TERMS AND CONDITIONS OF MOTIV-ACE

General terms and conditions MOTIV- ACE®  ver. 2019-001

The terms of conditions for the use of web-based application MOTIV-ACE® owned by SHINE Consulting s.r.o. in accordance with Act No. 89/2012 Coll., Civil Code, as amended (hereinafter referred to as „civil code“).

1.    INTRODUCTORY PROVISIONS

1.1.    Theses general terms and conditions (hereinafter referred to as“Conditions”) stipulate the legal rights and duties of the following parties:  SHINE Consulting s.r.o. (hereinafter referred to as „SHINE“), registered office at Pozořice, Oulehla 443, postcode 66407, company registration number 25318292, tax identification number CZ25318292, registered in the Commercial Register administered by the Municipal Court in Brno, File C, section 24686, provider of an electronic system MOTIV-ACE® available at a unique internet address created for a specific user, and the end users of the electronic system MOTIV-ACE® (hereinafter referred to as „Customers“ ).

1.2.    The Conditions stipulate all legal rights and obligations that exist in any relations between SHINE and Customers arising from the use of the web-based application motivace.cz and its content.

1.3.    Customer is a business entity or businessperson using the web-based application motivace.cz 

2.    TERMS USED

2.1.     For the purposes of the Conditions, the following terms will be interpreted as specified in this Article:

2.2.    Product: a unique system – MOTIV-ACE® – provided to the Customer to be used as a web-based application motivace.cz accessible to the customer via a unique Web interface.

2.3.    Web interface: a unique web interface created by SHINE for a specific Customer on the basis of a contract concluded between SHINE and the Customer, allowing the Customer to use the Product. 

3.    CONCLUSION OF CONTRACT

3.1.    SHINE will send an order request form to the party interested in the Product. The Customer interested in the Product will send the filled-in form (order) to SHINE either in writing or electronically to the following email address: info@motiv-ace.cz. The contractual relationship between the Customer and SHINE is established – the contract is concluded (hereinafter referred to as „Contract“) – upon delivery of the order confirmation to the Customer (either in writing or via email). The subject of the Contract is the licence permitting the use of the Product for the duration of the Contract as defined in the Contract and in accordance with the conditions stipulated in the Contract and in these Conditions.

3.2.    These Conditions form an inseparable part of the Contract. The Contract shall take precedence in the event of any contradiction arising between the Contract and the Conditions.

3.3.    On the basis of the Contract, SHINE will provide access to the Product to the Customer by means of a unique Web interface. SHINE will then subsequently provide the Customer with sign-in information to the Web interface. 

3.4.    The Customer is obligated to protect their sign-in information as well as information about their unique Web interface. Should the Customer share such information or data with an authorized person or persons or if there is a data breach or breach of secrecy on the side of the Customer, the Customer shall be fully liable for any misuse of such information or data or any consequence thereof. In such cases SHINE will not be liable for any damage. The Customer hereby undertakes full responsibility for taking sufficient measures to secure their technical equipment, devices, and facilities to minimize any risks of misuse of sign-in data and Web interface information.

4.    COURSE OF PRODUCT USE

4.1.    By creating the Web interface and handing over the sign-in information SHINE effectively provides the Customer with the means to use the Product. The use of the Product includes a licence granting the permission to use the MOTIV-ACE® software through the web application.

4.2.    The Customer has a right to use the Product since the day of provision of access to the Web interface and receipt of sign-in information and for the duration of the Contract. 

4.3.    The Product complies with relevant legal regulations and serves the purpose described and presented by SHINE. 

4.4.   The Product is secured using an SSL certificate and an HTTPS protocol. These allow secure communication between a web server and a browser.

4.5.    Alongside the Product, the Customer may use the SHINE technical support services by means of filing a request in a HelpDesk form available to every customer at Web interface. Basic technical support limited to resolving issues of limited Product functionality or the Product being inoperative is included in the price of the Product. Other technical support, which is subject to charges as quoted by SHINE upon request, will be provided upon receipt of Customer approval.

5.    PRODUCT PRICE

5.1.    The Customer is obligated to make an advance payment of the price of the Product for the provision of the Product. The price of the Product includes a licence to the MOTIV-ACE® software, which the Customer will be permitted to use through a web application.

5.2.    SHINE will provide the Product to the Customer free of charge for the first two months of Product use commencing on the day of provision of sign-in information to the Customer (hereinafter referred to as „Trial Period“). The Customer has a right to terminate the Contract during the Trial Period. Such termination must be made in writing (including email communication) and delivered to SHINE no later than 5 days prior to the expiry of the Trial Period. If no Trial Period termination is made within the stated termination period, the Customer thereby expresses their will to use the paid version of the Product for a period of the following 12 months (hereinafter referred to as Paid Period), unless otherwise stated in the Contract concluded by the two parties, and the Customer is obligated to make an advance payment of the price of the Product for the whole Paid Period. The provision of the Trial Period is limited to customers purchasing the Product for the first time and excludes repeat Customers as well as licence extensions requested by the Customer.  

5.3.    Before the expiry of the Trial Period, both parties (Customer and SHINE) may agree to a shorter duration of the Paid Period, which may be either three (3) or six (6) months. In such a case, the Customer is obligated to request such an alteration during the Trial Period but no later than 5 business days prior to the expiry of the Trial Period. The agreement becomes effective upon receipt of written confirmation (including email communication) sent by SHINE. SHINE is obligated to act upon receipt of Paid Period alteration request made by the Customer without undue delay.

5.4.    After the expiry of the Paid Period the duration of the Contract shall always be automatically extended for a period equal to the Paid Period (i.e. 12 months unless stated otherwise). In case the Customer no longer intends to continue using the paid version of the Product the Customer is obligated to notify SHINE no later than 5 days prior to the expiry of the Paid Period.

6.    PAYMENT

6.1.    SHINE will issue an invoice to the Customer, the payment due date being 14 days within issue of the invoice. The invoice is deemed paid upon receipt of due payment (in SHINE account).

6.2.    The Customer is obligated to pay the full price even if they decide, of their own free will, to not use the Product or to use a limited part of the Product. In such cases SHINE has no obligation to make any compensation and the Customer has no grounds for claiming any form of compensation.

6.3.    All prices stated in the Contract do not include VAT. Corresponding VAT charges shall be added to the price stated in the Contract in the amount which is in accordance with effective legal regulations.

6.4.    In case of payment being made more than 7 days after the payment due date, SHINE has a right to charge the customer a penalty fee equal to 0,05 % of amount due for every day of late payment. This penalty right does not limit or affect the right of SHINE to claim damages or to deny the Customer access to the Product. 

7.    PROTECTION OF INTELLECTUAL PROPERTY, LICENCE

7.1.    After payment of price of the Product by the Customer, SHINE provides to the Customer a licence permitting the use of the Product for a limited time period as stated in the order. The licence granted to the Customer in non-exclusive and non-transferable.

7.2.    The Customer may not sublicence the licence to any persons or parties. The Customer may not use the trademark MOTIV-ACE® belonging to SHINE or any other intellectual property belonging to SHINE.

7.3.    The complete and full content of the Product is the exclusive property of SHINE protected in accordance with legal regulations on copyright, trademarks and other regulations and rights relating to intellectual property. SHINE does not transfer to Customer any rights to intellectual property of the Product with the exception of the licence to use the Product.

7.4.    The Customer may not use the Product for other purposes than those relating to their business needs. The Customer may not copy, reproduce, distribute, publish, display, perform, modify, create derivative works, transmit, or in any way adjust any such content or technical format (of the Product) without the prior written consent of SHINE.

7.5.    The Customer may not perform any reproduction or modification of the Product by any mechanical or electronic means without the prior written consent of SHINE. The Customer may not copy, reproduce, or distribute the Product or provide the Product to any other persons or parties.

7.6.    The Customer hereby undertakes not to sell or trade the outputs, methodology, and know-how of SHINE gained in the course of performance of the Contract.

7.7.    The parties to this contract agreed that SHINE does not gain proprietary rights to Customer data. The Customer is solely responsible for the content of the data entered into the Product and for their employees, collaborating persons, or other persons to whom the Customer provides access to the Product via their Web interface. The Customer may not enter into the Product any content which is illegal or whose distribution is illegal, content which violates third party copyright laws, or content which is part of a criminal activity. The Customer may not attempt to acquire access to the Product of another customer or to SHINE servers. Any violation of the foregoing prohibitions and obligations will constitute effective legal grounds for Contract termination and effectively establishes liability of the Customer for any damages incurred and claimed by SHINE.

8.    CONFIDENTIAL INFORMATION

8.1.    SHINE hereby declares that any data entered into the Product by the Customer will be treated as confidential and SHINE undertakes to protect such data. The Customer hereby agrees that SHINE considers the following information confidential: information stated in the Contract, information pertaining to the performance of the contract which is provided to the Customer in oral or written form, any information or documentation which may considered to be of competitive significance which can be identified and valued and which is generally otherwise unavailable in the given field.

9.    PERSONAL DATA PROTECTION, COOKIES POLICY

9.1.    All personal data processing by SHINE is performed in accordance with existing legal regulations guiding the processing of personal data, in particular the European Parliament and Council Regulation (EC) 2016/679, DATED April 27, 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and on the repeal of Directive 95/46/EC (further as “GDPR”). Information on principles and processes guiding the protection of personal data can be found in General Data Protection Regulation, available at https://www.motiv-ace.com/data-privacy.

9.2.    Personal data may be entered into the Product. The Customer therefore notes that, in relation to the personal data they enter into the Product, the Customer takes on the role of data controller and SHINE takes on the role of data processor. Both the Customer and SHINE are obligated to handle the personal data described in the preceding sentence of this article in accordance with relevant legal regulations on personal data management, in particular the provisions of GDPR.

9.3.    The Customer hereby agrees that SHINE is authorized to use cookies. Cookie is a small file which is saved on the Customer’s hard drive by the Customer’s web browser. The file (cookie) is not used to gain private information about the Customer but rather to identify and differentiate individual Customers accessing the Product (such information may include the user IP address or the browser used).

9.4.    The Product may also contain third-party cookies, which SHINE uses to gain anonymous statistics about website traffic and Customer browsing history. These third parties tend not to store any private information about users because Customer identity is not known (unless the Customer is also a registered user of a product of such a third party, e.g. Google). This applies to the following cookies:

9.4.1.    Google Analytics – SHINE uses this service in order to obtain statistical information. Google may keep and retain such information for its own use in compliance with its privacy policy available at www.google.com/intl/cs/policies/privacy;

9.4.2.    Sklik conversion code – for purposes of measuring the effectiveness of advertising for SHINE websites;

9.4.3.   Facebook conversion code – for purposes of measuring the effectiveness of advertising for SHINE websites;

9.4.4.    Google AdWords – SHINE may use remarketing services. Even an unregistered user who has previously visited the SHINE website can be identified (using cookies) within the Google advertising network and may have an ad advertising SHINE services shown to them while browsing. More information on advertising within the Google Network is available at www.google.com/intl/cs/policies/technologies/ads/; users may change their settings concerning adverts displayed as part of the Google Network at www.google.com/ads/preferences/?hl=cs.

9.5.    SHINE reserves the right to use third-party cookies not listed above;

9.6.    The Customer has a right to set their browser preferences to delete, allow, or block cookies or prevent cookies from being stored on their computer.

10.   GDPR DATA PROCESSING CONTRACT

10.1.    By concluding the Contract in accordance with these Conditions the Customer agrees to conclude and abide by the GDPR data processing contract in accordance with Art. 28 of GDPR in the following wording:

10.2.    The subject-matter of processing: personal data entered into the Product by the Customer in accordance with the provisions stated in the Conditions.

10.3.    Duration of processing: Personal data are processed and stored by SHINE for the duration of the legally binding Contract concluded in compliance with the Conditions. After 30 days since the termination of the Contract SHINE will delete (remove) all Customer data entered into the Product with the exception of data the storage of which is mandated by relevant legal regulations.

10.4.    Nature and purpose of processing: The purpose of processing is to carry out the legal obligations stipulated by the Contract, especially in order to allow the Product to be used.

10.5.    Types of personal data subject to processing: Any personal data entered into the Product. In particular, this includes, (a) contact and identification information – name, surname, date and place of birth, sex (gender), address/place of business, citizenship, company registration number, phone number, e-mail address; (b) other data necessary for project management and planning – socio-economic and socio-demographic characteristics (marriage/civil union or partnership, number of children, job title, education, salary, or other income); (c) Other data – 

10.6.    Categories of data subjects whose personal data are subject to processing: employees of the Customer and persons that collaborate with the Customer.

10.7.    Obligations of SHINE as a personal data processor: SHINE hereby undertakes:

10.7.1.    to process personal data solely on the basis of express instruction or consent by the Customer. Proof of instruction or consent to personal data processing by the Processor is further required if the processed personal data are to be transferred to a third country or an international organization;

10.7.2.    to ensure that those working at SHINE tasked with handling personal data or SHINE employees who may come into contact with personal data be bound by secrecy;

10.7.3.    to implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk. In assessing the appropriate level of security, SHINE shall take account in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, stored or otherwise processed. Technical security measures are described in Rules of personal data protection;

10.7.4.    to take into account the nature of the processing and assist the Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer‘s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III of GDPR (Rights of the data subject);

10.7.5.    to assist the Customer in ensuring compliance with the obligations pursuant to Articles 32 to 36 (of GDPR) taking into account the nature of processing and the information available to SHINE;

10.7.6.    to notify the Customer, without undue delay, of any violation of GDPR or the personal data protection policy;

10.7.7.    to provide to the Customer all information necessary for verifying that the obligations stated above were fulfilled and allow the Customer to check whether these obligations were met. SHINE hereby undertakes to provide cooperation in such cases.

10.7.8.    to inform the Customer without undue delay in case that SHINE determines that a request made by the Customer constitutes a violation of GDPR or other legislation governing personal data protection.

10.8.    Other data processors: The Customer hereby grants their consent to involve SHINE in the process of personal data processing for the data entered into the SHINE Product (and subsequently stored on SHINE servers or the hosting centre) by the Customer. SHINE hereby undertakes to inform the Customer of any intended changes as regards the replacement of existing processors or addition of other processors and to allow the Customer to object to such changes. The list of processors is stated in Rules of personal data protection.

11.    SHINE LIMITED LIABILITY

11.1.    Access to the Product is provided by way of a unique Web interface and unique sign-in information which the Customer is obligated to protect. SHINE will not be liable for any misuse or any damage or claims made by third parties resulting from such misuse of information.

11.2.    SHINE will not be liable for any damage resulting from force majeure events or from technical faults on technical facilities not run by SHINE. A force majeure event means a temporary or permanent, exceptional, unforeseeable, unavoidable and insurmountable obstruction originating beyond the control and will of SHINE. In case of force majeure events taking place on the side of SHINE, the Customer will be notified of the situation and its cause by SHINE without due delay. SHINE undertakes to continue to run the Product to the best of its resources and abilities, even if alternative resources are necessary.

11.3.    SHINE will be liable for damages incurred by the Customer to the limit of the annual price of the Product.

12.    CONTRACT TERMINATION

12.1.    The Contract may be terminated by notifying the other party in writing for no other reasons than those stipulated in these Conditions.

12.2.    SHINE may terminate the contract without a notice period coming into effect for the reasons stipulated below:

12.2.1.    The Customer breaches the terms of the Contract or of these Conditions;

12.2.2.    The Customer provides access to the Product to a third party without prior written consent of SHINE;

12.2.3.    The Customer fails to pay the due amount for the Product for more than 30 days after the payment due date.;

12.3.    The Customer may terminate the contract without a notice period coming into effect for the reasons stipulated below: 

12.3.1.    The Product cannot be used because the Product is inoperative for a period longer than 5 business days.

12.4.    The Customer may terminate the contract without stating the reason for termination (or for any reason) with a notice period of one (1) month commencing on the day following the day of receipt of such termination by SHINE.

12.5.    Unless stated otherwise, the Customer is not entitled to a refund of the price paid for the Product in case of termination of the Contract by SHINE.

12.6.    In case of a justified termination by the Customer as per article 12.3, the Customer is entitled to a partial refund of the price paid for the Product in the amount corresponding to the part of the period for which the product will no longer be used.

13.    APPLICAPLE LAW, LEGAL FRAMEWORK, DISPUTE SETTLEMENT

13.1.    The contractual relationship between the Customer and SHINE is governed by the laws of the Czech Republic. Matters not dealt with or covered by the Conditions are governed by the provisions of Act No. 89/2012 Coll. of the Civil Code and by other relevant and effective legal regulations.

13.2.    Any legal disputes arising from the Conditions and the Contract concluded in accordance with the Conditions will be handled by relevant Czech legal bodies and courts. Territorial jurisdiction will be determined on the basis of the registered office of SHINE.

14.    BUSINESS INFORMATION

14.1.    SHINE business information is given below:

SHINE Consulting s.r.o.
TAX IDENTIFICATION NUMBER: 25318292
REGISTERED OFFICE: Pozořice, Oulehla 443, 66407
Electronic address (email):  info@motiv-ace.cz

15.    FINAL PROVISIONS

15.1.    By concluding the Contract, the Customer formally agrees to these Conditions and undertakes to comply with the Conditions when using the Product. SHINE reserves the right to amend or change the Conditions. If the Conditions are amended or changed by SHINE, SHINE is obligated to notify the Customer via email (provided by the Customer) at least, but no later than, 30 days prior to the amendments or changes becoming effective. If the Customer does not agree to the changes or amendments, the Customer may terminate the contract with a notice period of one (1) month. The up-to-date wording of the Conditions is available at https://www.motiv-ace.com/terms.

15.2.    These conditions as worded in this document are valid and effective as of 1 June 2019.

15.3.    The Contract may be worded and concluded in Czech or in English. 

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