accounts are managed by the Customer, i.e. the Customer has the right to create, modify and deactivate User Accounts and User data at its own discretion. Lara has the right and the obligation to create a new User Account only if the Customer does not have access to its User Account and no User is the legal representative of the Customer. The legal representative of the Customer shall be deemed to be the member of the Board of Directors listed on the Customer’s registration card.
6.3 Each time the User logs into the Platform through his/her Account, the User confirms that:
all the information provided and confirmations made by him/her are accurate, correct, complete and relevant;
He/she is a natural person of full legal capacity (at least 18 years of age);
He/she has all rights and authority to use the Platform and the Services on behalf of the Client;
6.4. the Customer or User must immediately notify Fentrica:
misuse of their account;
The User must notify the User of any abuse of his/her password by the User;
the loss of his/her password or theft of his/her password or theft of any other property of the User or theft of his/her password or theft of any other property of the User or of any other property of the User or of any other person;
6.5 In the case referred to in clause 6.4 of the Terms of Use, Fentrica will take all reasonable steps to renew the password, protect the account or delete it.
6.6 The Client Account and User Account shall remain valid indefinitely until deleted or until the expiry of the Agreement. If the Client has requested Fentrica to delete the Client Account, Fentrica will treat this as termination of the Agreement by the Client.
7. SUBSCRIPTION
7.1 Fentrica shall be entitled to set fees for the use of the Platform by publishing the relevant price packages and price list on the Website or by a separate notice via the Customer’s contact details. The Customer must select the appropriate fee package from these to use the Platform.
7.2 Payment under the Pricing Package shall be made on a periodic prepayment basis, i.e. the Client shall pay for the use of the Platform in advance for each subsequent period (usually a calendar month).
7.3 An invoice or payment request will be submitted to the Customer before the end of each payment period. The Customer must make the payment by the date stated on the invoice or payment request.
7.4 All fees are shown exclusive of any taxes that Fentrica may charge, if applicable.
7.5 If the Customer is in default of payment for a period of 2 weeks or more, Fentrica shall have the right to restrict the Customer’s access to the Platform and refuse to provide the Services. In this case, Lara shall also be entitled to charge a fee for the period during which it applies the aforementioned restrictions to the Customer. In the event of non-compliance with the payment obligation, Fentrica shall notify the Customer of the proposed restrictions at the Customer’s e-mail address at least 2 times with an interval of at least 2 working days.
7.6 The advance payment made will not be refunded, including if:
The Customer has not used the Platform during the prepaid period or has used the Platform only partially;
The Customer changes the Platform tariff package;
The Customer unilaterally terminates the Agreement on the basis of the Terms of Use or by law, without Fentrica being in breach of the Agreement;
Fentrica unilaterally terminates the Agreement on the basis of the Terms of Use or the law.
7.7 Fentrica reserves the right to amend the Price List for the Services;
7.8 The Price List may provide for discounts;
8. CONTENTS. DATA PROCESSING AGREEMENT
8.1 Fentrica provides the Customer with the Content hosting and maintenance service through the Platform. The Client decides which Content, including Personal Data, it wishes to process on the Platform, and whether it wishes to process it. As such, Fentrica processes the personal data contained in the Content on behalf of the Client solely for the purpose of providing the Platform and the Services and acts as a processor of such personal data, while the Client acts as a controller of such personal data.
8.2 At any time, other than during the demo version (which should not contain any real data, including personal data), or during installation, Fentrical will not have access to the Content without a request from the Client (e.g. for client support). Users will only have access to Content made available to them by the Customer through the Platform.
The categories of data subjects whose personal data contained in the Content may be processed by the Client may include, but are not limited to, [identification data, contact data, communication data, data related to the use of the Fentrica Platform and the Services]. The categories of personal data that the Client may process in the Content may include, inter alia: [identification data, contact data, communication data, data related to the use of the Fentrica Platform and the Services].
8.4 The Client and Fentrica wish to duly comply with all of their respective obligations based on 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 (General Data Protection Regulation or GDPR) and any other relevant applicable data protection rules (together the Data Protection Legislation).
8.5 For the purposes of these Terms of Use, the terms “controller”, “processor”, “personal data”, “data subject”, “personal data breach” shall have the meaning given in the GDPR. “Sub-processor” means another processor engaged by Fentrica to process personal data contained in the Content.
8.6 The Customer, as the Data Controller, is fully responsible for all personal data processed by it through the Platform and the Services. The Customer confirms that its personal data processing practices are in full compliance with the Data Protection Legislation, including that it has a legal basis for processing the personal data contained in the Content as set out herein and that it has regularly informed the data subjects of the processing. When the User uploads Content to the Platform, the User must ensure its accuracy, correctness, integrity, relevance and compliance with the Agreement, good practice and law.
8.7 Fentrica will process the personal data contained in the Content only on the basis of the Client’s lawful documented instructions and for the purposes of providing the Platform and the Services, except where required by Data Protection Legislation. In such cases, Fentrica will inform the Client in advance of such need, unless the law prohibits the provision of such information; ensure that the persons who are authorised to process the personal data contained in the Content have assumed a duty of confidentiality.
8.8 Fentrica will implement appropriate technical and organisational security measures taking into account (i) the state of the art, (ii) the cost of implementation, (iii) the nature, scope, context and purposes of the processing, and (iv) the risks borne by the data subject. Such security measures include, inter alia, access control. In the choice of measures, Fentrica expects that the Platform and the Services will be used in accordance with them, which should not involve the processing of any special categories of personal data.
8.9 Fentrica will promptly notify the Customer if it receives a request from a data subject in relation to his/her personal data in the Customer Content and will allow the Customer to respond. Fentrica shall not respond to a Data Subject’s request without the Customer’s prior written consent. Taking into account the nature of the processing, Fentrica will assist the Client to the extent possible through appropriate technical and organisational measures to fulfil the Client’s obligation to respond to the data subject’s request in accordance with the Data Protection Legislation.
8.10. The Client authorises Fentrica to use the following categories of sub-processors: web hosting service providers; management and storage providers; email service providers; customer relationship management and feedback service providers; payment service providers;
8.11. A full list of sub-processors will be available on request.
8.12. Fentrica will inform the Customer of any planned changes to the addition or change of other categories of Sub-processors. The Customer may object to Fentrica’s use of a new category of Subcontractors by notifying Fentrica without undue delay within 10 Working Days of receipt of Fentrica’s notification. In the event that the Customer objects to a new category of sub-contractors, Fentrica will use reasonable efforts to provide the Customer with the Platform and Services without such category of sub-contractors. If this is not possible, the Customer may terminate the Agreement. Fentrica will impose the same data protection obligations on Sub-processors as set out herein. In the event that a Sub-processor fails to comply with its own data protection obligations, Fentrica shall be liable to the Customer for the performance of the Sub-processor’s obligations.
8.13. Fentrica and its sub-processors may only transfer personal data outside the EU if they have a legal basis to do so.
8.14. Fentrica shall notify the Client by email without undue delay after becoming aware of a personal data breach and shall reasonably cooperate with the Client as a result of the personal data breach. In such a case, the Customer may use the information provided by Fentrica regarding the personal data breach only to ensure and/or demonstrate its compliance with the Data Protection Legislation. The Client shall keep such information confidential, unless it is the Client’s own confidential information or unless such information is required to be disclosed pursuant to any applicable legislation.
8.15. Users may not upload Content to the Platform that contains viruses or computer programs and files that damage or otherwise interrupt the normal operation of the Platform or that are stored on the computers of Fentrica or the User and interrupt or damage their normal operation. The Customer is responsible for ensuring that this is done.
8.16. The Client grants to Fentrica the rights necessary for the Content (including a non-exclusive licence in respect of any Content protected by intellectual property rights) and confirms that it has the right to do so.
9. INTELLECTUAL PROPERTY
9.1 The Platform, the Website and any parts and elements thereof (including databases and software, trade names, trademarks, trade secrets, domain names, etc.) are and may be protected by intellectual property rights owned by Fentrica, its employees or its partners.
9.2 During the term of the Agreement, Fentrica authorises the Client and the Users to use the functionality of the Platform for their own internal needs, in accordance with the terms of the Agreement, for the normal purposes for which the Platform is intended. Fentrica does not grant any other licences or rights to the Client or the User, and the Client or the User does not acquire any intellectual property rights in the Platform or the Website.
9.3 Neither the User nor the Client may modify, copy, reproduce, distribute, process, translate, extract, transmit, incorporate into other databases or make available to the public or otherwise use the Platform, the Website or any of their components without the prior written consent of Fentrica, nor may the User or the Client otherwise use any intellectual property rights arising in respect of the Platform or the Website. Neither the Client nor the User shall be entitled to grant sublicences for the use of the Platform, the Website or their components or to create new intellectual property objects on the basis thereof.
10. SUPPORT, MAINTENANCE AND DEVELOPMENT SERVICES
10.1 Fentrica will continuously update the mechanisms underlying the operation of the Platform in order to provide high quality Services to Clients and Users. In order to achieve this, Fentrica may from time to time modify the Platform and its components, as well as the requirements for the hardware and software necessary to use the Platform and the Services provided through it. Fentrica will notify the Customer and Users of any significant changes a reasonable time before they come into effect, taking into account the likely impact of the change on the Customers and Users.
10.2 Fentrica may temporarily suspend access to the Platform if this is necessary for the purpose of modification, maintenance or renewal of the Platform, due to replacement, modification or maintenance work carried out by third parties or in other cases resulting from legislation or decisions of competent authorities. Fentrica will notify Customers and Users of regular maintenance work at least 2 working days in advance via the Platform.
10.3 In the event of errors or any other functional disruption in the Platform, which results in the use of the Platform being hindered, Fentrica shall make all reasonable efforts to rectify such disruption as soon as possible, but no later than 48 hours from the receipt of the error report. In the case of minor malfunctions, Fentrica may also remedy such malfunctions later than 48 hours from the receipt of the error report. In such a case, Fentrica shall inform the Customer thereof.
10.4 To communicate with the Helpdesk, the User can write to support@fentrica.com. The helpdesk is available on weekdays from 9:00 to 17:00 Estonian time without additional charge, unless otherwise agreed in the Contract.
10.5 Fentrica will endeavour to respond to all questions received by Customer Support within a reasonable time, but does not guarantee that questions will be answered within a certain time or that questions will receive a satisfactory response. Requests from Users in relation to their rights under the GDPR will be dealt with in accordance with the time constraints imposed by the GDPR.
11. TERMINATION OF CONTRACT
11.1 The Customer shall have the right to unilaterally terminate the Agreement for any reason at any time by notifying Fentrica by e-mail or via the Platform.
11.2 Lara shall have the right to unilaterally terminate the Contract for any reason by giving the Client 30 days’ notice by e-mail or via the Platform prior to the intended termination date. In such case, the Contract shall be deemed to have terminated 30 days after the date of submission of the notice of termination.
11.3 Lara has the right to unilaterally terminate the Contract immediately, without prior notice, if:
The Client has provided false information about himself;
It becomes known that the person who has used the Platform, the Services or the Client Account on behalf of the Client does not have the right of representation to act on behalf of the Client;
the Customer has been declared bankrupt or is being wound up, or is the subject of a compulsory winding-up or liquidation order;
the Customer intentionally or with gross negligence causes damage to the Bank;
for any other reason specified in the Agreement.
12. REMEDIES
12.1 Fentrica shall not be obliged to control the Content uploaded by the Customer and/or the Users on the Platform or the activities of the Users on the Platform. Nor shall Fentrica have any obligation to monitor the activities of the Users and/or the Client, the Content or the data that the Client and/or the User has uploaded to, shared through, cached or stored on the Platform. At the same time, Fentrica has the obligation, under the Information Society Services Act, to inform the competent supervisory authorities of any illegal activity or information provided and to enable the identification of those Users to whom Fentrica provides a data storage service.
12.2 If the Customer breaches the User Agreement or the law, Fentrica has the right to:
Remove the infringing or illegal Content;
If Fentrica has illegal or unlawful Content, Fentrica may remove or delete the infringing Activity or the Content; or
Temporarily restrict the User’s access to the Platform or any part of it, including temporarily closing the User’s and/or the Customer’s account; restrict the User’s access rights.
13. RESPONSIBILITY
13.1 Fentrica provides the Platform “as is”. Fentrica does not make any further promises or commitments to the Customer regarding the specific features available through the Platform, legal compliance, fitness for purpose, reliability, availability or suitability for the Customer’s needs, other than those expressly described in the Terms of Use, unless expressly agreed by the Parties.
13.2 To the fullest extent permitted by applicable law, Fentrica shall only be liable to the extent that it is at fault for its acts or omissions. Fentrica’s aggregate liability (including interest) for all claims arising out of or in connection with a breach of the Agreement shall be limited to twice the Contractual Fee or the actual loss, whichever is less. To the extent permitted by applicable law, Fentrica shall not be liable for any loss of profit, pure economic loss or non-material damage suffered by the Client or the User, or for any other indirect, special, consequential, exemplary or punitive damage. Nor shall Fentrica be liable for any loss or other consequences arising from:
Failure of the Website or the Information System to function on any web browser;
Disputes arising between the Client and the User or between Clients or Users; the validity, performance and legality of transactions made by the Client or User with third parties through the Platform;
the inclusion on the Platform by a Client or User of Content that is not or is not used in accordance with the Agreement, the good practices of the Platform or the law;
Processing of personal data added to the Platform by a Customer or User in breach of applicable Data Protection Legislation;
The management of User Accounts by the Customer, including any offence or breach of the Terms of Use committed through a Customer Account or User Account, whether or not by a person authorised to use the Customer Account or User Account;
changes in legislation and its interpretation, their effects on the business of Clients or Users and the reflection of such changes in the Platform, unless Fentrica is required to do so by law or by a court decision that has become final against Fentrica;
force majeure and other errors or disruptions beyond the control of Fentrica that prevent the Client or Users from using the Platform, the Website and/or the Services (for example, interruptions in the Internet connection, etc.);
faults, damage or inappropriate settings in the Customer’s or User’s equipment for the use of the Platform or the Website; delays, interruptions or malfunctions in the use of the Platform, the Website and/or the Services due to routine maintenance and/or development work;
the processing of data by third parties to whom Fentrica has communicated them with the consent of the Customer or the User, with the exception of sub-processors who process personal data contained in the Content;
if Fentrica becomes aware of an infringement committed or persisting through the Platform, it shall eliminate or block access to it or actively take other measures to stop the infringement or remedy its consequences;
Fentrica’s exercise of legal remedies and the damage caused to the Customer, the User or a third party as a result thereof, unless it is later established that there was no infringement;
Loss of the Client Account or User Account password or unauthorised access to or use of the same by third parties;
faults and malfunctions in the systems of third parties affecting the operation and availability of the Platform and/or the Services.
13.3 The Customer shall indemnify and hold harmless the Company from and against any and all loss or damage suffered by the Company arising out of or in connection with any claim, liability, action, complaint, prosecution, costs, expenses, etc. (including legal fees) arising out of or in connection with the Customer’s breach of its obligations as Data Controller under this Agreement or the Data Protection Legislation.