These ApiMoon Terms and Conditions (the “Terms”), which may be amended from time to time, apply to the use of ApiMoon software – a unique software solution for import, export, backup, archiving and restoring data of organizations which is provided as a cloud / software-as-a-service solution (the “ApiMoon”). By signing the Order Form (including via on-line means and tools) or simply by using ApiMoon (including downloading, installing or accessing ApiMoon or any of its parts, components, functions or features), you confirm that you have read these Terms and agree to be bound by and comply with these Terms. These Terms set out the rights and obligations governing the relationship between us, ApiMoon s.r.o., a company incorporated in the Czech Republic, ID No. 075 29 449, registered office: Na Korábě 2483/3, Libeň, 180 00 Prague 8, Czech Republic, registered with the Municipal Court in Prague, file No. C 302197 (the “Provider”), as the owner and operator of ApiMoon, and you as our client (the “Client”).
1.1 The Terms set out the terms and conditions of use of ApiMoon.
1.2 The Provider is a company developing and operating ApiMoon which is a unique software solution for import, export, backup, archiving and restoring data of organizations which is provided as a cloud / software-as-a-service solution.
1.3 The Client wishes to use ApiMoon as a service and to use related services offered by the Provider in accordance with the Order Form and these Terms. The Provider wishes to provide the Client with access to ApiMoon and allow the Client to use ApiMoon and its functions or features pursuant to the Terms and the Order Form.
1.4 By signing the Order Form (including electronically via on-line means and tools), the Client enters into a binding Agreement with the Provider and acknowledges its rights and obligations under the Agreement. These Terms form an integral and inseparable part of the Agreement specifying the rights and obligations governing the relationship between the Provider and the Client. The Client acknowledges and agrees that the Client is responsible for informing all Users about the terms and conditions of the Agreement and ensuring that the Users will comply with the Agreement, including these Terms.
1.5 No transfer or assignment of any property or ownership, including intellectual property, shall occur based on the Agreement between the Provider and the Client, unless specifically and explicitly specified in the Agreement.
2.1 In these Terms, unless explicitly specified otherwise or unless the context requires otherwise, the following words and expressions shall have the following meanings:
2.1.1 “Agreement” means the agreement entered into by and between the Provider and the Client upon signing the Order Form. The Agreement consists of the Order Form and its Schedules, including in particular (but not limited to) these Terms.
2.1.2 “Billing Period” has the meaning specified in Article 7.2 of the Terms.
2.1.3 “Confidential Information” has the meaning specified in Article 14.1 of the Terms.
2.1.4 “Control” means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and Controls, Controlled and the expression change of Control shall be construed accordingly.
2.1.5 “Copyright Laws” means the applicable laws governing copyright and rights related to copyright.
2.1.6 “Client Data” means any and all data sent, transmitted or otherwise provided or submitted by the Client to the Provider or uploaded by the Client or by the Provider based on the Client’s instruction to ApiMoon for use in connection with ApiMoon and the Services.
2.1.7 “ApiMoon” means a unique software solution for import, export, backup, archiving and restoring data of organizations which is provided as a cloud / software-as-a-service solution which is developed, owned and operated by the Provider and used by the Provider for providing the Services. ApiMoon is accessible at https://www.apimoon.com/.
2.1.8 “Client Account” means a primary non-transferable user account created for the Client to access ApiMoon, its functions and features with unique access details consisting of a username and password or, as the case may be, different login method anticipated by ApiMoon. The Client may have only one Client Account; however multiple User Accounts may be created under the Client Account.
2.1.9 “User Account” means a non-transferable user account created by or for the Client under the Client Account for the Users to access ApiMoon and its functions with unique access details consisting of a username and password or, as the case may be, different login method anticipated by ApiMoon. Different levels of access, administrative and modification rights may be connected with different User Accounts.
2.1.10 “Derivative Data” means any and all data that result from the commingling or other aggregation of the Client Data and/or the Provider Data.
2.1.11 “Effective Date” means the day when the Agreement becomes effective; unless agreed otherwise in the Order Form, the Effective Date shall be the first day when the Client actually starts to use ApiMoon.
2.1.12 “Force Majeure” means any cause preventing any Party from performing any or all its obligations under the Agreement, that arises from, or is attributable to circumstances beyond the respective Party’s reasonable control, including, but not limited to, acts of God, wars, warlike events, terrorism, strikes, civil unrest or commotion, riots, vandalism, physical or electronic attacks targeting the respective Party’s premises or communication, Internet or utilities infrastructure and similar, acts of governmental or supranational authority, national emergencies, epidemies, or natural disasters, such as fires, floods, earthquakes, volcanic eruptions, major storms, or failures and delays in the banking or payment collections or payment transfer systems, including any unforeseeable failure or outage of cloud service provider such as Amazon Web Services, Microsoft Azure, Google Cloud Platform beyond the Provider’s reasonable control.
2.1.13 “Order Form” means the binding order form signed between the Parties to which these Terms are attached as its integral part.
2.1.14 “Parties” mean collectively the Provider and the Client and “Party” means individually the Provider or the Client.
2.1.15 “Provider” refers to ApiMoon s.r.o., a company incorporated in the Czech Republic, ID No. 075 29 449, registered office: Na Korábě 2483/3, Libeň, 180 00 Prague 8, Czech Republic, registered with the Municipal Court in Prague, file No. C 302197.
2.1.16 “Provider Data” means any and all data that is (a) generated by the Provider in the course of providing the Services including, without limitation, service and usage data; and/or (b) otherwise collected by the Provider, whether as a result of the Services or otherwise.
2.1.17 “Services” mean, collectively: (a) provision of access to, operation and maintenance of ApiMoon under the terms and conditions stipulated in the Agreement; (b) the Provider’s reception and processing of the Client Data in order to provide the Services via ApiMoon; and (c) provision other services described in the Agreement.
2.1.18 “Term” means the term of the Agreement; unless agreed otherwise in the Order Form, the Agreement is concluded for an indefinite period of time commencing on the Effective Date.
2.1.19 “Terms” mean these ApiMoon Terms and Conditions.
2.1.20 “User” means a person designated by the Client that is authorized to use the User Account created under the Client Account to access ApiMoon.
2.2 All capitalized terms used in these Terms but not otherwise defined in these Terms shall have the meanings given to them in the Order Form.
2.3 Article and paragraph headings shall not affect the interpretation of the Terms and the Agreement.
2.4 Unless the context requires otherwise, words in the singular shall include the plural and, in the plural, shall include the singular.
2.5 A reference to a statute or statutory provision is a reference to it amended, extended or re-enacted from time to time.
2.6 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
2.7 A reference to writing or written includes e-mail.
2.8 Any approval or consent required under the Agreement shall not be unreasonably withheld or delayed, unless stated otherwise.
2.9 Any requirement for notice shall be deemed to be a requirement for a written notice and, if no timescale is specified for giving/sending the notice or the performance of any obligation under the Agreement, the deemed requisite timescale shall be as soon as reasonably possible.
3.1 The Provider shall provide access to ApiMoon to the Client and allow the Client to use ApiMoon, its functions and features and provide the Services to the Client under the terms and condition of the Agreement.
3.2 The Client shall pay to the Provider the agreed fees for access to and use of ApiMoon, its functions and the Services pursuant to the terms and conditions of the Agreement.
4.1 Upon concluding the Agreement and as of the Effective Date, the Provider shall provide access to ApiMoon via the Client Account and the User Account and allow the Client to use ApiMoon. Creating the Client Account and the User Account requires completing registration by the Client. The Client is required to designate at least one individual (User) as an admin user (the “Admin User”) who will be authorized to make changes to the Client Account, add or remove Users, including other Admin Users, and to take any other actions on behalf of the Client pursuant to the Agreement.
4.2 During the Term, and subject to the terms and conditions of the Agreement, the Provider shall make ApiMoon available to access and use by the Client on a non-exclusive, non-transferable, non-assignable and revocable basis. The Client shall have a corresponding non-transferable, non-assignable and revocable right to access and use ApiMoon on the Client’s computer and other devices (if allowed by the Provider) solely for the Client’s purpose of a definetion of data flows. ApiMoon shall be made available to the Client solely on an on-demand basis via the Internet.
4.3 Except to the extent otherwise expressly agreed: (a) the Provider hereby reserves all rights in and to ApiMoon, the Services, the Provider Data, and the Derivative Data; and (b) the Client hereby reserves all rights in and to the Client Data it provides hereunder.
4.4 The Provider shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Provider or by third-party providers, or because of other causes beyond the Provider’s reasonable control, but the Provider shall use reasonable efforts to provide advance notice by e-mail of any scheduled Service disruption.
4.5 The Client acknowledges that ApiMoon and the Services may be updated and modified from time to time (these include general updates and modifications of ApiMoon intended for all Clients and Users to ensure general improvements of ApiMoon’s features, eliminate general errors, adjust to technical improvements etc.). Such updates and modifications shall be performed in the Provider’s sole discretion and without any right to claim any additional fees.
4.6 In case the Services were not provided in the agreed scope or quality, the Client is obliged to notify the Provider and provide the Provider with active cooperation in order to rectify the shortcoming. In addition, the Provider shall inform the Client if the Provider becomes aware that the Services were not provided in the agreed scope or quality; the Client’s obligation to notify the Provider, however, remains unaffected.
4.7 The Provider reserves the right in its sole discretion to restrict the Client’s access to and use of ApiMoon for any reason or without a reason, including but not limited to, the Client’s violation of any laws or the Agreement, including particularly (but not limited to) the Terms. The Client expressly acknowledges and agrees that the Provider may terminate and discontinue the provision of ApiMoon and the Services at any time in its own discretion without any liability to the Client.
4.8 The Provider may revise features and functions of ApiMoon from time to time, including without limitation by adding new features and functions, modifying current features and functions and/or removing or substituting current features and functions. The Provider shall notify the Client at least 1 month before any such revision of ApiMoon materially reducing the features, functionality or backward compatibility of ApiMoon takes effect. For the avoidance of doubt, the period referred to in the previous sentence shall not apply to critical incidents or hotfixes that the Provider can fix without prior notification to the Client.
4.9 The Client further acknowledges and agrees that the Provider has no obligation to provide maintenance and support (including upgrades or updates) of ApiMoon to the Client unless explicitly agreed with the Provider otherwise. The Client acknowledges and agrees that the Client shall have no remedy for any failure of ApiMoon unless explicitly stated herein or agreed separately with the Provider.
5.1 All Clients considering the use of ApiMoon have the opportunity to test ApiMoon for the period of up to 1 month based on their acceptance of these Terms (i.e., without the need to sign an Order Form).
5.2 We reserve the right to reduce or extend the duration of the trial period or to provide our Clients with further trial periods at any time and in our sole discretion.
5.3 Please note that we provide the trial periods as a complimentary service, and we shall not charge you any fees for it.
5.4 Please note that we provide the trial periods as a complimentary service, and we shall not charge you any fees for it.
5.5 The Provider reserves the right in its sole discretion to restrict the use of ApiMoon in the trial period for any reason or without a reason, including but not limited to, the Client’s violation of any laws or these Terms. The Client expressly acknowledges and agrees that the Provider may discontinue the provision of ApiMoon in the trial period at any time in its own discretion without any liability whatsoever.
6.1 The Provider grants to the Client a non-exclusive, non-transferable, non-assignable and revocable license to use the Services and ApiMoon to the extent necessary for using ApiMoon in accordance with the Agreement and particularly its purpose as specified in the Agreement (see Article 4.1 of the Terms). The license is provided for the time period in which the Client is allowed to use the Services pursuant to the Agreement, and also applies to any parts of the Services which are copyrighted works or databases, within the meaning of the Copyright Act.
6.2 The Provider represents and warrants that it is exclusively authorized to grant licenses to ApiMoon. The Client is not allowed to license, sublicense, lease, commercially exploit, sell, transfer, assign ApiMoon or any of the Services to a third party unless expressly stipulated otherwise in the Agreement.
6.3 Notwithstanding the previous Article, the Client acknowledges and agrees that ApiMoon uses certain open-source elements and libraries, including in particular the following: java, spring, react, mariadb, google ouath, for which the terms and conditions of the respective open-source licenses apply. However, the use of such open-source elements in ApiMoon does not affect the usability of ApiMoon in accordance with these Terms and its purpose.
6.4 No provision of the Agreement or any other document shall be interpreted as granting, assigning or transferring to the Client any intellectual property or other proprietary rights, including patents, copyrights, trademarks (both registered and not registered), industrial designs, moral rights, trade secret or confidential information, mask work rights, service marks, design rights, registered designs, topography rights, database rights, rights of confidence, know-how, expertise, technology, techniques and all other similar intellectual property or proprietary rights anywhere in the world, whether or not registered or statutory and including, without limitation, all applications and registrations with respect to the foregoing, to or relating to ApiMoon, the Provider Data or the Derivative Data.
6.5 The Provider may incorporate in ApiMoon tools and features that enable the Provider to remotely supervise the scope of use of ApiMoon to the extent necessary to verify the compliance of the Client with the terms of the Agreement. The Provider may further incorporate in ApiMoon computer code capable of automatically disabling or limiting the operation of ApiMoon or any part thereof, and has the right to activate such disabling code if (i) fees are not paid by the Client when due; or (ii) the Client repeatedly fails to meet the Provider’s reasonable request to verify the compliance of the Client with the terms of the Agreement; or (iii) the Client infringes the terms and conditions of this Agreement; or (iv) the Agreement is terminated.
6.6 The Client acknowledges and agrees that any modifications or extensions of ApiMoon (or any part thereof) of any kind may be carried out exclusively by the Provider unless the Parties agree otherwise. For the avoidance of doubts, the Parties agree that the Provider shall own all ownership and intellectual property rights to any and all modifications or extensions of ApiMoon (or any part thereof) of any kind.
6.7 The Provider may limit the Client’s use of ApiMoon and the Services if the Client violated the terms and conditions under the Agreement.
6.8 The Client acknowledges that ApiMoon may include third-party software code or components (such as frameworks, libraries, modules, application interfaces, tools, graphic objects, etc.) protected by such third party’s intellectual property rights.
7.1 In consideration of the Services provided (access and use of ApiMoon and its functions and features) by the Provider to the Client under the Agreement, the Client shall pay to the Provider fees according to the Order Form, unless agreed otherwise in writing. The Provider may, on a case-by-case basis, discount the fees at its sole discretion.
7.2 Unless agreed otherwise in the Order Form, the fee charged for the Services shall be charged by the Provider and paid by the Client either (i) monthly at the beginning of each monthly billing period of using ApiMoon, or (ii) yearly at the beginning of each 12-month billing period of using ApiMoon (the “Billing Period”).
7.3 For the purpose of calculation of the fee, the Client shall indicate in the Order Form or notify the Provider without undue delay after the signing of the Order Form the number of the Client Accounts and the User Accounts to be created and used by the Client in the immediately following Billing Period. Unless agreed otherwise in the Order Form, the total amount of the fee applicable to each Billing Period shall be calculated as the product of (i) the number of the Client Accounts and the User Accounts to be created and used by the Client in the respective Billing Period and (ii) the respective agreed fee per one Client Account and User Account ordered by the Client, as specified in the respective Order Form.
7.4 In case the Client wishes to increase the number of the Client Accounts or the User Accounts during a Billing Period beyond the pre-paid number of the Client Accounts or User Accounts in the given Billing Period, the Provider shall charge and the Client shall pay for such additional Client Accounts or User Accounts an additional fee, which shall be calculated in accordance with Article 7.3 of the Terms and proportionally reduced to correspond to the number of calendar months (including incomplete calendar months) remaining until the end of the given Billing Period.
7.5 Unless agreed otherwise between the Parties in writing, the Client is entitled to decrease the number of the Client Accounts or User Accounts that have been pre-paid for a particular Billing Period only with effect from the beginning of the immediately following Billing Period, i.e., the Client is not entitled to request any refunds in case the Client does not use any of the Client Accounts or the User Accounts that have been pre-paid for a particular Billing Period.
8.1 The Client shall pay all fees and due amounts to the Provider either based on an invoice issued by the Provider or, if such an option is available, by debit or credit card.
8.2 In case of payment based on invoices, the following rules shall apply:
8.2.1 All invoices issued by the Provider under the Agreement shall contain all information required by the relevant law for tax documents.
8.2.2 The Parties agreed that all payments pursuant to the Agreement shall be due 14 days from the date of delivery of the invoice.
8.2.3 The Client shall pay the fee for the Services and any other payment via bank transfer to the bank account specified by the Provider in the invoice. Payment is considered as paid when credited to the bank account specified in the invoice.
8.3 In case of payment by debit or credit card, the following rules shall apply:
8.3.1 The Client may use only such types of debit and/or credit cards that are explicitly permitted by the Provider and registered by the Client in the Client Account.
8.3.2 Upon initial registration of debit or credit card in the Client Account, the Client may see a pending charge as part of the authorization confirmation process. This is not a charge and is used to confirm bank account authenticity.
8.3.3 The Provider is not responsible for any fees or charges that Client’s bank or card issuer may apply. The Client acknowledges that the Client may be charged local tax, if applicable.
8.3.4 If the payment method is declined, the Provider will attempt to process the charge until the transaction is approved. If the Provider is unable to complete the transaction, the Provider may contact the Client to update its account information.
8.3.5 The Provider may use a third-party service provider for payment services (e.g., credit card transaction processing, merchant settlement, and related services). By registering the debit or credit card in the Client Account, the Client authorizes the Provider to charge the Client’s payment provider. Furthermore, the Client consents to provide and authorize the Provider’s third-party service providers to share any information and payment instruction the Client provides to the extent required to complete payment transactions in accordance with the Terms and Agreement, including personal, financial, card payment, and transaction information.
8.3.6 In particular, the Client acknowledges and agrees that for the purpose of the operation and use of on-line payments in accordance with Article 8 of the Terms, the Provider may cooperate with Stripe Payments Europe, Limited, Reg. No. 513174, with its registered seat at C/O A&L Goodbody, Ifsc, North Wall Quay Dublin 1., Dublin 1, Dublin, Ireland (“Stripe”), which operates the Stripe payment gateway. The Client expressly agrees to be connected to the Stripe payment gateway through the Provider, as a result of which the Client enters into a contractual relationship with Stripe. The Client acknowledges that Stripe may provide Provider with a commission or other similar remuneration in connection with the connection to the Stripe payment gateway in exchange for the Provider’s referral. The Client acknowledges and agrees that all fees associated with facilitating payments through the Stripe payment gateway will be paid by the Client directly to Stripe. The Client further acknowledges and agrees that the Provider is entitled to invoice him for the fees in accordance with the first sentence of this Article 8.3.6 of the Terms, if expressly authorized by Stripe.
8.3.7 The Parties agreed that all payments pursuant to the Agreement shall be charged to the respective debit or credit card (or any of them in case the Client registered more than one debit or credit card) when such fees and charges become due in accordance with Article 7 of the Terms.
8.4 If the Client fails to make any payment in time, it undertakes to pay to the Provider default interest in the amount of 0.05 % of the due amount per each day until the outstanding amount is fully paid.
8.5 In case the Client is in default with payment of any invoice by more than 30 days, the Client shall be considered as having committed a material breach of the Agreement and the Provider is entitled to restrict or suspend the provision of the Services until all the outstanding amounts are duly paid.
8.6 The Client acknowledges that if a physical attendance of the Provider’s experts on the premises of the Client or other places as the Client may require is necessary, the Client shall be obliged to bear the costs connected with such attendance, e.g., travel costs. The Provider will communicate to the Client an estimation of such costs in a reasonable advance and reserve a right to postpone the provision of the Services until the cost estimation is approved in writing by the Client.
9.1 The Client undertakes to provide all the assistance and cooperation required by the Provider in order to provide the Services and allow the Client to use ApiMoon, including without limitation the provision of accurate and complete Client Data and other information and documentation relating to the provision of Services. The Provider shall not be in delay with the provision of the Services to the extent in which the Client failed to provide necessary assistance and cooperation according to the previous sentence; in particular, the Provider shall not be liable for the provision of the Services to the extent in which the Client failed to provide the Provider with timely, accurate and complete Client Data necessary for the provision of the Services, including providing the data in required format allowing the data to be processed in ApiMoon.
9.2 The Client is aware of the fact and acknowledges that the ability to use the Services and ApiMoon also depends on the following conditions, for the fulfilment of which the Provider is not liable:
9.2.1 availability of the Client’s or User’s internet connection (including a back-up internet connection) with sufficient capacity for the provision of the Services;
9.2.2 due functioning of the equipment or device used by the Client or Users when using the Services (software, hardware etc.);
9.2.3 due functioning of the internet connection between the Client or the Users and the data center from where the Services are provided; and
9.2.4 provision of due cooperation by the Client and the Users.
9.3 The Client is further obliged to:
9.3.1 use ApiMoon exclusively in accordance with the purpose designated by the Provider, particularly for the Client’s own purpose as specified in the Agreement (see Article 4.1 of the Terms);
9.3.2 use the Services and ApiMoon in accordance with the Agreement, including the Terms;
9.3.3 comply with all legal regulations related to the Client’s activities and the use of ApiMoon;
9.3.4 use ApiMoon only in a manner that complies with all applicable laws in the jurisdiction in which the Client and Users use ApiMoon, including but not limited to, applicable restrictions concerning copyright and other intellectual property rights. In this connection, but without being limited to, any use of ApiMoon must not violate any sanctions or embargoes imposed on countries by (i) the Czech Republic, (ii) the European Union, (iii) the United States of America, or (iv) the United Nations;
9.3.5 refrain from using ApiMoon in any countries and territories which are subject to sanctions or embargoes imposed by (i) the Czech Republic, (ii) the European Union, (iii) the United States of America, or (iv) the United Nations;
9.3.6 use ApiMoon only in a manner that shall not violate the Provider’s rights or any third-party rights;
9.3.7 refrain from modifying, altering, processing, or otherwise interfering with ApiMoon, any of its part, or its source code, including decompiling, disassembling, or reverse engineering ApiMoon, including refraining from any conduct that would allow any third party to do so;
9.3.8 refrain from any conduct that would cause removing, modification, obscuring, translation or reproduction of ApiMoon;
9.3.9 not transfer, assign, sell, license, sublicense, lease, rent, distribute, disclose, permit access to, export or re-export or make otherwise available the license provided under the Agreement or ApiMoon to any third party, whether for profit or without charge. This does not affect the right of the Client to allow access to and use of ApiMoon to individual Users under the Client Account and the User Accounts in accordance with the Agreement;
9.3.10 implement and maintain industry-standard security processes (including reasonable technical, administrative and physical safeguards) designed to keep all access codes to ApiMoon confidential and to prevent unauthorized use of or unauthorized access to ApiMoon;
9.3.11 refrain from any conduct (including allowing any third party to do so) that would cause building a similar or competitive product of ApiMoon; and
9.3.12 inform the Provider about any unauthorized use of or unauthorized access to ApiMoon and ensure timely invalidation/replacement of the potentially or actually compromised access codes.
9.4 Without an explicit prior written consent of the Provider, the Client shall not, and will not permit any third-party to: (a) use the Derivative Data and/or Provider Data or provide access to the Provider Data and/or the Derivative Data to any third party; (b) remove, modify, or obscure any copyright or proprietary notices contained in ApiMoon, the Derivative Data, and/or Provider Data; (c) access or use ApiMoon to circumvent or exceed ApiMoon account limitations or requirements; (d) obtain unauthorized access to ApiMoon (including without limitation permitting access to or use of ApiMoon via another system or tool, the primary effect of which is to enable input of requests or transactions by other than authorized users); (e) use ApiMoon, the Derivative Data, and/or the Provider Data in a manner that is contrary to applicable law or in violation of any third party rights of privacy or intellectual property rights; (f) publish, post, upload or otherwise transmit any data via ApiMoon that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; (g) transmit spam, chain letters, or other unsolicited communications via ApiMoon; (h) interfere with or compromise the system integrity or security of ApiMoon or any systems running ApiMoon; or (i) take any action that imposes, or may impose, at the Provider’s sole discretion, an unreasonable or disproportionately large load on the Provider’s infrastructure.
9.5 The Client shall indemnify the Provider without undue delay for all harm (including lost profit) suffered by the Provider as a result of the breach of the Client’s obligations and limits pursuant to Article 9.3 of the Terms.
9.6 The Client shall notify the Provider without undue delay of any infringement of the Provider’s intellectual property rights or rights in relation to ApiMoon and, upon request, provide the Provider with all available assistance, which may be reasonably requested, in establishing the Provider’s claim regarding infringement of rights to ApiMoon or the Provider’s other intellectual property rights.
9.7 If the Client becomes aware of any legal action already brought or threatened by a third party related to ApiMoon, such as, but not limited to, third-party intellectual property infringement proceedings or patent claims, the Client shall without undue delay, but in any case, within 15 days after it learns of such legal action, notify the Provider of it. Upon the Provider’s request, the Client shall enable the Provider to participate in a legal defense against such legal action to the maximum extent permissible by applicable law and provide the Provider with all available and reasonably requested cooperation. The Provider shall, in such case, bear the Provider’s costs and fees incurred in the course of negotiations with the claimant or legal proceedings.
9.8 If the Client fails to notify the Provider or invite the Provider to participate in negotiations with the claimant or legal proceedings pursuant to Article 9.7 of the Terms, the Client shall be deemed to have provided an unconditional and irrevocable waiver of any potential claims against the Provider for the Client’s losses, expenses and/or damages arising from legal action against the Client in connection with ApiMoon.
10.1 By submitting the Client Data to the Provider, the Client hereby represents and warrants that it has all rights and licenses necessary to provide the Client Data to the Provider (and the Provider’s employees, other Provider’s coworkers in a similar relationship and contractors in order for them to participate in providing Services) for the purpose of providing Services via ApiMoon. The Client acknowledges and agrees that the Client shall be responsible in the event that any damage or loss of any kind results from the Client’s provision of any Client Data that are not owned or controlled by the Client or in respect of which the Client is not authorized to use such data. The Client is solely responsible for the validity, completeness and correctness of the Client Data.
10.2 The Client Data provided to be processed by ApiMoon must be provided in the format and specification determined by the Provider. Respective information on the required data format and specification is available in the Client Account. The Provider shall not be liable for any failure of the Services caused by providing faulty Client Data or Client data in a different format or specification than required.
10.3 The Client remains the sole owner (or authorized user) of the Client Data with all the rights relating to it. The Provider shall have no right to sell, resell, license, sublicense, assign, or otherwise transfer any Client Data provided by the Client without the Client’s prior written consent. Notwithstanding the foregoing, the Provider may create, collect, analyze, and use the Derivative Data for purposes of operating, analyzing, improving, or marketing the Services and any related services. If the Provider publishes, shares, or discloses any Derivative Data, such data will be aggregated or anonymized to reasonably avoid identification of the Client and protect the Client’s Confidential Information.
10.4 The Provider shall implement and maintain industry-standard information security processes (including reasonable technical, administrative, and physical safeguards) designed to prevent unauthorized access to or use or disclosure of the Client Data.
10.5 The Provider remains the sole owner of the Provider Data and the Derivative Data with all the rights relating to it. The Client shall have no right to sell, resell, license, sublicense, assign, or otherwise transfer any Provider Data or Derivative Data which it processes during the course of using the Services.
10.6 The processing of personal data by the Provider is governed by Privacy Policy which is considered an integral part of these Terms and which is available on the Provider’s website at https:///www.apimoon.com/privacy-policy.
11.1 The Provider agrees to provide the Client and the Users with due technical assistance and support during their proper use of ApiMoon and assistance with their use of the Services. In addition, the Provider shall create and continue to create, during the use of ApiMoon, access details for the Users of ApiMoon as instructed by the Client. The term “technical assistance and support” includes but is not limited to reasonable phone and e-mail support provided by the Provider to the Client, including technical consultations regarding the administration of ApiMoon, including the content thereof, and communication between the Client and the Users on business days from 9 a.m. to 6 p.m. CET.
12.1 EXCEPT AS EXPRESSLY WRITTEN IN THE AGREEMENT, INCLUDING THE TERMS, APIMOON IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, INCLUDING IMPLIED. THE CLIENT ACKNOWLEDGES AND AGREES THAT:
12.1.1 THE CLIENT IS SOLELY RESPONSIBLE FOR ASSESSING AND EVALUATING THE SUITABILITY OF APIMOON FOR THE CLIENT’S REQUIREMENTS;
12.1.2 THE CLIENT SHALL ENSURE THAT APIMOON DOES NOT INTERFERE WITH OTHER COMPONENTS OF CLIENT’S TECHNOLOGY ENVIRONMENT AND THAT IN PARTICULAR, BUT NOT LIMITED TO, ALL COMPUTER HARDWARE AND OTHER SOFTWARE AND FIRMWARE USED IN CONJUNCTION WITH APIMOON IS FREE OF DEFECTS AND DOES NOT ADVERSELY AFFECT THE OPERATION OR PERFORMANCE OF APIMOON;
12.1.3 THE CLIENT SHALL BE SOLELY RESPONSIBLE FOR ALL DATA, INCLUDING IN PARTICULAR PERSONAL DATA, AND OTHER CONTENT UPLOADED USING APIMOON (WHETHER SUCH CONTENT IS UPLOADED BY THE CLIENT, THE USER OR ANY OTHER PERSON OTHER THAN THE PROVIDER) AS WELL AS FOR FULL COMPLIANCE WITH ALL APPLICABLE LAWS, REGULATIONS AND RIGHTS OF THIRD PARTIES, IN PARTICULAR INTELLECTUAL PROPERTY RIGHTS.
12.1.4 THE CLIENT SHALL INDEMNIFY, DEFEND AND HOLD THE PROVIDER HARMLESS FROM ALL CLAIMS MADE AGAINST AND ALL LIABILITIES, REASONABLE COSTS, PROCEEDINGS, DAMAGES AND EXPENSES (INCLUDING REASONABLE LEGAL AND OTHER PROFESSIONAL FEES AND EXPENSES) AWARDED AGAINST, OR INCURRED OR PAID BY, THE PROVIDER AS A RESULT OR IN CONNECTION WITH ANY ALLEGED OR ACTUAL INFRINGEMENT OF ANY LAWS, REGULATIONS OR THIRD PARTYS’ RIGHTS RELATED TO THE CONTENT DISPLAYED ON DEVICES USING APIMOON.
12.1.5 THE CLIENT IS SOLELY RESPONSIBLE FOR SELECTION OF PERSONNEL (IN PARTICULAR, BUT NOT LIMITED TO, THE USERS) THAT WILL BE GRANTED ACCESS TO APIMOON, AS WELL AS FOR PROPER USE OF APIMOON BY AND ANY ACTIONS (OR INACTIONS) OF SUCH PERSONNEL ACCESSING APIMOON;
12.1.6 THE CLIENT SHALL HAVE NO REMEDY FOR ANY FAILURE OF APIMOON UNLESS EXPLICITLY AGREED OTHERWISE WITH THE PROVIDER;
12.1.7 THE CLIENT SHALL HAVE NO REMEDY FOR ANY FAILURE OF APIMOON UNLESS EXPLICITLY AGREED OTHERWISE WITH THE PROVIDER;
12.2 TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL THE PROVIDER BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFIT, LOSS OF REVENUES, LOSS OR CORRUPTION OF DATA, LOSS ARISING FROM BUSINESS OR ACTIVITY INTERRUPTION INCURRED BY THE CLIENT OR ANY THIRD PARTY TO WHICH THE CLIENT PROVIDES SERVICES BASED ON APIMOON IN ACCORDANCE WITH THE AGREEMENT, OR ARISING OTHERWISE FROM USE OR OPERATION OF APIMOON. FURTHERMORE, THE PROVIDER IS NOT LIABLE FOR ANY LOSSES, WHICH COULD NOT BE REASONABLY FORESEEN.
12.3 THE PROVIDER SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES INFLICTED ON THE CLIENT BY (I) ACTS OF ANY THIRD PARTY UTILIZING APIMOON FOR PROVISION OF SERVICES TO THE CLIENT, (II) MALFUNCTION OF OTHER INFORMATION TECHNOLOGY COMPONENTS USED WITH APIMOON IN THE CLIENT’S INFORMATION TECHNOLOGY ENVIRONMENT, (III) NEGLECTING TO MAINTAIN APIMOON (INCLUDING BUT NOT LIMITED TO, FAILURE OF THE CLIENT TO USE THE MOST RECENT VERSION REGARDLESS WHETHER BY INTENT OR OMISSION) OR AS A RESULT OF (IV) PROVIDING INCOMPLETE OR INACCURATE CLIENT DATA OR CLIENT DATA THAT VIOLATED ANY THIRD PARTY RIGHTS.
12.4 THE PROVIDER SHALL NOT BE LIABLE FOR ANY HARM OR DAMAGE INCURRED OR ALLEGEDLY INCURRED BY ANY OTHER THIRD PARTY IN CONNECTION WITH USING APIMOON BY THE CLIENT OR USER, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, PRODUCT LIABILITY, OR TORT (INCLUDING NEGLIGENCE) AND REGARDLESS OF WHETHER THE PROVIDER KNEW OR HAD REASON TO KNOW OF THE POSSIBILITY OF THE DAMAGE IN QUESTION.
12.5 THE CLIENT SHALL INDEMNIFY, DEFEND AND HOLD THE PROVIDER HARMLESS AGAINST ANY AND ALL SUCH LIABILITY, CLAIMS, SUITS, ACTIONS, DEMANDS, AND ANY PROCEEDINGS OF ANY KIND, THREATENED, ASSERTED OR FILED IN THIS CONNECTION AGAINST THE PROVIDER BY ANY THIRD PARTY (“CLAIMS”) AND ANY DAMAGE, LOSSES, EXPENSES, LIABILITIES OR COSTS INCURRED INCLUDING ATTORNEYS’ FEES, IN CONNECTION WITH SUCH CLAIMS RAISED AGAINST THE PROVIDER.
12.6 THE PARTIES AGREED THAT IN ANY EVENT THE LIABILITY OF THE PROVIDER FOR ANY HARM (EXCEPT FOR HARM CAUSED AS A RESULT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) ARISING OUT OF A BREACH OF THE AGREEMENT OR FOR ANY CAUSE WHATSOEVER SHALL BE FOR DIRECT DAMAGE ONLY DUE TO PROVABLE BREACH OF THE PROVIDER’S OBLIGATIONS. IN ADDITION, THE PARTIES AGREED THAT ANY SUCH LIABILITY OF THE PROVIDER (EXCEPT FOR LIABILITY FOR HARM CAUSED AS A RESULT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) SHALL BE LIMITED TO THE FEE (OR SUM OF THE FEES) ACTUALLY PAID BY THE CLIENT TO THE PROVIDER IN THE CALENDAR YEAR IN WHICH THE ALLEGED DAMAGE OCCURRED; THIS LIMIT SHALL APPLY IN AGGREGATE TO ANY DAMAGE ALLEGEDLY INCURRED BY THE CLIENT IN THE RESPECTIVE CALENDAR YEAR.
12.7 THE CLIENT ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS AND INDEMNIFICATION OBLIGATIONS CONTAINED IN THIS ARTICLE 12 ARE REASONABLE IN THE LIGHT OF ALL THE CIRCUMSTANCES.
13.1 THE CLIENT EXPRESSLY AGREES THAT THE USE OF APIMOON IS AT THE CLIENT’S OWN RISK. ALL LICENSED SOFTWARE, INFORMATION AND MATERIALS PROVIDED BY PROVIDER ARE PROVIDED “AS IS”. EXCEPT AS PROVIDED IN THE AGREEMENT THE PROVIDER SPECIFICALLY DISCLAIMS ALL WARRANTIES, INCLUDING IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM OR USAGE OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, THE PROVIDER MAKES NO WARRANTY OF ANY KIND THAT APIMOON, OR ANY RESULTS OF THE USE THEREOF, WILL MEET THE CLIENT’S, USER’S OR OTHER PERSONS' REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. THE PROVIDER DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, OF ABSENCE OF ACTUAL OR POTENTIAL CONFLICT WITH THIRD PARTIES’ INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THE CLIENT’S OR USER’S USE OF APIMOON.
14.1 The Provider and the Client each agree to retain in confidence all non-public information and know-how disclosed pursuant to or in connection with the Agreement (the “Confidential Information”). Confidential Information shall always include (i) the Services, the Derivative Data, the Provider Data, and the terms and conditions of the Agreement as the Provider’s Confidential Information, and (ii) the Client Data as the Client’s Confidential Information. Confidential Information also includes all information regarding the negotiations and performance of the Agreement, all kinds of information recorded orally, in writing, electronically or otherwise, including any notes, records, reports, studies, analyses, proposals, correspondence, lists, databases (mainly regarding products, clients and business cases), software, memory media, specifications, diagrams, audio recordings, compilations, projects, data, copies, records or other documents regarding past, present or future facts, transactions, plans or operations) of which the Parties learn or which they acquire before or during their mutual cooperation.
14.2 Each Party agrees to: (a) preserve and protect the confidentiality of the other Party’s Confidential Information; (b) refrain from using the other Party’s Confidential Information except as contemplated in and in compliance with the Agreement; and (c) not disclose such Confidential Information to any third party except to employees, advisers and subcontractors as is reasonably required in connection with the exercise of the Party’s rights and obligations under the Agreement and its fulfilment and only subject to binding use and disclosure restrictions at least as protective as those set forth in the Agreement, including the Terms.
14.3 Each Party agrees to immediately notify the other Party of any unauthorized disclosure or use of any Confidential Information and to assist the other Party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested. Notwithstanding the foregoing, either Party may disclose Confidential Information of the other Party which is: (i) already publicly known without breaching the Agreement or any other legal confidentiality obligation; (ii) discovered or created by the receiving Party without use of, or reference to, the Confidential Information of the disclosing Party, as shown in records of the receiving Party; (iii) otherwise known to the receiving Party through no wrongful conduct of the receiving Party, or (iv) required to be disclosed by law or court order, provided that the receiving Party shall provide prompt notice thereof and reasonable assistance to the disclosing Party to enable the disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, either Party may disclose any Confidential Information hereunder to such Party’s agents, advisers, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as reasonably required to resolve any dispute between the Parties.
14.4 The obligation to maintain Confidential Information as confidential in the sense of this Article 14 survives the expiration of the Agreement by seven years after the expiration.
14.5 The Provider shall be entitled to use the Client’s brand, name and general information on the scope of Services provided as a reference. Such limited use shall not be deemed as breaching the confidentiality obligation above.
15.1 The Agreement shall become effective as of the Effective Date specified in the Order Form and shall continue in force for the whole Term unless terminated earlier as provided in the Agreement.
15.2 Each of the Parties may terminate the Agreement without liability to the other Party by delivering a written termination notice to the other Party at least 2 months in advance and the Agreement terminates based on such termination notice upon the end of the current Billing Period.
15.3 Without prejudice to any other rights or remedies to which the Parties may be entitled, either Party may terminate the Agreement without liability to the other Party by a written termination notice if:
15.3.1 the other Party commits a material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of the breaching Party being notified in writing of the breach;
15.3.2 an order is made or a resolution is passed for the winding-up or liquidation of the other Party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of such Party;
15.3.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other Party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of such Party, or notice of intention to appoint an administrator is given by such Party or its directors;
15.3.4 a receiver is appointed of any of the other Party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of such Party, or if any other person takes possession of or sells such Party’s assets;
15.3.5 the other Party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt;
15.3.6 the other Party ceases, or threatens to cease its activities; or
15.3.7 the other Party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
15.4 For clarity, the Parties have expressly agreed that the obligation of the Client to pay the fees or make other payments pursuant to the Agreement in favor of the Provider with respect to Services provided by the Provider to the Client prior to the termination of the Agreement shall not be affected by the termination of the Agreement.
15.5 The termination of the Agreement shall not entitle the Client to any reimbursement of any fees paid to the Provider or any other compensation or discount. Notwithstanding the previous sentence, if the Agreement has been terminated by the Provider and the Services have not been provided for the entire period for which the Client has prepaid respective fees, and unless the Agreement was terminated due to the Client’s material breach of the Agreement (in particular, but not limited, because the Client is in default with payment of any amount according to the Agreement), the Provider shall reimburse to the Client a pro rata portion of the prepaid fees corresponding to the extent in which the Services have not been provided in the respective period of time.
15.6 If this Agreement is terminated by either Party, the Client shall immediately discontinue any further use of ApiMoon and upon request enable inspection by the Provider’s representatives to verify its compliance with this provision.
16.1 The Agreement consisting of the Order Form and these Terms (together with their schedules and appendices and including the Privacy Policy) represents the entire agreement between the Parties, and supersede all prior agreements and understandings, written or oral, with respect to the matters covered by the Agreement, and is not intended to confer upon any third party any rights or remedies hereunder. The Client acknowledges that it has not entered in the Agreement based on any representations other than those contained herein.
16.2 No amendment or any other variation of the Agreement shall be effective unless it is in writing and signed (including electronically via on-line means and tools) by the Parties (or their authorized representatives), unless the Agreement, including the Terms provide otherwise (see Article 16.3 of the Terms).
16.3 The Provider reserves the right, in its sole discretion, to amend, modify, supplement or otherwise change these Terms at any time and for any reason. The Provider shall inform the Client about any such change at least 30 days in advance of the effective date of the changes, by sending the updated Terms to the Client via e-mail addressed to the Admin User. The Client shall review the information posted on the Provider’s website https://www.apimoon.com/ terms-and-conditions and in the Client Account periodically to stay informed of all announced changes. If the Client does not agree with the announced changes, the Client shall be entitled to terminate the Agreement by delivering a written termination notice to the Provider before the effective date of the changes. In such a case, the Agreement shall terminate upon expiry of the current Billing Period and the relationship between the Parties for the remaining period shall continue to be governed by the current Terms, i.e., their version before the change. If the Client does not terminate the Agreement in accordance with the above, the Client will be deemed to have agreed with the announced changes and will be bound by them. Any new version of the Terms supersedes their previous version as of the date of effectivity of the new version.
16.4 No Party shall be deemed to be in breach of the Agreement for any failure or delay in performing its obligations under the Agreement as a result of an act of Force Majeure or entitled to compensation for any losses or damages caused by the act of Force Majeure.
16.5 No failure or delay by a Party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16.6 If any provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable within its original meaning and in accordance with its original purpose. If such modification is not possible, the relevant provision shall be deemed deleted. Any modification to or deletion of a provision under this Article shall not affect the validity and enforceability of the rest of the Agreement. In addition, the Parties shall negotiate in good faith to amend such deleted provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended result of the original provision.
16.7 The Agreement shall be governed by the laws of the Czech Republic. The Parties hereby agree that any and all disputes and litigation arising out of or in connection with the Agreement shall be subject to the exclusive jurisdiction of the competent courts of the Czech Republic determined according to the registered office of the Provider.
16.8 Neither Party shall, without the prior written consent of the other Party, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Agreement.
16.9 In the event that the Client’s business or a part thereof is transferred, or the Client’s business or a part thereof is leased or subleased, this Agreement and the rights and obligations arising out of it shall pass onto the legal successor of the Client only with the prior written consent of the Provider.
16.10 In case of discrepancies between the Order Form and these Terms, the Order Form shall prevail.