SAMU Software as a Service – General Terms and Conditions
This document was last updated 12 February, 2016.
1.1. The contractual partner is Atoll Solution Kft. (Capital Square Office Building, Váci út 76., 1133 Budapest, Hungary) and will be referred as Atoll and Service Provider in the Agreement.
1.2. The Software subject to the present agreement, its name and any documentation thereof are Service Provider’s own developments (as Developer). Service Provider is the rights owner of any copyrights relating thereto, including both personal and financial rights. The Software, its name and any documentation relating thereto are covered by copyright protection, it shall only be used pursuant to the terms and conditions and to the extent set forth in the present Agreement.
1.3. Please read the present agreement carefully, because if you use the Software in any way, you as a Customer agree to the terms and conditions of the present agreement.
1.4. In case you do not agree to the terms and conditions of the present agreement, you shall not use the Software.
The Service in general
2.1. Service Provider provides the use of SAMU enterprise architecture tool and related best practice configuration package (business parameters) – hereinafter: Software – in accordance with the present General Terms and Conditions (“GTC”) for the term set forth in the present agreement on a rented, highly secure server, by a cloud based service and in an individually set user Workspace with update, maintenance and phone and online support necessary for its use and access via internet.
Use of the TRIAL version
3.1. Before you decide to use the Software, You have the opportunity to try the TRIAL version provided by Service Provider for this purpose. Service Provider provides a 30-day test period.
3.2. To order the TRIAL version, you shall submit the name, e-mail address and phone number of the contact person, name of the company and the country. You shall also make a statement that you provided real and correct data. You give your consent by requesting the TRIAL version to Service Provider to contact you directly by phone or via email in connection with the use of the Software.
3.3. In order to use the TRIAL version, you shall expressly agree to the present general terms and conditions electronically.
3.4. You shall receive an e-mail confirmation on the order of the TRIAL version immediately, but latest within eight hours. You shall confirm your registration by replying the e-mail. Following the confirmation, Service Provider performs the registration and creates your unique user account with the data you provided. The Service Provider informs you thereof and sends the log in details (URL, user account and password) and you can start using the TRIAL version.
3.5. By registering for the TRIAL you have the opportunity to try the Software; however, you do not have any obligation for payment.
3.6. In case you decide to further use the Software for a monthly fee, you may order this Service from the Service Provider under “Purchase”.
3.7. In case you decide that you do not wish to further use the Software, then your user account is deactivated after 30 days. Please note that if you do not order the Software, all data that you saved in the TRIAL version will be deleted by the Service Provider after 30 days. Therefore, you will lose all such data if you did not save or export them from the system.
Purchase and use of the Service
4.1. In case you wish to purchase the Software, you shall submit the data set forth in Section 3.2 and the data of the person you wish to provide with administrator rights (name, contact details), provide the number of users and indicate the chosen package under “Purchase”.
4.2. You shall also state when ordering whether you wish to conclude the agreement for a definite period of 12 months or an indefinite period.
4.3. You acknowledge that you shall pay the fee by ordering the Software.
4.4. Following the receipt of the order, Service Provider shall create the unique environment within 2 business days that is able to manage the number of users according to Customer’s needs, makes unique settings for the client and sends the log in credentials to the person with administrator rights (URL, user name and password). Customer can start using the Software with these credentials.
4.5. The person with administration rights shall set and distribute access parameters to the number of users indicated in the order.
4.6. You may change to an advanced package during the term of the agreement and request access for more users than the number indicated. In this case, you shall pay the difference in the service fee from the date of change to the proportional part of the period covered by the fee to Service Provider’s account.
4.7. Customer gives its consent to Service Provider to refer to Customer’s name as a reference in its online or offline materials.
Use of the Software, data assets and back up files
5.1. Customer’s employee with administrator rights allocates unique accesses as indicated in the order to Customer’s other employees. Customer may request access for more users from Service Provider for an additional fee.
5.2. Customer fills the Software with its own data. The data content created in this way shall be the exclusive property of Customer.
5.3. Service Provider creates back up files for the whole database on a daily basis, for the sole purpose of restoring the Customer’s data assets in case data loss of Customer occurs for any reason, or if Customer enters incorrect data.
5.4. Customer may export all or part of the data of the database in standard XML format anytime continuously or periodically.
5.5. If the Agreement is terminated, it is not possible to upload further data via the user interface or manage uploaded data. Customer may, however, access its account on a read-only manner and export uploaded data within 30 days from the termination of the agreement.
Obligations of Customer
6.1. Customer shall provide correct and complete data during registration that is necessary for providing the service and give written notice of any changes in this customer data immediately. This particularly applies to the address, billing details and e-mail address.
6.2. Customer shall be responsible for meeting technical pre-requisites (see System requirements) and the connection between the servers of Customer and Service Provider. The Service can only be used with live Internet connection. Customer shall be responsible for providing network connection from its own work station to the “exit point” of the Service, i.e. the router of the Service Provider’s data centre.
6.3. Customer shall use such appropriate security measures for its system and programs that ensure that the security level and accessibility of the system will not be lower.
6.4. Customer shall store its password and log in details safely and keep them in secret. Customer shall be obliged to pay the fee of such services that were used or ordered by a third party with the log in credentials of Customer.
6.5. Customer shall immediately notify Service Provider if it finds out that an unauthorised third party has access to its log in credentials. Additionally, Customer shall be obliged to immediately change its password, if it is possible that a third party could obtain or access it.
6.6. Customer shall be responsible for exporting its data from the Software on a regular basis depending on their significance, so that they can be restored in case of a data loss.
6.7. Customer shall inform the Service Provider of any obvious defect and provide appropriate support during its remedy. Customer shall give notice of program errors in writing only, describing the circumstances in detail in order to enable the reproduction of the error experienced. Service Provider shall be exclusively entitled to ascertain and remedy program errors.
6.8. Correction of programming error is part of service and not subject to further payment. Service Provider gives a proposal to Customer for professional services to address the issue of individual needs out of the scope of Software programming error.
6.9. Customer shall refrain from any unlawful action relating to the subject of the present Agreement and from the breach of any regulatory requirements and contractual provisions.
7.1. Customer shall pay the service fee based on the price list of Service Provider. The prices indicated are net prices; Service Provider additionally invoices value added tax according to applicable laws currently in force.
7.2. Service Provider preserves the right to set discount or promotional prices from time to time, or apply unique pricing in case of special orders.
7.3. Service Provider preserves the right to change fees. In case of ongoing, fix term orders, the fee applicable at the time of the order shall be invoiced. In case of orders for indefinite period, the fee applicable to the given invoicing period shall be invoiced, and the fee applicable on the start date of the actual invoicing period shall be payable for the next period.
7.4. The invoicing period shall be 12 months for both definite and indefinite orders.
7.5. The remuneration of the service is defined as a monthly fee; however, user shall pay the fee in one amount for the whole invoicing period, 12 months, in advance.
7.6. Following the creation of the user account, Service Provider sends its invoice of the remuneration for the ordered service; Customer shall settle the same by bank transfer to Service Provider’s account within fifteen days. If Customer does not meet the deadline for payment, Service Provider deactivates the user account until the remuneration of the service arrives to its account.
7.7. If the remuneration of the service does not arrive to Service Provider’s account within 90 days from the payment deadline, the agreement is terminated and Customer shall be liable to pay a penalty for non- performance to Service Provider. The Service Provider will delete the Customer’s Workspace as well as the data.
8.1. Service Provider grants to Customer a non-exclusive, non-transferable licence on the Software subject to the present agreement, limited to the term of the agreement.
8.2. Customer’s rights are limited to the use of the Software and additional services set forth in sections 13.1.-13.2.of the present GTC.
8.3. Customer is entitled to use the Software according to the details provided when the order was submitted and for the term specified in the agreement. Customer is entitled to access the Workspace provided by the Software in the number of subscribed users.
8.4. Customer shall not grant use or give access to the Software to any third party without the written consent of Service Provider. Customer shall take all measures that can be reasonably expected in order to prevent third party access to the Software, particularly to prevent unauthorised use of third parties. Customer shall be exclusively liable for the safe storage of the data necessary for the use of the Software. Customer shall take all necessary measures in order to prevent unauthorised use of the Software either by any employee of Customer, any of its organisational units or third parties, and shall immediately inform Service Provider of any such event.
8.5. Service Provider modifies the Customer’s name in the Software if Customer provides proof that its name or company form has changed due to amendment in the Companies Register, change of company form, or ceases to exist with a legal successor.
8.6. Service Provider reserves all rights relating to the Software.
8.7. Any unauthorised use of the Software and any documentation relating thereto shall be prohibited. Customer shall not be entitled to copy, change or modify the Software and any documentation relating thereto in any way, or to decrypt the source code or use it in for any purpose that is different from as defined in the present GTC.
8.8. The name of Software is protected by copyrights, therefore, any unauthorised use thereof shall be prohibited.
8.9. The erasure, cancellation or modification of any mark indicating property or copyrights in the Software shall be prohibited.
8.10. Customer acknowledges that it constitutes a serious breach of the agreement and Service Provider shall terminate the agreement immediately, seek damages and punitive damages if Customer gives access to the use of the Software to any third party without the consent of Service Provider or fails the comply with the prohibitions set forth in present GTC.
Term and Termination of the Agreement
9.1. The term of the software use agreement is a definite period of 12 months or indefinite, depending on the Customer’s decision.
9.2. Customer shall be entitled to unilaterally extend the term of the agreement concluded for a definite period of 12 months or amend it as an indefinite term agreement.
9.3. Customer may terminate the agreement anytime with effect from the last day of the month. In this case, Service Provider shall repay the fee for the remaining months proportionally by way of bank transfer to the Customer’s bank account.
9.4. Service Provider may terminate the Agreement with immediate effect, if the Customer commits a serious breach of the present GTC. Serious breach includes – in particular – the breach of the provisions regarding copyrights and the extent of use. Service Provider does not pay fees back in such cases.
9.5. If the service fee is not paid on time, the agreement terminates on the 90th day following the last day of the payment deadline not met, except if the Customer pays the service fee in the meantime.
9.6. Customer’s right of exploitation ceases with the termination of the agreement. The Software can only be accessed from the Customer’s account in order to save or export the data in a read-only mode. The user account is deleted after 30 days following the termination of the agreement.
9.7. Data uploaded to the Software by Customer is deleted after 60 days following the termination of the agreement.
Liability of Customer
10.1. Customer is liable to pay damages and punitive damages for any breach of the provisions of the present GTC.
10.2. Customer is liable to pay punitive damages in the amount equivalent to 12 months service fee to Service Provider in case of breach of the provisions under section VIII on software licence of the present GTC and for any unauthorised use resulting thereof. In addition, Service Provider is entitled to seek damages for any harm suffered due to the unauthorised use.
10.3. Customer shall be liable to pay a penalty equal to month service fee if it does not pay the service fee.
Liability of Service Provider.
11.1. Service Provider warrants that the Software is legal and will function in line with its product specification.
11.2. Service Provider does not guarantee that the Software will entirely satisfy all needs of Customer.
11.3. Service Provider does not guarantee, due to the complex nature of software, that the Software will operate without any defects or errors and that it is compatible with all device or software configurations. In order to ensure safe operation, it is essential that Customer comply with all instructions and advice before and during use, and consider the details and properties of its systems and internet connection and the software it wishes to use, and ask for the opinion of Service Provider if necessary. It is essential that the Customer satisfies the pre-requisites of the Software described in the product specification on all computers the Software is accessed on.
11.4. Service Provider shall not undertake any liability for loss of information or data and any other direct or indirect loss (including, but not limited to profit loss, interruption of business activity or other damage resulting from financial loss), which result from the use or the fact that it could not use the Software, even if Service Provide was informed of the possibility that such losses may occur.
11.5. Service Provider shall not undertake any liability for the unauthorised access of third parties to the user account of Customer and modifies, enters copies or exports data from the database of Customer. In case it is possible that a third party got the log in credentials of Customer or accessed its account without authorisation, Service Provider shall be entitled to suspend the service until it makes sure that the assumption was not true or it can eliminate the danger. Service Provider shall not have any responsibility of liability for damages to Customer for such suspension of the service.
11.6. Service Provider guarantees 95% availability and continuous operation of the service. It shall inform users of any planned suspensions due to maintenance in advance. In spite of the prudent conduct of Service Provider, unexpected service intervals or intervals due to unexpected maintenance may occur. In such case Service Provider makes all available efforts to remedy the errors and reason of service interval. Service Provider shall not be responsible for damages resulting from service intervals or temporary unavailability of service.
11.7. Customer shall have sole responsibility for the lawfulness, correctness, entirety, accuracy and use of data entered to the Software. Service Provider shall not be liable to Customer for any damage resulting from incorrect, illegal or incorrectly entered data.
11.8. Neither Service Provider, nor any of its employees or agents shall be responsible for such damages, losses and costs (including, but not limited to any profit loss, indirect, collateral or consequential loss), which result from entering or using www.atollgroup.eu, samucloud.com, www.samucloud.com, samucloud.eu, www.samucloud.eu (hereinafter: websites). Customer may exclusively use the websites at its own risk and accepts that Service Provider excludes any and all liability for financial and non financial damages occurring in the course of using the website, except for damages caused deliberately or as a result of gross negligence or crime, and injuries and contract breaches resulting in harm to life, health and the integrity of the human body.
11.9. Service Provider excludes any and all liability for the conduct of the users’ at the websites. Customer shall be exclusively and entirely responsible for its own conduct, Service Provider fully cooperates with the authorities in such cases.
11.11. Service Provider shall not be responsible for any accidental operational and substantial errors or deficiencies resulting directly or indirectly from the use of the websites; it shall not be responsible for any errors resulting from incorrect data.
11.12. With regard to the global nature of the Internet, Customer undertakes that it will have regard to local laws as well during the use of the websites. In case any activity with regard to the use of the websites is considered illegal by the laws of country of Customer, Customer shall have sole responsibility for such use.
11.13. Customer acknowledges that Service Provider limits its liability for damages to the extent of the amount equal to one month service fee.
12.1. Service Provider shall be responsible for ensuring the safe storage and preservation of the data entered to the Software by Customer at the economically reasonable level of caution, security and technology.
12.2. Service Provider shall not inspect the data of Customer, shall not attempt to access them, and shall not disclose them to any third party unless authorization is received by the Customer. Following the termination of the agreement, Service Provider shall destroy the data entered by Customer pursuant to the provisions of the present GTC.
Support, Complaint Handling
13.1. Service Provider shall provide support by phone from 10 a.m. to 16 p.m. Central European Time (UTC +1) at its customer service for questions concerning the installation and use of the Software.
13.2. Service Provider shall respond to questions via –email concerning the installation and use of the Software within 2 business days.
13.3. Please submit your complaints regarding the Software or the websites to the customer service e-mail address of Service Provider. Service Provider shall investigate all complaints and use its best endeavours to respond to them on the merits as soon as possible, but latest within 30 business days.
14.1. The Contracting Parties hereto shall maintain as confidential, all information, documentation and data which they receive from each other within the scope of this contractual relationship and only use the same in the scope of their own business activity. The Contracting Parties shall not disclose such confidential information to third parties in any form and shall not make them available to the public.
14.2. If any of the provisions of the present agreement is rendered null and void, it shall not prejudice the remaining provisions of the agreement.
14.3. The licensing of the Software and the present general terms and conditions solely apply to contracts concluded with persons pursuing economic activities who are not considered as consumers.
14.4. The present Agreement shall be governed by Hungarian law. The Civil Code and other applicable laws and regulations to any issues not regulated herein.
14.5. The parties state that they wish to settle any dispute in an amicable way.
14.6. The parties agree to submit any disputes to the jurisdiction of the Central District Court of Pest or the Metropolitan Court of Justice, Hungary, depending on their competence.