General Terms

1. These Business Terms and Conditions are between the Client and

   eWay System LLC, One Kansas City Place, 1200 Main Street, Suite 2110, Kansas City, MO 64105 if the Client is based in the United States

   or, with
   eWay System s.r.o., Na Kralovce 31/4, 101 00 Praha 10, Czech Republic, European Union if the Client is based outside the United States.

   These Business Terms and Conditions shall apply to the relationship between the Provider and the Client regarding eWay-CRM® (the “Software”).

   A) For eWay-CRM® Free:
   
   The term “Agreement” as used herein shall refer to the provision of the Software licensing rights (the “License”) as set forth in (i) these Business Terms and Conditions, (ii) the Privacy Policy.

   B) For eWay-CRM® Basic, Professional, Enterprise, or Premium:
   
   The term “Agreement” as used herein shall refer to the provision of the Software licensing rights (the “License”) as set forth in (i) the Purchase Order; (ii) these Business Terms and Conditions; (iii) the Service Level Agreement; and (iv) Privacy Policy.

2. The Client is an entity and/or individual that has entered into a contractual relationship with the Provider as a result of a written agreement between the parties, e.g., Purchase Order, and/or the terms accepted as a condition for the download and/or installation of the Software.

License and Related Obligations of the Parties

3. A) For eWay-CRM® Free:
   
   The License shall be valid for thirty (30) days beginning of the earlier date of installation or the date of acceptance of these terms, and further, shall be valid for nine hundred ninety nine (999) users of the Software; provided, however, that the License for eWay-CRM Free shall automatically renew at the end of each thirty (30) period until canceled by either party for any reason or no reason.
   
   B) For eWay-CRM® Basic, Professional, Enterprise, or Premium:
   
   The Provider hereby issues to the Client a non-exclusive license to use the Software under the terms of Purchase Order and this Business Terms and Conditions and the Client shall accept this non-exclusive license and agree to pay the License Fee. The Client is entitled to use the Software worldwide and, in the event of purchasing a Lifetime License, for the lifetime of the product (if not terminated earlier) which shall be construed to mean an indefinite period limited only by the functionality of the Software and its “moral” lifetime. For a Monthly Subscription license, the above shall apply for the duration that the Client satisfies its obligations set forth in Purchase Order, this Business Terms and Conditions, the Service Level Agreement, and Privacy Policy in a timely manner. The type of license (Lifetime, Monthly, Annual, etc.) depends on the terms accepted by the Client and Provider as set forth in the Purchase Order.
4. The Client is authorized to use the Software solely for its own needs and/or for presentation to customers. The Client is authorized to install and/or use the Software on individual devices exclusively in the number of purchased and paid user licenses according to the terms accepted by the Provider. In this context, the Client may acquire copies of the Software solely to protect its archives or for replacing rightfully acquired Software that has been lost, destroyed, or otherwise corrupted. The Client is not authorized to, without the consent of the Provider, in any manner to alter the Software or its code, make the Software and/or its code available to third parties, translate it to other programming languages, or incorporate it into any other software product (or work), grant other legal or natural persons authorization to use the Software, transfer or assign the license to a third party, reproduce and distribute the Software, rent, lease and dispose of it in a manner other than specifically permitted herein.
5. For eWay-CRM® Basic, Professional, Enterprise, or Premium:
   
   The Provider will begin to fulfill its obligations set forth in the Purchase Order upon satisfaction of the Client’s payment of the amount due.
6. The Client is obliged to cooperate with the Provider so that Provider may fulfill its requirements. A breach by the Client of its duties in this Paragraph shall be considered a serious breach. The Client is required to communicate with the Provider and disclose requested information, allow the Provider access (on-site or remotely) to the servers and individual stations (computers), provide necessary information for system set-up, and take any additional steps requested by Provider.

Cloud / Data Hosting

7. The following shall apply to data resulting and/or arising from the Client’s use of the Software, e.g., e-mail message, journal entry, metadata, etc. (“Client Data”) when stored on servers of the Provider’s hosting partners:
   1. Server Location: Client Data is stored on the servers (collectively, “Server”) maintained by
      1. OVH US LLC, located in Virginia, United States of America (us.ovhcloud.com);
      2. Cloud4com s.r.o., Czech Republic, European Union (www.cloud4com.com); or

      The provider will choose a Server to store the Client Data based upon the location of the Client as provided by the Client in the Agreement.

      For Clients located in North America, Client Data will be stored on a Server maintained by OVH US LLC.

      For Clients located in the European Union, Client Data will be stored on a Server maintained by Cloud4com s.r.o.

      For Clients not located in the European Union or North America, Client Data will be stored on a Server closest to the Client’s stated location.

      At the Provider’s sole discretion, and with notice to the Client, the Provider may migrate and store Client Data on any Server owned and/or maintained by any entity as permitted by the laws of Provider’s country and/or by the laws of any sovereign in which Provider is permitted to operate.

   2. Capacity: Client Data stored on the Server shall be limited to 10 GB for eWay-CRM® Basic or eWay-CRM® Premium, to 25GB for eWay-CRM® Professional, to 50GB for eWay-CRM® Enterprise, or to 200 MB for eWay-CRM® Free. If the Client Data exceeds the permissible limit, then the Client must delete some or all of the Client Data or request the Provider to increase the capacity in excess of the Server Capacity for an additional fee based upon current prices.
   3. Backup: The Provider shall only be responsible for keeping a backup of Client Data for 2 weeks. At the end of 2 weeks, Provider automatically deletes the backup of Client Data and, for security purposes, such Client Data is no longer recoverable.
   4. The legality of Client Data:Client warrants to Provider, and further, agrees to indemnify Provider for costs incurred as a result of the allegation(s) that the Client Data violates any criminal, civil, and/or regulatory laws or rules in the Client’s jurisdiction, Provider’s jurisdiction and/or the jurisdiction of where the Server is located. This indemnification shall include, but not be limited to, all direct and indirect costs incurred by Provider and third parties, e.g., attorney’s fees, costs associated with responding to subpoenas, etc., as well as actual damages, fines and restitution. If the Client has a question about the legality of Client Data in any one or more jurisdictions, the Client shall be responsible for making this determination. The Client is also responsible for keeping only the data of Data Subjects that meet GDPR requirements.
   5. Third-Party Request: If a third-party requests records related to the Client, including but not limited to Client Data (“Third Party Request”), the Provider will make commercially reasonable efforts, to the extent allowed by law, to promptly notify the Client of receipt of such Third-Party Request. Unless Provider is obligated by law, Client is solely responsible for responding to Third Party Requests via its own access to information. The Client will seek to obtain the information required to respond to Third Party Requests and will contact the Provider only if it cannot obtain such information despite diligent efforts. Absent written permission from Client, Provider shall only comply with Third Party Requests if required by law. All costs, including attorney’s fees, associated with the Provider’s fulfillment of its obligations and legal duties shall be paid by the Client.
   6. Security: The Client understands and agrees that the Provider uses CLOUDFLARE (provided by Cloudflare, Inc., 101 Townsend St, San Francisco, CA 94107, USA) to add additional security to the communications between the Server and the Client’s individual devices (PCs, smartphones, tablets, etc). CLOUDFLARE provides security similar to a firewall. CLOUDFLARE Business Terms and Privacy Policy are available at https://www.cloudflare.com/privacypolicy/.

Price and Payment Terms

8. A) For eWay-CRM® Free:
   
   The License is provided to the Client for free for the specified period.
   
   B) For eWay-CRM® Basic, Professional, Enterprise, or Premium:
   
   The prices for the License Fee, Professional Services and System Support are listed in the current pricelist unless otherwise specified in the Purchase Order.Invoices will be issued per the terms set in the Agreement. All invoices shall be paid within 14 days from the date of issue. For automatic, recurring payments through PayPal / Credit Card, the Provider will automatically charge the agreed-upon amount before the new Subscription Period.Invoices for System Support hours shall be issued on the last day of the month in which the services were provided. The Provider shall issue an invoice identifying the payment terms and the Provider’s account information to which payments shall be made.To the extent that the Client disputes any charges on the invoice, then the Client may return the invoice without payment within 5 business days. The Client must state the reasons for which the invoice was returned. The Provider may, according to the nature of the issue, either correct the invoice and issue a new one or take no action at all. At the sole discretion of the Provider, and per the terms stated herein, the Provider’s issuance of a new invoice renders the previous invoice invalid. A new payment deadline is set from the day the Client is presented with a corrected or newly issued invoice. If the claim was not duly made or filed on time or the Provider declines to issue a new invoice, then the Client shall be deemed to have accepted the charges shown on the original invoice and committed to paying the amount shown. The Client’s obligation is fulfilled when payment in full is credited to the Provider’s account.
9. The current prices are listed in the pricelist unless otherwise specified in the Purchase Order. The Provider reserves the right to change prices at any time and new prices will become binding for the Client 30 days following notification of new prices provided the Client does not reject them within these 30 days. If the Client rejects the price change, both Parties are entitled to withdraw from the Agreement which shall expire three months after receipt of the withdrawal notice.
10. A) For the eWay-CRM® lifetime license:
    
    The System Support Fee is calculated as 15% multiplied by the current price of all purchased licenses based on the current price list posted on the Provider´s web page. In case of changes to the license price, the System Support Fee will change accordingly for the next Subscription Period. The System Support fee for a new user(s) is prorated based on the time remaining until the end of the currently running Subscription Period.
    
    B) For the eWay-CRM® Monthly License or Annual License:
    
    The Agreement regarding the provision of System Support is for an indefinite period. In case the Client purchases a Monthly Subscription of the Software, the contract on the provision of the System Support is for the same period as the Software License. The System Support is renewed automatically with the frequency specified in the Purchase Order in Part II. B. Subscription Period. Any Party can cancel the automatic renewal of the contract regarding System Support per the terms and conditions of the Agreement.
11. If the Client fails to satisfy a monetary obligation per the Agreement, an additional fee of 0.05% multiplied by the outstanding amount will be charged for each day of the delay. This penalty is in addition to and shall not diminish any other right to compensation for any damage.
12. The Client is responsible for all applicable taxes and the Provider will charge the Client for these taxes when required to do so.

Data Processing and Clients’ Consents

13. Data processing is set forth in this paragraph and the Privacy Policy (posted at www.eway-crm.com). These obligations of the Parties are based upon what is commonly known as the “General Data Protection Regulation” or “GDPR”. The specifics of GDPR may be found in the REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016 on the protection of natural persons about the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation). GDPR defines certain terms including, but not limited to, the data subject, data controller, data processor, personal data, sensitive data, and data processing, and such definitions shall apply to the terms as used in this Paragraph 13 unless otherwise indicated. These obligations include:
    1. The relevant Party is solely responsible for obtaining consents from the data subjects and passing such consents along with the personal data to the other party in cases where such consent is required. For purposes of the Software, the Client is responsible for obtaining consents of the data subjects whose personal data is being processed by the Provider.
    2. b. The purpose of the personal data processing is to allow the Client to properly use the Software and/or for any other reason agreed between the Provider and the Client. No party will use personal data other than for agreed-upon reasons. No Party will process sensitive data.
    3. c. Personal data that is being processed by the Distributor and the personal data that is being processed by the Client will include at a minimum – first name, last name, VAT/tax authority identification number, address, email address, telephone number, bank account number, and industry.
    4. Personal data may only be processed while the Agreement is valid; provided, however, that upon the termination of the Agreement, the parties must still comply with all obligations regarding security and data protection.
    5. The party representing the data controller (“Controller”) is obliged to make sure that:
       1. personal data is processed in compliance with GDPR and related legislation;
       2. the data subjects received all the information required by articles 13 and 14 of the GDPR.
    6. The party representing the data processor (“Processor”) is obliged as follows:
       1. to refrain from engaging another Processor without the prior specific or general written authorization of the Controller. In the case of general written authorization, the Processor shall inform the controller of any intended changes concerning the addition or replacement of other processors, thereby allowing the controller to object to such changes. The Provider can engage other Processors as set forth in the Privacy Policy.
       2. to ensure that personal data is only processed based upon documented instructions from the controller (this provision includes the transfer of personal data to a third country or an international organization);
       3. to ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
       4. to take all measures required by Article 32 (GDPR) regarding personal data protection;
       5. taking into account the nature of the processing, to assist the Controller by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of the Controller’s obligation to respond to requests for exercising the data subject’s rights;
       6. to ensure that automated data processing (if there is any) may only be operated by authorized persons with access limited to fulfill their job duties with the Provider;
       7. to ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality; and
       8. to make available to the Controller all information necessary to demonstrate compliance with the obligations set forth in this paragraph, and further, to allow for and contribute to audits conducted by the Controller or another auditor mandated by the Controller.
    7. Both parties are obliged to:
       1. implement appropriate technical and organizational measures in such a manner that data processing will meet the requirements of GDPR and ensure the protection of the rights of the data subject and be able to demonstrate that processing is performed in accordance with GDPR. Those measures shall be reviewed and updated where necessary.
       2. within 72 hours of receiving notice of a personal data breach, notify the appropriate supervisory authority under Article 55 (GDPR), unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons. Each party must inform the other party about all important matters that affect the fulfillment of the Agreement;
       3. maintain the confidentiality of the personal information and security enhancements at the requested level of protection even if the Agreement is terminated; and
       4. proceed under other requirements of the GDPR and the law of the Provider’s country by following the general data protection principles and subject data rights, fulfilling information duties, and not disseminating personal data to third persons without necessary consents.
14. To identify companies and related information, the Software includes within the Companies module the ability to utilize the Company Name or Company Identification Number. Providers uses ARES (wwwinfo.mfcr.cz/ares/ares_es.html.cz), ORSR (www.orsr.sk) and VIES (ec.europa.eu/taxation customs/vies/vieshome.do) to obtain such information. The Provider cannot guarantee the availability, accuracy, completeness, reliability, or timeliness of such information.
15. The Client agrees to allow its name to be used as a reference in promotional materials and during Provider events.
16. The Client agrees that the Provider can send to the Client from time to time up-to-date instructions on how to use eWay-CRM®.
17. The Client confirms that all the credentials it provided and will provide with regards to this Agreement are true, complete, and accurate. The Client is entitled to use the Software provided that there are no violations of applicable laws and the Client is prohibited from using the Software in violation of any applicable laws.

“Professional Emails” in the Marketing module

18. The Provider offers a service called “Professional Emails” in the Software module entitled “Marketing Campaigns” that allows Clients to send bulk emails. The Provider has entered into an agreement with a third-party vendor “Commerce Media s.r.o., Lovosicka 711/30, Prague 9, 190 00, Czech Republic” to offer this service to Provider’s clients. Professional Emails can be purchased as an additional service from the Provider.
19. Once the Client pays for and activates Professional Emails as required, the Provider will obtain from Commerce Media on behalf of the Client the right to use Professional Emails for a specific time. The Client shall only use Professional Emails under the business terms and conditions set forth herein.
20. The Client understands and agrees to the following Professional Emails business terms:
    1. to use the Professional Emails only for the reason it was made for;
    2. to access and use Professional Emails only through the user interface provided within the module Marketing Campaigns;
    3. to protect all usernames and passwords granted by the Provider to the Client to access and use Professional Emails;
    4. if Client has to reason to believe that its username and password could be comprised to immediately notify Provider in writing of the same.; and
    5. to obtain email consents when required (for example to meet all the applicable legal requirements).
21. The Client understands that:
    1. Professional Emails are designed to meet the requirements and legislation of the European Union. In case the Client intends to use the Professional Email outside the European Union, the Client acknowledges and agrees that it must meet all applicable legal requirements in the appropriate jurisdiction(s); and
    2. to use Professional Emails, the Provider has to provide the Client’s credentials and the Client’s data to Commerce Media s.r.o. (located in the European Union) for processing.
22. The Client understands that it is prohibited from:
    1. obtaining usernames and passwords for which it is not authorized to possess;
    2. copying, distributing, displaying, executing publicly, making available to the public, reducing to human-readable form, decompiling, disassembling, adapting, sublicensing, making any commercial use, selling, renting, lending, processing, compiling, reverse engineering, combining with other software, translating, modifying or creating derivative works of any part of the Software or Professional Emails or trying to hack or destabilize the data or use of the Software or Professional Emails;
    3. sending unwanted emails (spam, hoax, etc.), viruses, or any content, that violates the law, bothers other people, can be considered an aggressive selling act, or harms good manners;
    4. trying to create an impression that Professional Emails were used by a company and/or person other than the Client;
    5. using Professional Emails to exchange data via Peer to Mail (for example peer2mail, OpenP2M, etc.); and/or
    6. passing any data to the Provider that violates the intellectual property, and fair trade practices, and promotes illegal actions (drugs, child pornography, xenophobia, racism, groups that suppress human rights, religion, etc).

AI Features in the Software

23. AI Features in the Software (“AI Features”) are ALWAYS physically computed on the servers of the Provider’s hosting partners (see section Cloud / Data Hosting).
24. If the server component is installed on the Client’s server, to use AI Features, Client Data will be copied onto the servers of the Provider’s hosting partners.

    The Client is fully aware of such a data transfer and agrees.

25. AI Features only use the Client Data to process a request. After the Client Data is processed, the Client Data is deleted and it’s not retained/used for any other purpose, e.g. training.

Acknowledgment of Delivery

26. Upon Software installation, the Software contacts its server database.
    
    A) For eWay-CRM® installed on the Provider’s Cloud:
    
    If the server database is run on the server of the Provider’s hosting partner, the successful connection of the PC and server component is considered a successful fulfillment of the Provider’s obligations.
    
    B) For eWay-CRM® installed on the Client’s Server:
    
    If the server component is installed on the Client’s server, the Client is required to confirm the functionality of the Software by signing a document entitled “Acknowledgement of Delivery” which the Provider will submit to the Client. The Acknowledgment of Delivery confirms that the Provider has fulfilled its obligations, The Client shall submit its objections, if any, within 5 business days of the Provider sending the Acknowledgement of Delivery. If the Client does not respond and/or does not submit any objections within 5 business days of the Provider sending the Acknowledgment of Delivery, then the Client shall be deemed to have accepted the Provider’s performance of the services referenced therein without defects.

Guarantee

24. Provider shall not be held responsible for any damage to the customer of the Client or to the Client or to any other third party, and further, the Client shall indemnify Provider for any costs, including third-party fees, incurred by Provider (for example, but not limited to the attorney fees, IT vendor fees, etc).

Confidentiality

25. The Parties agree that all information obtained in the course of the business relationship arising from the Agreement shall be considered confidential and trade secrets of the other Party. Both parties undertake to preserve the confidentiality of all information concerning the business and operations of the other Party, including information about customers, products, processes and plans, pricing strategies, etc. This provision does not apply to information or facts that are publicly accessible or that may become so otherwise than as a result of a breach of contract, or except in instances where such communication of protected information comes as a result of fulfilling obligations imposed by law, or when the Party concerned has granted prior written and explicit consent to do so.

Agreement Termination

26. Upon proper notice being given, the Agreement may be terminated by the parties for the reasons and subject to the limitations set forth below, with one month’s notice.
27. The Client is entitled to withdraw from the Agreement for reasons including, but not limited to:
    1. the Provider interrupts the Software installation process or the provision of services without due cause and does not remedy the issue within a reasonable period upon being notified by the Client;
    2. justified insolvency proceedings are brought against the Provider;
    3. the Software installation and the provision of services will be delayed for more than 30 days; and/or
    4. the Software repeatedly presents serious defects preventing the Client from using the Software for the purposes documented in the Software documentation.
28. The Provider is entitled to withdraw from any or all provisions of the Agreement, in its sole discretion, for any reason including but not limited to:
    1. the Client is more than 21 days in arrears for any amounts owed to the Provider (note that if the Client is in arrears with payment for provided licenses and/or services or parts thereof for a period longer than 7 days, the Provider may limit services or suspend functionality.);
    2. if the Client fails to collaborate with the Provider;
    3. if the Client violates any terms of the Agreement and this fact is not remedied within a reasonable period after written notice is given to the Client by the Provider; and/or
    4. if the Client uploads illegal data onto eWay-CRM® hosted on the Provider’s servers or servers of the hosting partner of the Provider.

    In all such cases, the Provider shall not be held responsible for any damage to the customer of the Client or to the Client or to any other third party, and further, the Client shall indemnify the Provider for any costs, including attorney’s fees, incurred by Provider.

29. For eWay-CRM® Free:
    
    The Provider may withdraw from the Agreement if the Provider does not detect any interaction by the Client with the Software Server database (i.e. creates, edits, or deletes an item) for 3 months. In such a case, the Provider may delete the Client’s data with NO BACKUP. The Client understands the risk and takes any steps necessary to protect his/her Client Data.
30. In the event of withdrawal from the Agreement, the contractual relationship expires upon receipt of the notice of withdrawal, and the Provider will not return any amounts paid. In case the Client used to use the eWay-CRM® lifetime license, the Client is obliged to uninstall the Software.
31. The Agreement termination does not affect rights and duties that should (by their nature) remain valid even if the Agreement is canceled, especially:
    1. The Client has to pay fines in case he/she violates the licensing terms;
    2. keep the confidentiality;
    3. follow the data protection rules.
32. For eWay-CRM® lifetime license:
    
    In the event of termination of the Agreement due to a violation of the Agreement by the Client, and the Provider has not yet fulfilled his obligations, the Client will be required to pay the Provider for the work performed to date.
33. For eWay-CRM® Basic, Professional, Enterprise, or Premium:
    
    In the event of termination of the Agreement due to a violation of the Agreement by the Client, and the Provider has not yet fulfilled his obligations, the Client will be required to pay the Provider for the work performed to date.

Sanctions

34. Notwithstanding any other penalties set forth in this Agreement, the Client acknowledges and agrees that the following violations shall result in additional penalties if such violations are not rectified within a reasonable period after notice is given: (a) activating licenses in excess of the number of licenses ordered, an amount equal to USD 2,500 multiplied by the number of licenses activated in excess of the number of licenses ordered and (b) or USD 10,000, if the Client copies a Software server component (i.e. part of the Software installed on the server of the Client, Provider, or a third party).

Other Provisions

35. Unless otherwise set forth herein, the contractual relationship, rights, and obligations of both Parties shall be governed by the relevant provisions of the laws of the Czech Republic. In the event of a dispute, the parties agree that such a dispute shall be settled exclusively by the courts of the Czech Republic, according to its legislation and with the fact that the court with territorial jurisdiction shall be the general court of the Provider.
36. Documents may be delivered in person, by post, or email to the address listed herein. In the event of a change in contact information, the concerned Party shall give written notice to the other Party without delay. Documents shall be deemed to have been received within seven days after sending even if either of the Parties rejects or otherwise precludes delivery. Shipments to the Provider shall be delivered primarily to the email address of the Provider [email protected] and shipments to the Client shall be delivered to the email address of the Client, which has been conveyed to the Provider.
37. This Agreement constitutes the entire agreement between the Parties, on the subject matter hereof, and supersedes all prior understandings between the parties, written or oral.
38. Subject to the terms therein, the Purchase Order, the Service Legal Agreement, and Privacy Policy may only be modified in written form and can be sent by email at the address provided in the contact header. The Business Terms and Conditions are posted at www.eway-crm.com. While the Provider will make best efforts to notify the Client of any proposed changes to the Business Terms and Conditions at least 30 days before such changes go into effect, the Provider may modify the Business Terms and Conditions without notification to the Client, and further, the Client agrees to be bound by such modifications.
39. The invalidity of one or more provisions does not invalidate the contract as a whole. If any provision of the contract or terms and conditions is or becomes invalid or unenforceable, the Parties shall undertake to replace it with a new provision that is nearest to it in content.