1.2. In case of any discrepancies between the provisions of these ToU and the provisions of the Agreement, the provisions of the Agreement will prevail.
1.3. The subject matter of the Agreement is to allow the Customer to use the Roivenue Service in the manner and under the conditions stipulated in the Agreement and the ToU.
1.4. The definitions contained in these ToU are relevant both for the ToU and the Agreement.
2.1. ”Roivenue Service”: The Roivenue Service means the service provided by the Provider which is run and available mainly at the internet address (URL): app.roivenue.com, or at another internet adress or addresses according to the consideration of the Provider. The Roivenue Service is the analytical tool for marketing performance monitoring and optimization.
2.2. “Authorized User” means any natural person acting on behalf of the Customer, mainly the employee of the Customer or another natural person cooperating with the Customer, who has been registered to access the Roivenue Service and has agreed with the Agreement and these ToU.
2.3. “User Account” means an account allowing the Authorized User to access and use the Roivenue Service. The creation of the User Account is a condition for the access of the Authorized Used to the Roivenue Service.
2.4. “Incoming Data” means the data and information (but not the personal data in the sense of Act No. 101/2000 Coll., on the Protection of Personal Data) related to the marketing activities of the Customer, which are provided by the Customer to the Provider for the purpose of processing these Incoming Data by the Roivenue Service. The Incoming Data include both the data coming directly from the Customer, and the data coming from the analytical and marketing platforms (Google Analytics, Facebook.com, AdWords etc.) used by the Customer.
2.5. “Outgoing Data” means the result of the processing of the Incoming Data by the Roivenue Service, in the form of an on-line display, Excel table, graph or in another form, or just data.
2.6. “Implementation”: The Roivenue Service requires the Implementation. The Implementation means the process of connecting the Customer to the Roivenue Service and gaining the opportunity to process the Incoming Data of the Customer by the Roivenue Service. During the Implementation, the Incoming Data of the Customer are modified or prepared, possibly also with the help of the Measure Code, in such a way, so that these Incoming Data can be processed by the Roivenue Service. The Implementation is performed by the Customer, the Provider or the Partner.
2.7. „Pilot Phase“: In case that the Agreement provides for it, the Live Operation might start with the so called Pilot Phase of the Roivenue Service („Pilot Phase“). The functionality of the Roivenue Service in the Pilot Phase is the same as in the Live Operation. The Pilot Phase might be provided under specific conditions which are in more detail specified in the Agreement.
2.8. “Termination of the Pilot Phase”: After the termination of the Pilot Phase agreed in the Agreement the use of the Roivenue Service will automatically continue in the Live Operation. Anytime during the Pilot Phase, the Customer has the right to notify the Provider that the Customer is not interested in further using the Roivenue Service in the Live Operation, in which case the Agreement is automatically terminated on the last day of the Pilot Phase agreed in the Agreement.
2.9. “Live Operation” means the period of time starting on the day of the commencement of the Live Operation as stipulated in the Agreement and ending together with the termination of the Duration of the Agreement. During the Live Operation, the Incoming Data are processed by the Roivenue Service and the Outgoing data are provided to the Customer.
2.10. “Measure Code” means the special software application developed and owned by the Provider which is used to gain the Incoming Data of the Customer in such a way that these Incoming Data can be processed by the Roivenue Service. The Measure Code might be installed in the system of the Customer, in the system of the Provider or in the system of a third party. The Incoming Data are stored in the storage of the Customer, in the storage of the Provider or in the storage of a third party.
2.11. “Partner” means a contractual partner of the Provider who is authorized to perform the Implementation and to provide the Customer with consulting related to the Roivenue Service.
2.12. “Duration of the Agreement” means the period of time for which the use of the Roivenue Service by the Customer is agreed in the Agreement.
3. Rights and Obligations of the Customer
3.1. Creation and Use of the User Account. In order to access the Roivenue Service, the Authorized User must register to create the User Account. During the registration process, the Authorized User will be required to provide certain information and to establish a password, or authorize himself by a third party (OAuth) The Authorized User agrees to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. The Provider reserves the right to suspend or terminate the User Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. The Authorized User is responsible for safeguarding his/her password. The Authorized User is responsible for any activities performed under the User Account, whether or not such activities were authorized by the Authorized User. The Authorized User is obliged to immediately notify the Provider of any unauthorized use of the User Account.
3.2. Purpose of Use of the Roivenue Service. The Customer may access and use the Roivenue Service solely for its internal business purposes and may not resell the Roivenue Service to third parties.
3.3. Use of the Outgoing Data. The Customer may use the Outgoing Data without any limitation and may provide them to their agents or Parters.
3.4. Age Limitation. The Roivenue Service is intended solely for persons who are 18 or older. Any access to, or use of the Roivenue Service by anyone under 18 is expressly prohibited. By accessing or using the Roivenue Service the Customer or the Authorized User represent and warrant that they are 18 or older.
3.5. No Personal Data. The Customer undertakes not to provide to the Provider, within the provision of the Incoming Data or by any other means, any personal data pursuant to the Act No. 101/2000 Coll., on the Protection of Personal Data. The data provided to the Provider must be anonymised, so that it is not possible to identify a particular person. If the Customer breaches the above obligations, the Provider has the right to withdraw from the Agreement, immediately delete all the data of the Customer and demand from the Customer a compensation for any incurred damages, including the compensation for a fine imposed by the Personal Data Protection Authority.
3.6. Banned Activities of the Customer. The Customer shall not attempt to interfere with or disrupt the Roivenue Service. The Customer shall not allow access to or use of the Roivenue Service by anyone other than Authorized Users. The Customer shall not copy, modify, create derivative works from or distribute any portion of the Roivenue Service. The Customer agrees not to disassemble, decompile or reverse engineer the Roivenue Service or the software used for the provision of the Roivenue Service including the Measure Code or allow any third party to do so. The Customer acknowledges and agrees that the Provider does not monitor or police communications or data transmitted through the Roivenue Service and that the Provider shall not be responsible for the content of any such communications or transmissions. The Customer shall use the Roivenue Service exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. The Customer shall not use the Roivenue Service to transmit any unsolicited commercial communications in violation of applicable laws, or to send or store via the Roivenue Service (i) materials or information which may violate Intellectual Property Rights or other proprietary rights of third parties, or which have been unlawfully obtained or (ii) materials containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs.
3.7. Cooperation and Assistance. As a condition to the Provider’s obligations hereunder, the Customer shall at all times provide the Provider with good faith cooperation, mainly the Customer will provide to the Provider: (a) access to information that may be reasonably required by the Provider in order to provide the Roivenue Service, mainly the acces to the automatic loading of the Incoming Data (the possibility of such access differs according to the type of the system), (b) accesss to the analytical and marketing platforms (Google Analytics, Facebook.com, AdWords etc.), (c) personnel assistance, as may be reasonably requested by the Provider from time to time, (d) at its option, provide the Provider with feedback, comments, and suggestions for improvements relating to the Roivenue Service (“Feedback”), and (e) e-mail address to which the Provider will send notifications on the changes or updates of the Roivenue Service; the Customer is obliged to appoint a responsible person who will process such notifications. The Customer acknowledges that in case that the Provider loses access to the loading of the Incoming Data, it will not be possible to provide the Outgoing Data and the Roivenue Service. Correction of the loading of the Incoming Data after the access was lost might be performed only based on the agreement between the Provider and the Customer.
3.8. Marketing Support. For the period of the Duration of the Agreement and also for the period after the termination of the Agreement, the Customer grants the Provider, free of any charge, the right to publish the corporate name, brand and logo of the Customer and the information that the Customer is the client of the Provider, in the internet and other presentations and marketing materials of the Provider. In case the parties would agree so, the Customer may participate in the customer case studies organized by the Provider.
3.9. Enforcement. The Customer is responsible for all activity occurring under its use and under its Authorized Users use of the Roivenue Service. The Customer shall ensure that all Authorized Users comply with this Agreement. The Customer shall promptly notify the Provider of any suspected or alleged violation of the Agreement including any unauthorized use of any password or account or any other known or suspected breach of security. The Customer shall cooperate with the Provider with respect to: (a) any investigation by the Provider of any suspected or alleged violation of the Agreement and (b) any action by the Provider to enforce the Agreement. The Provider may suspend or terminate any Authorized User’s access to the Roivenue Service upon notice to the Customer in the event that the Provider reasonably determines that such Authorized User has violated the Agreement.
3.10. Telecommunications and Internet Services. The Customer acknowledges and agrees that the use of the Roivenue Service by the Customer and by the Customer‘s Authorized Users is dependent upon access to telecommunications and Internet services. The minimum internet bandwidth required for the use of the Roivenue Service is 1 Mbit/sec. The Customer shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Roivenue Service, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. The Provider shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
3.11. Software and Hardware. The Customer acknowledges and agrees that in order to be able to use the Roivenue Service, the Customer must at its own cost and responsibility install and maintain the necessary software and hardware, such as a standard Web browser (e.g. Internet Explorer version 11 or higher), MS Excel version 2013 or higher etc.
3.12. Customers Questions. Questions related to the functionality of the Roivenue Service are to be sent to the e-mail address firstname.lastname@example.org or the Customer contacts the relevant Partner.
4. Rights and Obligations of the Provider
4.1. Modification of the System. The Provider reserves the right to modify, update, change, discontinue or terminate the Roivenue Service or the Measure Code. Should enhancements made to the Roivenue Service or to the Measure Code require or entail additional software or hardware resources on the part of the Customer in order for the Customer to use the full scope or functionality, then the Provider shall notify the Customer hereof in sufficient advance.
4.2. Customization of the System. In case of a Customer request for a system customization, which would be in line with the overall concept of the system, the Provider will consider such a request and potentially include it in the next system update.
4.3. Modification of the ToU. The Provider has the right to modify these ToU, in such a way that the Provider will post the modified text of the ToU on its internet page and will send to the Customer a written notification containing also the modified text of the ToU. By continuing to access or use the Roivenue Service after the Provider has sent such notification to the Customer, the Customer indicates that it agrees to be bound by the modified ToU and the modified text of the ToU will thus become a part of the Agreement. If the Customer does not agree with the modified text of the ToU, the Customer has the right to refuse the proposed modifications solely by means of terminating the Agreement by a written notice to the Provider with a notice period of minimum 1 month.
4.4. Modification of the Incoming Data. The quality of the results provided by the Roivenue Service depends on the quality and condition of the Incoming Data. In order to ensure the quality of the provided service, the Roivenue Service may automatically detect and correct some of the repeating mistakes of the loaded Incoming Data.
4.5. Protection and Archiving of the Data. The Provider shall maintain appropriate protection and archival procedures to store the Incoming and Outgoing Data. The data of the Customer shall be stored separated from the data of the other customers of the Provider. The provider will monitor systems operation and respond promptly to any disruption in operations. All Customer data hosted on the Provider’s servers is backed up every 24 hours, with back-ups being stored at a different location. The Provider is not responsible for a loss, damage, change or breach of confidentiality of the Incoming and Outgoing Data caused by any third party. In the event of any loss or corruption of the Customer’s data, the Provider will use its commercially reasonable efforts to restore the lost or corrupted data from the latest backup of such data, and the Provider will not be obliged to perform any other steps or cooperation towards the Customer. The Provider reserves the right to establish or modify its general practices and limits relating to storage of the Customer’s data.
4.6. Responsibility for the Quality of the Customer’s Data. The Provider is not responsible for the mistakes or imperfections of the Incoming or Outgoing Data, in case that these mistakes or imperfections are caused by lack of cooperation of the Customer, by improper Incoming Data, by the fact that the Customer modified the Measure Code or due to other circumstances not caused by the Provider. The Provider is not responsible for any damages on the side of the Customer that arised in connection with the use of the Roivenue Service or with the decisions made by the Customer based on the results of the use of the Roivenue Service.
4.7. Industry Benchmarks. The Customer may agree, in case that it is provided for it in the Agreement, to include its data in the Industry Benchmarks. In such a case the Customer will have access to the reports from the Industry Benchmarks. Within the Industry Benchmarks the data of the Customer will be anonymised and will be used collectively for individual industries or for all the customers of the Provider. The Provider may publish the data from the Industry Benchmarks only if they comprise data of more subjects and share them among its customers.
4.8. Marketing Channels. The Roivenue Service works with various marketing channels used by the customers of the Provider. In the Agreement the Customer chooses appropriate marketing channels, from the channels offered by the Provider. During the Live Operation the Customer may choose additional marketing channels from the channels offered by the Provider. The Roivenue Service processes Marketing Channels with a monthly spend above 200 EUR.
5.1. Types of Payments. The payments related to the use of the Roivenue Service are specified in the Agreement. The Customer usually pays the following payments:
- payment for the Implementation; this payment might be charged also by the Partner if it is provided for by the Agreement,
- payment for the Pilot Phase,
- payment for the Live Operation of the Roivenue Service,
- payment for consulting; this payment might be charged also by the Partner if it is provided for by the Agreement,
- payment for the correction of the loading of the Incoming Data (see Article 3.7. of the ToU).
5.2. General Principles. The payments and charging for the Roivenue Service are governed by the following general principles:
- Payments for the Roivenue Service are always paid in advance, at least for a period of one month, or for a longer period agreed in the Agreement.
- Payments for the Roivenue Service are paid based on invoices issued by the Provider or by the Partner and the invoices are due withing 14 days of the day they are issued.
- The invoices will be sent to the Customer electronically through a web interface or to the e-mail address stated in the Agreement.
- All prices mentioned in the ToU or the Agreement are stated without VAT. The invoiced sums will be increased by the appropriate VAT.
- In case that the Customer is late with the payment of any invoice, the Customer is obliged to pay a late payment interest of 0.1% per each day of the delay.
- In case that the Customer is late with the payment of any invoice for a period longer that 5 days, the Provider may discontinue or reduce the Customer’s use of the Roivenue Service.
- In case that the Customer is late with the payment of any invoice for a period longer that 1 month, the Provider may withdraw from the Agreement.
- The Customer is obliged to pay the payments for the Pilot Phase and for the Live Operation of the Roivenue Service as from the day of the commencement of the Live Operation agreed in the Agreement, including the case that due to reasons on the side of the Customer or a third party it was not possible to ensure the complete Implementation before the agreed day of commencement of the Live Operation.
- The Customer is obliged to pay the payments for the Pilot Phase and for the Live Operation of the Roivenue Service also for the period during which the Roivenue Service has not provided the Outgoing Data to the Customer due to lack of cooperation on the side of the Customer, or due to the fact that the Roivenue Service has not received the Customer’s Incoming Data due to a reason on the side of the Customer or a third party.
6. Intellectual Property Rights
6.1. No Licence to the Roivenue Service. No rights or licences to the Roivenue Service are being transferred to the Customer.
6.2. Licence to the Feedback. The Customer grants to the Provider a non-exclusive, teritorially and temporally unlimited and free-of-charge licence and consent to use, modify and incorporate the Feedback (see Article 3.7. of the ToU) into the Roivenue Service, including the right of the Provider to freely use and sell such modified Roivenue Service, without any rights or claims arising on the side of the Customer.
6.3. Licence to the Measure Code. The Provider grants to the Customer a non-exclusive and teritorially unlimited licence and consent to use the Measure Code for the purpose of using the Roivenue Service by the Customer, solely for the period of the Duration of the Agreement.
6.4. Licence to the Data. The Customer grants to the Provider a non-exclusive, teritorially and temporally unlimited and free-of-charge licence and consent to use and modify the Incoming and Outgoing Data of the Customer. The Provider may freely use the Incoming and Outgoing Data of the Customer even after the termination of the Agreement, but solely under the condition of anonymisation of these data, so that it is not possible to identify the Customer based on these data.
7. Confidential Information
7.1. Definitions and Exclusions. By virtue of this Agreement, the parties may have access to each other’s confidential information (“Confidential Information”). The Provider’s Confidential Information includes, without limitation, all the commercial and technical information relating to the Roivenue Service and the Measure Code, methods, processes and know-how relating to the Roivenue Service, and any software used in relation to the Roivenue Service, whether in source or executable code, documentation, nonpublic financial information, pricing other than pricing publicly disclosed on the Provider’s website, business plans, techniques, methods, processes, and the results of any performance tests of the Roivenue Service. The Customer’s Confidential Information includes, without limitation, the access details to the User Accounts and to the Roivenue Service and the Incoming Data. Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; or (c) is independently developed by the receiving party, which independent development can be shown by written evidence.
7.2. Obligation of Confidentiality. During the Duration of the Agreement and for a period of three years after termination of the Agreement, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement. The Provider may disclose the Customer’s Confidential Information to a Partner, who has a contractual relation with the Customer. Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed in violation of this Agreement, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. Confidential Information may be disclosed as required by any governmental agency if such obligation ensues from the relevant law, provided that before disclosing such information the disclosing party provides the non-disclosing party with an advance notice.
8. Functionality of the System
8.1. Warranty for the Functionality. The Provider warrants that during the Duration of the Agreement: (a) the Roivenue Service shall perform materially in accordance with the description contained in the Agreement and the ToU, (b) the Provider shall excercise maximum effort to ensure that the Roivenue Service does not contain any harmful software viruses.
8.2. Planned Outages of the System. The Provider will notify the Customer in at least 24 hours advance on the planned outages of the Roivenue Service, which are necessary for the maintenance and upgrades of the system. Such outages of the System are not considered as breach of the Agreement by the Provider.
8.3. Notifications of Defects. The Customer is obliged to immediately notify the Provider of any defects or imperfections in the functionality of the Roivenue Service.
8.4. Disclaimer of Responsibility of the Provider. The Provider shall have no warranty and liability for defects of the Roivenue Service which have already been existent at the commencement of the Agreement in case that The Provider is not accountable for such defect. The Provider shall have no warranty and liability for any claims, losses, or damage caused by errors or omissions in any information (including the Incoming Data) provided to the Provider by the Customer, in connection with the Roivenue Service or any actions taken by the Provider at the Customer’s direction. The Provider shall have no warranty and liability for any claims, losses or damages arising out of or in connection with the use by the Customer or by any Authorized User of any third-party products, services, software or websites. Except as expressly provided in Article 9.1. of the ToU, the Provider disclaims any warranty and liability for any damages on the side of the Customer arising out of or in connection with the use of the Roivenue Service or in connection with the decisions made by the Customer based on the data from the Roivenue Service.
9. Duration and Termination of the Agreement
9.1. Duration of the Agreement. The Agreement is concuded for an indenfinite period of time.
9.2. Termination of the Agreement. The Agreement can be terminated: (a) by mutual agreement of the parties, (b) by a written withdrawal (i.e. immediate termination without a notice period), or (c) by a written notification of any party due to any reason or without a reason, with a notice period of 3 months from the day of the delivery of the termination notification.
9.3. Withdrawal. It is possible to withdraw from the Agreement in the following cases: (a) in cases stipulated by the relevant law (b) in cases stipulated by the Agreement or the ToU, (c) the Provider may withdraw from the Agreement also in case of any breach of the Agreement or the ToU by the Customer, in case that the Provider notified the Customer on the breach in writing but the Customer has not provided a remedy for such breach within 10 days after the receipt of the notification, or (d) in case of insolvency of either party.
10. Rights and Obligations Upon Termination of the Agreement10.1. Termination of the Use of the System. Upon termination of the Agreement, the Customer’s and its Authorized Users’ right to access and use the Roivenue Service and the Measure Code shall immediately terminate, the Provider and its Authorized Users shall immediately cease all use of the Roivenue Service and the Measure Code and shall return to the Provider and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the Provider.
10.2. Deletion of the Data. Any Incoming Data that were loaded to the Roivenue Service, may be automatically deleted, usually at the end of the month following the month in which the Agreement was terminated. In case that the Customer has agreed with the inclusion of its data to the Industry Benchmarks, its Incoming Data will not be deleted and the Provider will continue using these data for the purpose of the Industry Benchmarks. The Provider may freely use any and all of the Outgoing Data after the termination of the Agreement.
10.3. Provision of the Data Back-Up. In case that the Agreement is terminated due to other reason than breach of the Agreement by the Customer, the following clause will apply: In case that the Provider receives, no later than 30 days after the termination of the Agreement, a written request of the Customer, the Provider will provide to the Customer the then-most recent back-up of the Incoming Data of the Customer. The Customer shall pay all reasonable expenses incurred by the Provider in providing the back-up data to the Customer.
10.4. Survival. The provisions of the Agreement and the ToU whose nature allows so, shall survive the termination of the Agreement .
11. Final Provisions
11.1. Governing Law. The Agreement shall be governed by the laws of the Czech Republic, without regard to any conflict of laws rule or provision that would result in the application of the substantive law of any other jurisdiction. Each party agrees to the exclusive jurisdiction of the applicable court in the Czech Republic.
11.2. Assignment. The Customer may not assign or transfer the Agreement, in whole or in part. The Provider may assign or transfer the Agreement to a third person without the consent of the Customer.
11.3. No Exclusivity. The Agreement does not limit either party to sign a similar agreement with a third party in the future.
11.4. No Waiver of Rights. No failure or delay by either party in exercising any right under the Agreement shall constitute a waiver of that right.
11.5. Amendments to the Agreement and the ToU. The Agreement (including the ToU) may be amended only by a written agreement of both parties, or by means stated in the Agreement or the ToU.
11.6. Severability. If any provision of the Agreement is or will be found invalid or unenforceable, that provision will be replaced with a valid and enforceable clause intended to effect the parties’ original intent to the maximum extent permissible, and the remaining provisions of the Agreement shall remain in effect.
11.7. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of events beyond the reasonable control of such party, which may include without limitation storm, flood and other natural disasters, traffic delay, electricity shortage, vandalism, terrorism, sabotage, riots or changes to the law that was valid at the time when the Agreement was signed.
11.8. Entire Agreement. The Agreement constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of the Agreement.
11.9. By signing this ToU and the Agreement, the Customer confirms that the Customer is signing the Agreement in line with its business activities, that the Customer has properly and in detail read the Agreement and the ToU and has understood them, that the Agreement was concluded in accordance with the right and free will of the Customer, unambiguously, understandably and seriously. In witness whereof the Customer has signed the Agreement and these ToU.