Last Modified: June 5th, 2019
ACCEPTANCE OF THE AGREEMENT
Please read these Terms and Conditions of Service carefully before registering for a free or chargeable subscription to use the Software and Services offered on this website (as described below) operated by Szymon Dukla of ul. Widokowa 2, 75-900 Koszalin, Poland (the “Company” or “we”).
SCOPE OF THE AGREEMENT
You engage the Company and the Company agrees to provide the Software and Services to you from the date that you complete the online registration form (“Effective Date”) for the term of this Agreement. The Software and Services shall be made available to you via the Internet in accordance with the terms of this Agreement.
Festivo (the “Software”) is a web-based service offering its customers access to i.e. holiday and observance dates as API service.
The services provided under this Agreement are related to task management, and shall be provided either partially or entirely online (the “Services”). The use of the Services requires a computer, and internet access connected through an internet service provider with a web browser. You agree and acknowledge that the Software is entitled to modify, improve or discontinue any of the Services at its sole discretion and without notice to you even if it may result in you being prevented from accessing any information contained in it. Furthermore, you agree and acknowledge that the Software is entitled to provide the Services to you through agents, employees, and subsidiaries of the Company.
The Software is a software as a service product (“SaaS”) as such, the Software’s scope includes user generated content, and online storage. When you use our Software to upload, submit, store, send or receive content (“Customer Data”) you give the company a worldwide license to host, store, reproduce, communicate, and display your Customer Data to carry out our obligations arising from any contracts entered into between you and us and to provide you with the information, products and services that you request from us.
Subject to payment of any fees owed to the Company, you are granted a non-transferable and non-exclusive license for the term of this Agreement to download, run and use the Software and Services on your device for your internal business operations. Disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within the Software or Services is prohibited, as far as this is prohibited by law.
Unless otherwise specified in this Agreement, the Software and Services are provided and may be used by you in conjunction with its existing systems and applications to facilitate your authorised users use of the Software and Services. You may not: (i) lease, loan, resell or otherwise distribute the Software or Services save as permitted in writing by the Company; (ii) use the Software or Services to provide ancillary services related to the Software or Services; or (iii) except as permitted in this Agreement, provide access to or allow use of the Software Services by or on behalf of any third party.
When using the Software or Services, you and authorised users agree to comply with all applicable laws and third-party IPRs. (“IPR) means all copyrights, patents, utility models, trademarks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world.
You further agree not to post, display, perform or otherwise distribute proprietary information which breaches the IPRs of third parties, or which is confidential, defamatory, or inappropriate content. You are solely responsible for any breach of any applicable law relating to the rights of third parties caused by Customer Data provided or transmitted by You or through your device. The burden to show that the Customer Data provided by you does not breach any law or any the rights of third parties is exclusively borne by you. You agree that all logos symbolizing the Company, and all content, designs, and photos posted on the Software’s website by the Company and any and all authorised users and third-parties, are exclusively owned by the Company unless otherwise indicated.
In no event shall the Software or Services be used: (i) to attack, abuse, threaten, defame or otherwise breach the rights of the Company or any other party; (ii) for illegal, fraudulent or deceptive activities or practices; (iii) to transmit proprietary information of authorised users or a third party; (iv) to attempt to introduce viruses or other malicious code; (v) to attempt to obtain unauthorized access to the computer network or user accounts of the Company; (vi) to encourage criminal behaviour; or (vii) to breach any terms of this Agreement. The Company reserves the right, in its sole discretion, to terminate this Agreement and/or block access to use of the Services or Software for any reason, including, without limitation, a complaint received by the Company concerning a breach of this Agreement by you or an authorised user, or of the IPRs of a third party.
Upon expiry of the “Free Trial Period” (also known as "Developer Plan" or "Free Plan") which means the unlimited period starting on the Effective Date and limited by you upgrading your subscription to one of the paid plans, you shall in consideration of the continued use of the Software and Services, pay the Company a subscription fee (“Fee”) for the term of the Agreement.
The Fee shall be charged monthly depending upon the plan chosen by you upon completion of the online registration form. Your plan can be upgraded and/or changed at any time via our website and the Fee will be adjusted accordingly.
All subscriptions will be automatically renewed month by month or year by year, depending on the selected plan. You can request a cancellation by sending an email to [email protected] If you do not cancel before the renewal day, you will be automatically billed for the subsequent billing period.
The Fee payable during the Terms is the price in force on our website at the date and time of your order and on the date of each subsequent invoice thereafter. All Fees are exclusive of sales tax.
The Company is entitled to refuse any order placed by you. If an order is accepted, the Company will confirm acceptance via email.
INVOICING AND PAYMENT
All invoices shall be rendered in US Dollars and shall be payable immediately in full together with any Value Added Tax (if applicable).
All invoices will be available upon generation, and that will happen by 10th of the month following successful Fee payment.
All Fees are payable by credit card. All Fees shall be deducted from your credit card automatically during the term of the Agreement, at the time of ordering and subsequently on each invoice date.
You undertake that all details provided for the purpose of obtaining the Software and Services will be correct and that the credit card details used are your own and that there are sufficient funds or credit facilities to cover the Fee.
Refund Policy: We do not offer refunds. You can try our product for free, with the free account or free trial and decide if you’d like to upgrade to a paid account.
Taxes: You are solely responsible for any applicable state, federal or provincial taxes. Although you may not be charged taxes by us, you agree that you will pay any applicable taxes or fees to your local or state tax agency for any purchases. We are not responsible for collecting, transmitting, or advising on taxes, duties, or other levies by the government regarding your purchases.
All contents of the Service are copyrighted © 2019 Szymon Dukla. All rights reserved.
All IPRs and title to the Software and Services (save to the extent they incorporate any Customer Data or third party owned item) shall remain with the Company and/or its licensors and no interest or ownership in the Services, Software, Company IPRs or otherwise is transferred to you under this Agreement. No right to modify, adapt, or translate the Software or Services or create derivative works from the Software or Services is granted to you. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that you have any right to obtain source code for the software comprised within the Software or Services.
Company content may not be sold, reproduced, or distributed without our written permission. Any third-party trademarks, service marks and logos are the property of their respective owners. Any further rights not specifically granted herein are reserved.
You shall retain sole ownership of all rights, title and interest in and to Customer Data and shall have the sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
You warrant and represent that you shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that access to the Software and Services granted under this Agreement is limited as set out in this Agreement.
The Company may take and maintain technical precautions to protect the Software and Services from improper or unauthorised use, distribution or copying.
Each party agrees to hold all Confidential Information and not to disclose it or otherwise make it available to any person or third party without the prior written consent of the other party. “Confidential Information” means any and all information in whatsoever form relating to the Company or you or uses, or their business, prospective business, finances, technical processes, computer software (both source code and object code), IPRs or finances of the Company or you (as the case may be), or compilations of two or more items of such information, whether or not each individual item is in itself confidential, which comes into a party’s possession by virtue of its entry into this Agreement or provision of the Software or Services, and which the party regards, or could reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from any such information in strict confidence.
All Confidential Information shall be used only for the purposes of this Agreement and shall not be produced, copied, in whole or in part, except as specifically authorized and in conformance with the above-mentioned instructions when necessary for the purposes set forth herein, except to the extent (if any) the recipient of any Confidential Information is required by law to disclose the Confidential Information.
Each party may disclose the Confidential Information of the other party to those of its employees and agents who have a need to know the Confidential Information for the purposes of this Agreement but only if the employee or agent executes a confidentiality undertaking in a form approved by the other party.
The obligations of confidentiality under this Agreement do not extend to information that: (i) was rightfully in the possession of the receiving party before the negotiations leading to this Agreement; (ii) is, or after the day this Agreement is signed, becomes public knowledge (otherwise than as a result of a breach of this Agreement); or (iii) is required by law to be disclosed. Each party shall immediately return all Confidential Information, together with any copies, reproductions or other records thereof in any form upon completion of the Services or Software or termination of this Agreement.
Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.
To the extent that Personal Data is processed on your behalf when you and authorised users use the Software or Services, the parties acknowledge that the Company is a data processor and you are a data controller and the parties shall comply with their respective statutory data protection obligations and the terms of the DPA in relation to such Personal Data.
If a third party alleges infringement of its data protection rights, the Company shall be entitled to take measures necessary to prevent the infringement of a third party’s rights from continuing.
TERM AND TERMINATION OF AGREEMENT
The term of this Agreement commences on the Effective Date and continues on a monthly or annual basis (depending on the plan chosen upon completing the online registration form) until terminated by either party giving written notice at any time, for any reason, to the other.
Festivo reserves the right in its sole discretion, and without any prior notice, to terminate your access to the Service for any or no reason, including your breach of these Terms of Service, the terms and conditions of any service for which you may have registered, or a violation of the rights of another user or the law. You may unsubscribe from any further communication from Festivo at any time by delivering a written notice addressed to [email protected]. You shall be responsible for ensuring delivery of the notice to Festivo.
Upon termination of this Agreement: (i) the Company shall immediately cease providing the Software and Services to you and all licences granted hereunder shall terminate; and (ii) you shall be entitled to request deletion or return of Personal Data as set out in the DPA.
Termination of this Agreement for whatever reason shall not affect the accrued rights of the parties. All clauses which by their nature should continue after termination shall, for the avoidance of doubt, survive the expiration or sooner termination of this Agreement and shall remain in force and effect.
Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose), are hereby excluded to the fullest extent permitted by law. No warranty is made regarding the results of usage of the Software or Services or that the functionality of the Software or Services will meet your requirements or that the Software or Services will operate uninterrupted or error free. You agree that the Company may occasionally remove the Software and Services for indefinite periods of time or cancel the software or Services at any time, without notice. You understand and agree that your use of the Software and Services is entirely at your own risk and that the Services and Software are provided “As Is” and “As Available”.
You warrant and represent that: (i) you have full corporate power and authority to enter into this Agreement and to perform your obligations; (ii) the execution and performance of your obligations under this Agreement does not violate or conflict with the terms of any other agreement to which you are a party and is in accordance with any applicable laws; (iii) you shall respect all applicable laws and regulations, governmental orders and court orders, which relate to this Agreement; and (iv) you rightfully own the necessary user rights, copyrights and ancillary copyrights and permits required for you to fulfil your obligations under this Agreement.
LIMITATION OF LIABILITY
Neither party excludes or limits its liability to the other for fraud, death or personal injury caused by any negligent act or omission or wilful misconduct of a party in connection with the provision or use of the Software or Services.
To the maximum extent permitted by applicable law, the Company, its agents, subsidiaries or affiliates shall in no event by liable for any indirect, incidental, consequential, special or exemplary damages. This shall include without limitation any and all product liability claims, breach of implied or actual warranty, any claims resulting from use or consumption of any products or services ordered through the Software or Services, pure economic loss, losses incurred by any client or user of yours or other third party, loss of profits (whether categorised as direct or indirect), losses arising from business interruption, loss of business revenue, business reputation or goodwill, anticipated savings, losses whether or not occurring in the normal course of business, wasted management or staff time loss of programs or information or other intangible loss arising out of the use or the inability to use the Software or Services, or any permanent or temporary cessation of such Services or Software or access to information or the deletion or corruption of any Customer Data or information, or the failure to store any Customer Data or information.
Unless specifically agreed in a form of a SLA agreement, in no event shall Festivo or its suppliers be liable for any damages (including, without limitation, damages for loss of data or profit, or due to business interruption, etc.) arising out of the use or inability to use the materials on Festivo's Internet site, even if Festivo or a Festivo authorized representative has been notified orally or in writing of the possibility of such damage.
The above limitation of liability shall apply whether or not the Company has been advised of or should have been aware of the possibility of such damages.
Subject to the above, the total liability of the Company (whether in contract, tort or otherwise) under or in connection with this Agreement or based on any claim for indemnity or contribution shall not exceed one hundred (100) per cent of the total Fees (excluding any VAT, duty, sales or similar taxes) paid or payable by you to the Company during the preceding twelve (12) month period or, if the duration of the Agreement has been less than twelve (12) months, such shorter period, as applicable.
You acknowledge and agree that in entering into this Agreement, you have had recourse to your own skill and judgement and have not relied on any representations made by the Company, any employees or agents of the Company and that the limitations on liability set out above are fundamental elements that form the basis of the agreement between the user and you, without which the Company would not have provided the Software and Services to you.
You shall indemnify and hold the Company and its suppliers or agents harmless from and against any cost, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from: (i) any claimed infringement or violation by you of any IPRs with respect to your use of the Software or Services outside the scope of this Agreement; (ii) any access to or use of the Software or Services by a third party; (iii) use by the Company of any Customer Data; and (iv) breaches of data protection law or regulations resulting from the Company processing data on behalf of and in accordance with your instructions. The indemnity above extends to and includes all costs, damages and expenses (including legal fees and expenses) reasonably incurred by the Company in defending any such action, proceeding claim or demands.
The Software or Services may include hyperlinks to third-party content, third party merchant services, advertising or websites. You acknowledge and agree that the Software or Services are not responsible for and do not endorse any advertising, products or resource available from such resources or websites.
If a party is wholly or partially prevented by Force Majeure from complying with its obligations under this Agreement, that party’s obligation to perform in accordance with the terms of this Agreement will be suspended. (“Force Majeure”) means anything outside the reasonable control of a party, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage, including without limitation where Company ceases to be entitled to access the Internet for whatever reason, server crashes, deletion, corruption, loss or removal of data, transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency.
NO THIRD PARTY RIGHTS
Nothing contained in this Agreement is intended to be enforceable by a third party under any law in an applicable jurisdiction.
JURISDICTION AND APPLICABLE LAW
This Agreement shall be governed by the laws of the Republic of Poland and law of the European Union. You expressly understand and agree to submit to the personal and exclusive jurisdiction of the courts of the Republic of Poland and law of the European Union to resolve any legal matter arising from this Agreement or related to your use of the Software or Services.
CHANGES TO THE TERMS
We reserve the right to change or modify the terms of this Agreement upon giving you 30 days notice via email. All changes shall be deemed to have been accepted by you unless the you terminate the Agreement prior to the expiry of the 30 day period. All notices to be given under this Agreement must be given in writing (which shall include email).
This Agreement constitutes the whole agreement and understanding between the parties and supersedes all prior agreements, representations, negotiations and discussions between the parties relating to the subject matter thereof. You may be subject to additional terms and conditions when you use, purchase or access other services, affiliate services or third-party content or material.
Should a provision of this Agreement be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
No party may assign, transfer or subcontract its rights under this Agreement without the prior written consent of the other party, such consent shall not be unreasonably withheld, however the Company shall be entitled to assign the Agreement to any company in the Company’s group of companies.
The Company and you are independent contractors and nothing in this Agreement will be construed as creating an employer-employee relationship.