General conditions of sale and use
Last updated: 22/08/2022
These general terms of service (hereinafter the "General Terms") are concluded between Maikai Technology Ltd (hereinafter referred to as "The Company") and its Customers (hereinafter referred to as the "Customer"); individually referred to as a "Party" and collectively referred to as the "Parties".
Contract: set of documents including any Order and these General Terms. The signing of the Order implies the Client's unconditional acceptance of the General Terms. This Contract shall prevail over any other general or specific terms not expressly agreed to by the Company. The Company reserves the right to modify the General Terms at any time. In any case, substantial modifications made to the Services and financial terms by the Company will be notified to the Customer and in case of written refusal by the Customer within 30 calendar days from the receipt of the notification, the General Terms applicable will be those in force on the date of the Order signed by the Customer.
Confidential Information: (i) any information communicated by one Party to the other Party or obtained by the other Party, regardless of its nature and medium, written or oral; (ii) including, but not limited to, Client Data, all industrial, marketing, commercial, strategic, or financial information, as well as all data and elements likely to be protected under intellectual property rights - protected or protectable - or under the secrecy of business and/or know-how related to the Services.
Documentation: documents made available to the Client by the Company online via the website or any other web address communicated by the Company to the Client from time to time, which sets forth the description of the Service.
Force Majeure: refers to an event beyond the reasonable control of the affected party, including, but not limited to, epidemics, pandemics, limited public health emergencies such as lockdowns preventing the normal course of business, natural disasters, wars, riots, civil disturbances, malicious damage, compliance with a law or governmental order, rule, regulation or directive, accident or breakdown of facilities or machinery not due to the negligence of the Affected Party, fire, flood and storm, power outages/electricity failures, computer failures not due to the negligence of the Affected Party.
Order: contractual document containing the specific conditions and/or information related to the Client's order, such as the identity of the Client, User Subscriptions subscribed by the Client (if any), as well as any specific commercial, financial, and/or legal conditions agreed upon.
Platform: software platform known as owned and managed by the Company and which will be made available to the Client as a software-as-a-service solution via the Internet under this Contract, as more fully described in the Service Description.
Software: the online software applications available on the Platform provided by the Company as part of the Service.
Service(s): the subscription services provided by the Company to the Client under this Contract via the Platform or any other website notified to the Client by the Company from time to time, as more particularly described in the Documentation in consideration of the fees paid by the Client in accordance with this Contract.
User Subscriptions: user subscriptions ordered by the Client through the Order which allow Users to access and use the Service and Documentation under this Contract.
Virus: any element or device (including any software, code, file, or program) that may: prevent, alter, or adversely affect the operation of any software, hardware, or computer network, any telecommunication service, equipment, or network, or any other service or device; prevent, alter, or otherwise harm the access or operation of any program or data, including the reliability of any program or data (whether by rearranging, altering, or deleting the program or data in whole or in part, or otherwise); or harm the user experience, including worms, Trojan horses, viruses, and other similar elements or devices.
These Terms and Conditions define the technical, legal, and commercial conditions for the access and use of the Service by any internet user. The provision of the Service is subject to the Client's full compliance with these Terms and Conditions.
These Terms and Conditions govern the relationship between the parties for the duration of the Clients' use of the Services and subscriptions as defined in the Order or, if not specified, the last indicated date of platform or services usage. A duration extension may be provided in case of a mission extension and as stipulated in the Order.
4. COMPANY OBLIGATIONS
Service. The Company will provide the Service and make available to the Client up-to-date and compliant documentation under the terms of these Terms and Conditions and grant the Client a non-exclusive and non-transferable right allowing Authorized Users to use the Service and Documentation, during the Service duration, solely for the agreed activities and under the conditions set forth in this document.
Support. The Services include assistance allowing the Client to report and track incidents via the Company's platform. This web portal is available 24/7, except (i) for scheduled maintenance performed during the maintenance window from 10:00 PM to 8:00 AM Cyprus time; and (ii) unscheduled maintenance performed outside working hours.
The foregoing will not apply in situations of (i) non-compliance caused by the use of the Service in violation of the rules and conditions of use set forth in the Company's documentation or modification or alteration of the Service by any party other than the Company (ii) nor in case of delays and/or delivery failures, or any other problem resulting from data transfer on communication networks and facilities, including the Internet. The Client acknowledges that the Service and Documentation may be subject to limitations, delays, or other problems inherent to the use of such communication means.
The Company does not guarantee that the assistance provided by the Company will resolve all incidents reported by the Client or the recurrence of such incidents or that other incidents will not occur as a result of said Service. The Company reserves the right not to respond to an assistance request that does not comply with the terms of this section.
Compilation. The Company will make all reasonable efforts to ensure access to services at all times. The parties acknowledge and agree that: (i) credits and refunds will be the sole and exclusive remedy of the client in case of any loss they would otherwise suffer by making payment of fees related to services subject to a service failure; and (ii) credits and refunds are not exclusive of any right or remedy of the Client with respect to any loss other than that described in section (i) above incurred or suffered by the Client arising out of or in connection with a service failure, whether expressly set forth in these terms and conditions or arising therefrom or otherwise provided by law.
5. CLIENT OBLIGATIONS
Payment. The Client will pay all amounts due as indicated in the Contract, in accordance with the "Financial Conditions" Section.
Information and cooperation. In order for the Company to provide the Service, the Client must provide the Company with (i) all necessary cooperation in relation to this Agreement and (ii) all necessary access to the information required by the Company.
Compliance. The Customer shall (i) comply with all applicable laws and regulations with respect to its activities under this Agreement; (ii) obtain and maintain all necessary licenses, consents and authorizations for Company, its subcontractors and agents to perform their obligations under this Agreement, including, without limitation, the Service.
Security. The Client must (i) ensure that their network and systems comply with the relevant specifications provided by the Company from time to time; (ii) be solely responsible for procuring and maintaining their network connections and telecommunications links from their systems to the Company's data centers, and for all problems, conditions, delays, delivery failures, and all other loss or damage arising from or relating to the Client's network connections or telecommunications links or caused by the internet.
User Subscriptions. Regarding Authorized Users, the Client undertakes that: (i) the maximum number of Authorized Users they authorize to access and use the Service and Documentation shall not exceed the number of User Subscriptions specified in the Order; (ii) they will not allow or tolerate a User Subscription to be used by more than one individual Authorized User unless it has been reassigned in its entirety to another individual Authorized User, in which case the previous Authorized User will no longer have the right to access or use the Service and/or Documentation; (iii) each Authorized User will maintain a secure password for their use of the Service and Documentation, and the Authorized User must keep their password confidential. The password for accessing and using the Service is the sole and exclusive responsibility and liability of the Authorized User and/or the Client; (iv) they must maintain a written, up-to-date list of current Authorized Users and provide such list to the Company within 5 working days of the Company's written request at any time.
Reduced Price Trial. The reduced price trial lasts for the period mentioned on the website and is at the price mentioned on the website. After this reduced price trial period, the subscription will automatically continue at the regular price unless the Client cancels the subscription before the trial period ends. The Client must provide accurate billing and payment information in order to continue using the Service. The Company reserves the right to terminate the trial period and/or cancel the Client's access to the Service if payment information is not provided or is incorrect.
The Client must not, willfully or negligently, access, store, distribute or transmit any Viruses or any material during the use of the Service that: (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) is related to any unlawful, illegal, fraudulent or harmful purpose or activity; (iii) facilitates an illegal activity; (iv) depicts sexually explicit images; (v) promotes unlawful violence; (vi) is discriminatory based on race, gender, color, religious beliefs, sexual orientation, disability or any other illegal activity; or (vii) causes damage or injury to any person or property; and the Company reserves the right, without liability to the Client, to disable the Client's access to any material that breaches the provisions of this clause.
The Client must not: (i) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties; (ii) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Platform and/or Documentation (as applicable) in any form or media or by any means; or (iii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or (iv) access all or any part of the Service and Documentation in order to build a product or service which competes with the Service and/or the Documentation; or (v) use the Service and/or Documentation to provide services to third parties; or (vi) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service and/or Documentation available to any third party except the Authorized Users.
The Client agrees to use all reasonable endeavors to prevent any unauthorized access or use of the Service and/or the Documentation.
6. INTELLECTUAL PROPERTY
The Client acknowledges and agrees that the Company and/or its licensors hold all intellectual property rights in the Service, including but not limited to the software, the Platform, their updates/upgrades, and the Documentation. The Agreement grants the Client no rights to or in patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or not), or any other rights or licenses in respect of the Services, the Software, the Updates, the Platform, their updates/upgrades, or the Documentation.
The Client guarantees that they will not infringe, in any way, directly or indirectly, the intellectual property rights of the Company. Therefore, the Client undertakes not to: (i) use the Service and/or Documentation in any way to design, perform, provide, or sell similar, equivalent, or substitute products or services; (ii) adapt, modify, transform, or change the Service and/or Documentation in any way, for any reason, including to correct malfunctions; (iii) decompile, reverse engineer, or disassemble any part of the Service; (iv) sell, transfer or rent, for a fee or free of charge, any part of the Service, Documentation and/or the rights of use granted under this Agreement, except as otherwise provided in this Agreement; (v) transcribe or translate directly or indirectly the Service and/or Documentation into another language; (vi) modify, break, or bypass any anti-piracy measures, including access codes or usernames; and (vii) distribute and/or market, for a fee or free of charge, the Service and/or Documentation in any way, whether through a derivative work or otherwise.
The Company grants the Client, from the date of this Agreement and for the duration of this Agreement, an irrevocable, non-exclusive, non-transferable, and royalty-free license to use, exploit, and/or commercially exploit the Service and Documentation for the purpose of obtaining the full benefit of the Service and this Agreement for the Client.
7. FINANCIAL TERMS
The Client will pay the Company the fees for the Client's subscriptions in accordance with the Order.
Thus, for any order for the provision of services made by the Company through the Platform, the Client has no right of withdrawal. Any deposit paid will therefore be retained.
Both Parties expressly agree not to disclose any technical, commercial, or other information of any kind, regardless of the medium, acquired through the delivery or preparation of documents, or orally, that they may have come to know about the activities of the Parties and possibly those of their partners. Documents include study notes, plans, calculations, software, results, etc. Information and results obtained during their work may not be communicated to third parties without the written permission of the Party that owns them.
This provision covers information transfers, as well as publications, exchanges in meetings, communications or conferences that may occur. Violation of the preceding commitments may result in the offending Party being subject to provisions of the Penal Code related to the obligation of secrecy.
These confidentiality provisions remain in force as long as the information covered by this commitment has not entered the public domain and has not violated any of the obligations arising from the commitment.
In case of non-compliance with the confidentiality obligation, the injured Party reserves the right to claim damages for each breach in reparation for the suffered loss.
In case of termination, resolution, cancellation, or expiry of the contract, the Parties undertake to:
• return the documents, including digital media, provided by the owning Party;
• destroy intermediate documents they have prepared, including digital media;
• erase recordings they have made on the hard drive or any other media;
• also destroy residual documents such as drafts and additional copies they have produced.
9. PERSONAL DATA
The European Parliament and Council Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC ("GDPR"), applies to the processing of Customer Data when (i) the processing is carried out in the context of the Services on the territory of the European Economic Area ("EEA"), (ii) and/or the Customer Data are personal data relating to data subjects who reside in the EEA and the processing is related to the performance of Services in the EEA. The terms "personal data", "sensitive data", "data subject", "process" or "processing", "controller" and "processor" as used in this section have the meaning given in the GDPR.
Company Compliance. The Company shall comply with all applicable data protection laws and regulations in the European Union (including the GDPR as of its effective date).
Client Compliance. The Client shall comply with all applicable data protection laws and regulations in the European Union (including the GDPR as of its effective date).
Information Processing. The parties acknowledge and agree that the company is the processor of the Customer Data and that the client (or its affiliates) is the controller. The client is solely responsible for the accuracy, quality, and legality of the Customer Data and the means by which the client acquired such data.
Instructions. The Company will process the Customer Data on behalf of the Client and according to its documented instructions (unless required by law) in accordance with the following provisions: (i) to perform the Services; (ii) as specified in more detail through the Client's use of any functionality of the Service; (iii) as documented in this agreement, including the respective user subscriptions; and (iv) as documented in any other written instruction given by the Client and acknowledged by the Company as constituting instructions for the purposes of this Agreement.
Categories of Data Subjects. The group of data subjects whose personal data is processed under this agreement includes: (i) those of the Client, (ii) the Client's end users, and (iii) those of the Authorized Users.
Categories of Personal Data. The client submits Customer Data to the service, the extent of which is determined and controlled by the client at its sole discretion, and which may include, but is not limited to, the following categories of personal data: (i) For the client: company name, email, address, incorporation deed or representative's ID card, bank details, representative's contact details (title, first name, last name, email, phone, fax); (ii) For the Client's end users: title, name/company name, incorporation certificate or representative's ID card, bank details, representative's information (title, first name, last name, email, phone, fax) or, if applicable, title, name, delivery address, billing address, email, phone number, order history; (iii) For Authorized Users: company name, email, address, incorporation certificate or representative's ID card, bank details, representative's information (title, first name, last name, email, phone, fax) or title, first name, last name, billing address, email, phone number, order history.
Sensitive Personal Data. The Client undertakes not to submit any sensitive data to the Services under any circumstances.
Subcontracting. In accordance with this section, the Client generally authorizes the Company to engage subsequent processors to perform specific processing activities in connection with the execution of the Service. The Company will continue to use the processors it has already engaged as of the date of this agreement. The Company may appoint its own affiliates as subsequent processors. In addition, the Company may engage third parties as subsequent processors in the context of the execution of the Service. The Company has entered or will enter into written agreements with each subsequent processor containing the same data protection obligations as those of this Agreement regarding the protection of Customer Data to the extent applicable to the nature of the service provided by that subsequent processor. The Company will inform the Client of any new third-party processor engaged to process the Customer Data during the term. The Client may object to the Company's appointment of a new third-party processor by notifying in writing within ten (10) days of receiving the Company's notice. The Company will make reasonable efforts to make available to the Client a modification of the Service or recommend a commercially reasonable change to the configuration or use of the Service by the Client to avoid processing personal data by the objected new processor without imposing an unreasonable burden on the Client. The Company will make available the current list of subsequent processors for the Service.
The Company ensures that the processing of Customer Data is strictly limited to employees who need to know it to perform the Service. These employees are bound by confidentiality obligations with respect to the Customer Data they process.
Security. The Company must maintain appropriate technical and organizational measures for the protection of the security, confidentiality, and integrity of Customer Data, including protection against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data.
Data Incident. A data incident means a breach of the company's security resulting in accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or access to Customer Data on systems managed or otherwise controlled by the company. Unsuccessful attempts or activities that do not compromise the security of Customer Data will not be considered data incidents. The Company will inform the Client without undue delay after becoming aware of any incident affecting the Customer Data, providing the Client with the most detailed information available at that time. The Company will take all reasonable and necessary corrective measures to mitigate the adverse effects and prevent the recurrence of such incidents, to the extent that the actions are within the reasonable control of the Company. These obligations do not apply to incidents caused by the Client or the data subjects.
Requests from Data Subjects. If a data subject requests to exercise their rights concerning their personal data directly from the Company, the Company will inform the Client of this request without delay. The client is solely responsible for responding to all requests from data subjects. The Company may provide assistance in responding to requests from data subjects, on behalf of the Client, only upon the Client's instruction in accordance with this agreement and to the extent permitted by law.
Data Storage. The Company guarantees that the Customer Data will be stored in the EEA.
Transfer Outside the EEA. In case of transfer of personal data outside the European Union for the purpose of executing the Service, the Parties agree that the Client will sign, with the Company's processor, all the EU standard contractual clauses as prescribed by the European Commission Decision of 5 February 2010 (2010/87/EU). The Company will inform the Client so that it fulfills its obligations towards the competent data protection authorities.
In particular, the Client acknowledges and agrees that personal data may be transferred or stored outside the EEA or the country where the Client and Authorized Users are located to perform the Service and the other obligations of the Company under this Agreement, but always in accordance with Article 44 and following of the GDPR.
The Client must defend, indemnify, and hold the Company harmless from any direct and actual losses or damages and reasonable expenses and costs (including, but not limited to, court costs and reasonable legal fees) resulting from claims, actions, proceedings, arising from the Client's liability.
The Company will defend, indemnify, and hold the Client harmless from any direct and actual losses or damages and reasonable expenses and costs (including, but not limited to, court costs and reasonable legal fees) resulting from claims, actions, proceedings of third parties arising from any breach of intellectual property rights used by the Company in connection with the provision of the Service and/or Software and/or Platform and/or Documentation, provided that: (i) the Company is promptly informed of such claim; (ii) the Client fully cooperates with the Company in the defense and settlement of such claim, at the Company's expense; and (iii) The Company is solely authorized to defend or settle the claim.
Notwithstanding the foregoing, the Company shall not be obligated to indemnify and hold the Client harmless for any claim arising from the Client's negligence or a more culpable act or omission, including recklessness or willful misconduct.
This section sets forth the Company's entire financial liability to the Client in respect of: (i) any breach of this agreement; (ii) any use made by the Client of the Service and Documentation or any part thereof; and (iii) any representation, statement, or tortious act or omission arising out of or in connection with this agreement.
Unless specifically and expressly provided for in this Agreement: (i) the Client alone shall be responsible for the results obtained from the use of the Service and Documentation by the Client, and for any conclusions drawn from such use. The Company shall not be liable for any damage caused by errors or omissions in the information, instructions, or scripts provided to the Company by the Client or by a third party in connection with the Service, or any action taken by the Company at the direction of the Client.; (ii) all warranties, representations, conditions, and all other terms of any kind whatsoever implied by law are, to the fullest extent permitted by applicable law, excluded from this agreement; and (iii) the Service and Documentation are provided to the Client "as is".
Nothing in this Agreement shall exclude the Company's liability: (i) in the event of death or personal injury caused by the Company's negligence; or (ii) for fraud or fraudulent misrepresentation or (iii) for gross negligence or (iv) for willful misconduct.
Subject to the paragraph above: (i) The Company shall not be liable, whether in negligence, breach of a legal obligation, contract, misrepresentation, restitution, or otherwise, for any loss of profits, loss of business, depletion of goodwill and/or similar losses, or loss or corruption of data or information, or pure economic loss, or for any indirect, costs, damages, charges, or expenses arising in any way under this agreement; and; (ii) The Company's total aggregate liability in contract, negligence, or breach of a legal obligation, misrepresentation, restitution, or otherwise, arising in connection with the performance or contemplated performance of this agreement shall not exceed the total amount due by the Client to the Company under this agreement during the six (6) months immediately preceding the alleged breach by the Client; and (iii) The Company shall not be held liable, whether in this agreement, strict liability, or otherwise, for indirect damages, including, but not limited to, loss of production, loss of use, loss of clientele or reputation, loss of savings or profit, loss of revenue, loss of contract, or for any indirect loss or damage suffered by the Client.
12. FORCE MAJEURE
Neither party shall be liable to the other for any delay or failure to perform an obligation (other than your payment obligations to the Company) under the Terms if the delay or failure is due to unforeseen events that occur after the entry into force of the Terms and are beyond the reasonable control of the parties, such as strikes, blockades, acts of war, acts of terrorism, riots, natural disasters, refusal of license by the government or other government agencies, to the extent that such event prevents or delays the concerned party from fulfilling its obligations and that party is unable to prevent or remove the force majeure event at a reasonable cost.
Without prejudice to any other rights or remedies to which the Parties may be entitled, either Party may terminate the Agreement, with immediate effect and without liability to the other if (i) the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within thirty (30) calendar days of written notice of the breach to that party; or (ii) a court order is made or a resolution is passed for the winding up of the other Party, or circumstances arise which entitle a competent court to make a winding-up order in respect of the other Party; or upon termination of this Agreement for any reason: (i) the Client shall pay to the Company all amounts (taking into account all applicable service credits) that are due and payable hereunder up to the date of termination, if any, (ii) The Company shall cease to provide the Service to the Client, (iii) the Client shall have no further right to access or use the Service, the Software and/or the Platform.
14. GENERAL PROVISIONS
Non-waiver. The non-performance of any of the provisions of the Terms shall not constitute a waiver of that provision.
Severability. If any provision of the Terms is deemed invalid or unenforceable for any reason, the remainder of the provisions of the Terms shall remain fully valid. These provisions shall be without effect only if they are not valid or if it is impossible to enforce them.
Contractual documents: The Agreement consists of the Terms of Service which constitute the entire Agreement entered into between the Client and the Company, to the exclusion of the Client's general terms and conditions and all other documents, agreements, or prior discussions. The Company may at any time and as of right modify the Terms of Service. These changes are applicable immediately to all new orders
Assignment of Agreement. Neither Party is authorized to assign this Agreement, in whole or in part, without the prior written consent of the other Party. However, notwithstanding the foregoing, either Party may freely assign all or part of this Agreement to its Affiliated Companies. In this case, it shall promptly notify the other Party in writing, and shall guarantee the performance of the Agreement by the assignee Affiliated Company(ies). The following operations do not fall within the scope of this article and are authorized: (a) changes in shareholding, changes in participation, and changes in control of either Party, and (b) operations such as mergers, acquisitions, business transfers, activity transfers, and other operations resulting in a transfer of assets of either Party. If one of the Parties carries out one of the operations mentioned in points (a) and (b) above, it shall inform the other Party. If the operation is equalized for the benefit of a direct competitor of the other Party or a company in dispute with the other Party, the latter is authorized to terminate the Agreement as of right and without compensation
Notification. Any notification concerning the Terms must be sent by registered letter with acknowledgment of receipt, addressed to the registered office of the concerned Party.
15. APPLICABLE LAW AND JURISDICTION
The Agreement is subject to Cypriot law.
The Parties agree, before implementing legal proceedings, to seek an amicable solution to their dispute: to this end, the Party who considers that a dispute has arisen shall notify the other by registered letter setting out the terms of the dispute.
A meeting shall be held within fifteen (15) calendar days of the sending of this letter, and if no amicable solution is reached within thirty (30) calendar days, either Party may initiate any legal proceedings as necessary.
Any dispute concerning the validity, interpretation, or execution of the Agreement that cannot be resolved amicably by the Parties shall be brought before the competent courts of Cyprus.