Art. 1 Definitions
"Client" - the contracting partner of MerchantPro acting either directly or by authorised representatives (such as employees, Client's collaborators or any other third party authorised by the Client) for the purpose of using the Services,
"User" - any person who accesses the Services through an authorised user's account for and on behalf of the Client.
"Agreement" - this agreement between the Parties, which may be exclusively executed in English.
"Offer Acceptance"- the Client's completion of the process of creating an account on MerchantPro.
"Order Form" - any electronic document acting as a form of communication between MerchantPro and the Client, whereby, upon the Client's request, MerchantPro agrees to provide the requested Services, and the Client agrees to receive these Services and pay the corresponding price thereof. In relation to the free-of-charge Services, the order shall be considered as completed and shall come into effect as of the time the Offer Acceptance reached MerchantPro, and in relation to the paid Services, the order shall be considered as completed and accepted by MerchantPro the moment the Parties agree upon the Services, specifications and price and shall come into effect only upon the actual collection of the Service values by MerchantPro. The paid Services ordered by the Client and the costs corresponding thereto shall be detailed by the Appendices to the order.
"Services" - set of predefined activities provided by MerchantPro upon the Client's request and to the Client's interest, including but not being limited to the standard Service packages, application subscriptions, customised software development services, setup services, SSL certificate purchase and configuration, etc.
"MerchantPro Platform" - set of functionalities developed and administered by MerchantPro, fully or partially available to the Client upon the completion of a Service order.
"Appendix/Appendices to the Order" - any document following the order is an integral part of this this Agreement;
"Hosting" - a service that allows natural persons or legal entities to stock electronic data whether intended or not to public access, through MerchantPro's provision of the required space on its servers;
"Malfunctioning/deficiency" - any technical irregularity that affects the entire functionality of the Services;
"Scheduled maintenance" - any routine or upgrade works that might affect the Service's availability.
"Notification" - written communication transmitted by e-mail or posted on any electronic support related to any Scheduled Maintenance that will affect the Service's availability. MerchantPro shall take all the reasonable steps to transmit such notification to the Client at least 1 working day in advance.
"Party" - any of the Parties signing this Agreement, i.e., the Client or MerchantPro;
"Service Plan" - cost structure representing the payment corresponding to a chosen standard service package, including a certain series of selected functional options, as stipulated on the https://www.merchantpro.nl/plans page and which may be subject to updates with no prior notice. Any change to the cost structure shall be communicated to the Client, if applicable, using the electronic communication means available on the MerchantPro Platform.
"Application Subscription" - cost structure representing the payment corresponding to a functionality available on the MerchantPro Platform as Application with optional installation, as provided in the Applications section in the Client's account, and which may be subject to updates with no prior notice. Any change to the cost structure shall be communicated to the Client, if applicable, using the electronic communication means available on the MerchantPro Platform.
"Setup Fee" - cost structure representing the payment corresponding to any functionality configuration works, works executed by MerchantPro for the Client, and which me be subject to updates with no prior notice. Any change to the cost structure shall be communicated to the Client, if applicable, using the electronic communication means available on the MerchantPro Platform.
"Usage Limits" - set of maximum limits up to which a type of Service Plan may be used, as stipulated in the https://www.merchantpro.nl/plans page. Upon reaching any of the maximum usage limits of the current Service Plan, an upgrade to the higher Service Plan is required.
"Plan Upgrade" - the replacement of the Client's currently used service plan by a higher service plan, further to a Client's order or further to the generation of an automatic order, if the Client reached the usage rates of the current plan.
"Plan Downgrade" - the replacement of the Client's currently used paid service plan by a lower paid service plan, further to a Client's order or further to the replacement thereof by the free-of-charge service plan, occurred further to the Client's failure to comply with their payment obligations.
"Custom Software Development Services" - paid Services distinct from the standard Service plans, available on payment and consisting in the web and/or software development, which MerchantPro may provide upon the Client's request and for the Client's use, based on the specifications provided by the Client. The specifications based on which MerchantPro will provide the Custom Software Development Services shall be described by the Appendices to the Order Form. The order shall be considered as completed and accepted by MerchantPro upon the Parties' agreement on the Services, specifications, and price thereof and shall become legally binding only upon the actual collection of the value of the Custom Software Development Services by the MerchantPro.
"Support" - the Technical Support Centre of MerchantPro, available by e-mail at email@example.com or by using the contact form.
"Normal Use" - the use of the Services, according to the selected Service Plans, solely for the purpose for which they were offered by MerchantPro, within the available capacities and options, bounding by the Terms and Conditions of Use and subject to the provisions of this Agreement.
"Service Level Agreement (SLA)" - The monthly availability of the essential Services as agreed between the Parties, according to the policy enclosed as Appendix 3 to this Agreement.
"Terms and Conditions of Use" - conduct and usage rules governing the Services and intended for the Client, available as periodically updated on the MerchantPro website, at https://www.merchantpro.nl/info/terms and which may be updated and amended according to the provisions of this Agreement.
Art. 2 Object of the Agreement
2.1 The object of the Agreement is the provision by MerchantPro to the Client's interest of the Services below, according to the terms and conditions of this Agreement:
- provision to the Client of a series of functional options for the creation and administration of an online store, according to the Service Plan/s selected by the Client, whose specifications are included in the Plans section, as available and valid upon the completion of the Order Form at: https://www.merchantpro.nl/plans;
- hosting the online store/s on the MerchantPro servers in order for the online store to be accessible to third parties;
- provision of paid Custom Software Development Services, upon the Client's request and for the Client's use and applied to the online store/s created by the Client through the standard functional options available on MerchantPro and indicated by the Client.
2.2 This Agreement supersedes any other agreement/consent previously concluded between MerchantPro and the Client for services similar to the ones stipulated as the object of this Agreement, at Art. 2.1, however does not annul any due or overdue payment obligations, nor any penalties for the previously provided services, and shall not stand as a MerchantPro's waiver of their right to recover the above. Furthermore, this Agreement does not replace or supersede other agreements concluded between the Parties, if such agreements have different objects and/or cover different services than the ones contemplated by this Agreement.
Art. 3 Duration of the Agreement
3.1 This Agreement comes into force:
a) in relation to the free-of-charge Services - as soon as the Offer Acceptance reaches MerchantPro, and
b) in relation to the paid Services, according to the Service Plans - as soon as the Offer Acceptance including the actual payment of the services as per the selected Service Plan reaches MerchantPro.
3.2 This Agreement is concluded for an indefinite period and ceases in the circumstances provided at art. 21 of this Agreement.
3.3 The Client shall complete a new Service Order before the expiry of the current period, otherwise a Downgrade to the free-of-charge Service plan shall be applied.
3.4 If the Client reaches the usage limits of the current Service Plan, the Client shall be automatically allocated the Service Plan corresponding to the Service usage level, through the Plan Upgrade option. If the Client wishes to perform a Plan Downgrade, the Client may manually place, from their account or from the MerchantPro Platform, an order for the lower Service plan intended, which will come into force after the expiry of the period corresponding to the current plan.
Art. 4 Location of the Activities Stipulated in the Agreement
4.1 The activities stipulated in this Agreement shall be performed at the registered offices of MerchantPro.
Art. 5 Value of the Agreement
5.1 The prices of the Services are exclusively the ones provided in the Appendices to the order, as accepted and used by the Client by placing the order. The prices for the Services provided by the Appendices to the Order Forms are exclusive of VAT or other applicable taxes. The payment shall be considered as completed when the exact amount, free of any bank fees, taxes or any other fees/retentions, was credited to MerchantPro's account.
Art. 6 Payment Terms and Other Costs
6.1 After the placement of an order for the purchase of paid Services, a proforma shall be issued and sent to the Client by e-mail and shall be paid by Client within 14 (fourteen) days as of the receipt thereof, in advance, by bank order or by any of the payment means provided to the Client by MerchantPro. For a fast processing the number of the proforma must be stipulated on the bank order. Subsequently, within maximum 14 (fourteen) days as of the receipt of the payment, MerchantPro shall issue an invoice to the Client, according to the proforma. The Client shall gain access to the purchased Services as soon as the account of MerchantPro was credited with the amount corresponding to the proforma.
6.2 If the Client fails to timely pay the value stipulated by the proforma, MerchantPro reserves the right to suspend the access thereof to the agreed Services.
6.3 If the Client fails to pay the proforma within 30 calendar days as of the due date thereof, i.e., the 30-th day as of the invoice issue date, the provision of all the paid Services shall be interrupted and the Client shall have access exclusively to the free-of-charge Services. The interruption of the paid Services shall have no effect on the Client's already due obligations.
6.4 Upon entering the details of the cred card to be used for the payment of the Services, the Client may express agreement on the automatic renewal thereof and on the direct debit payment of the subsequent invoices for the purchased Services. The Client has the possibility to subsequently deactivate the direct debit service.
6.5 If MerchantPro receives any claims, notices or any other types of requests from any public or private authority in relation to the Client's activity on the MerchantPro Platform and involving any action of technical, legal, financial, etc. nature from MerchantPro, MerchantPro shall issue to the Client a proforma for the value of the services provided in relation to the circumstances above, proforma to be paid by the Client within 14 days as of the communication thereof. The value of the Services shall be calculated based on the time and resources allocated by MerchantPro, as well as on the costs borne by MerchantPro for this purpose. Such situations include, but are not limited to, claims related to the violation of the labour rights, claims from the state authorities, claims from the visitors or clients of the store operated by the Client, claims related to the Client's violation of the legal provisions in force.
Art. 7 Obligations MerchantPro
7.1 MerchantPro undertakes to:
- provide access to the Client to the functional options required for the creation and administration of the online store/s, according to the Service Plan/s or to the application subscription/s selected by the Client;
- take all the steps required to provide the Service at the minimum agreed level (SLA) except for any scheduled maintenance as well as except for the fact that some delays or other malfunctions thereof may be caused beyond the will and control of MerchantPro (Internet access provider, electrical power providers, etc.); in the event that MerchantPro fails to deliver the minimum agreed SLA, the Client has the right to request from MerchantPro the pro-rata value of the Service plan / subscription for the period of non-functionality or for the extension of the Service plan /application subscription by the period of non-functionality;
- create all the reasonable technical conditions as reasonably common and required as a minimum, without this being considered as an obligation of full warranty, for a proper protection against fraud attempts;
- remedy all the potential defects claimed by the Client, if the claim is reported and registered with the Support Centre of MerchantPro. The filing and registration of the claim shall not suspend the Client's obligation to pay for the Service provided under this Agreement. The defects are considered as repaired, in case of a full or partial remedy, whenever the provision/continuity of the Service is assured. Any claim related to the operation of the Service shall be submitted to the e-mail address firstname.lastname@example.org or by using the Contact Form. MerchantPro undertakes to remedy any technical operational malfunctions occurred in its network, so as to ensure the supply/continuity of the Services, within maximum 2 working days as of the registration thereof, according to specifications herein;
- ensure the confidentiality of the Client's access passwords and remedy any technical issues that prevent the normal operation of the Service, which fall under the scope of responsibilities of MerchantPro (technical issues of the system, improper aspects related to availability);
- provide the Client with this Agreement as concluded/agreed, in the account or on the MerchantPro Platform. The concluded Agreement is stored by MerchantPro in its informational system;
- provide the Client, before the purchase of Service Plan/Application Subscription, with the option to amend the identity data previously introduced by the Client, either by operating the amendments directly by MerchantPro upon the Client's written request, or by providing the Client with the possibility to amend this data from the Client's account or by any other technical means that might ensure the proper amendment of the Client's identification data;
- provide paid Custom Software Development Services as ordered by the Client as soon as the Client paid the value thereof.
7.2 MerchantPro reserves the right to intervene on the text or photo content added by the Client, without the Client's prior agreement, if there are any indications that the relevant content infringes the law, the good morals, the Supplier's reputation or in any other circumstances where so required by the law, authorities or by other bodies authorised by the law.
7.3 In the event that MerchantPro fails to comply with its obligations related to the availability of the Service, the Client shall be entitled to request either the extension of the Agreement duration by the number of days during which the provision of the Service was interrupted, or the pro-rata value corresponding to the period during which the operation of the Service was interrupted.
The Client shall not be entitled to request the compensations provided above if the failure to comply with an obligation is directly or indirectly caused by the following:
- fault, negligence or operational errors of the Client, the Client's employees or the Client's customers;
- the Client's failure to comply with the Terms and Conditions of Use governing the Service;
- any Client's intervention that might affect the operation of the Service in its entirety or of any component of the Service;
- Scheduled maintenance;
7.4 MerchantPro reserves the right to suspend the Client's access to the Services, either temporarily or permanently, in case it holds reasonable evidence or suspicions in relation to the Client's breach of this Agreement. The Service may be suspended with no prior notice if the Client:
- carries out any of the activities provided at Art. 8.1, paragraph g);
- carries out other activities that affect the integrity of the Services offered by MerchantPro to other clients.
7.5 The Services shall only be used by the Client on its own liability, and the public's access to information is provided on the Client's liability. The Services are provided as such for and on behalf of the Client, and MerchantPro provides no warranties to the Client's customers, under any circumstance, and in case of any third-party claims in relation to the Client and the information posted thereby, automatically gives rise to the full warranty obligation, including the related and accessory expenses generated by the submitted claims. Moreover MerchantPro has a right of recourse against the Client for any potential damages incurred by MerchantPro in relation to any third-party claim and/or complaint.
7.6 MerchantPro reserves the right to temporarily suspend, with no prior notice, the Client's access account to the Services, to permanently interrupt the viewing of the Client's content or eliminate temporarily, up to remedy, or permanently certain Client's content items, if potential violations of the legal provisions are reported, such as, but without being limited to - acts of defamation, threatening, which include or refer to pornography, obscenity, which infringe any intellectual property rights or any natural person or legal entity or which violate this Agreement.
7.7 MerchantPro does not claim, assume, or hold any intellectual property rights over the content used/posted by the Client within the Services. All the materials and the information are the Client's property, who is solely liable for the content thereof in relation to any claim any third party (including state authorities) might have against MerchantPro in relation to the content used/posted by the Client within the Services. Furthermore MerchantPro holds a right to recourse against the Client for any potential damages incurred by MerchantPro in relation to any third-party claim and/or demand.
7.8 In relation to the Custom Software Development Services, the MerchantPro's obligations are considered as fulfilled as soon as the Client's requirements are implemented, in the form and at the time agreed with the Client. If the Client fails to provide MerchantPro with all the information and/or documents required for the implementation of the Software Development Services and such failure causes delays in the implementation process, MerchantPro reserves the right to advance the implementation time and enforce additional costs, if efforts in addition of the ones initially planned are required.
7.9 Further to the cessation of the Agreement as provided by Art. 21 of this Agreement, MerchantPro reserves the right to deactivate or permanently delete, in part or in whole, the contents posted by the Client in the MerchantPro system.
- After the expiry of the Service Plan purchased by the Client, MerchantPro reserves the right to deactivate or permanently delete the contents introduced by the Client, which exceeds the current Service Plan used by the Client.
- MerchantPro undertakes to provide assistance to the Client according to the limits and assistance means corresponding to the Service Plan used by the Client.
- The provided assistance includes clarifications to the general questions related to the functionality of the platform and to the use of the Services. The assistance service does not include works or configurations carried out by the MerchantPro team.
7.10 MerchantPro shall take all the steps required to provide prompt responses and solutions. The response time is the time period between the request for support and the time the request is taken under consideration. The solution time varies depending on the severity and complexity of the incident, according to the Service Plan used by the Client.
Art. 8 Client's obligations
8.1 The Client undertakes to:
- comply with the Terms and Conditions of Use for the Service;
- not use the Services against the common practices in the field, self-regulations, or legislation in force, or use work methods which directly or indirectly affect or infringe third parties' rights and interests;
- be liable for any prejudices, costs or damages caused by the Users who access the Services from the Client's account in bad faith;
- normally and honestly use the Service for legal trade purposes. The Client shall not carry out or allow any action to be carried out that might affect the network and system security MerchantPro or the security of the networks and systems of third parties, or that might in any way contravene to the normal use of the Services. In such circumstances, the responsibility for all and any damages claimed by third parties shall exclusively belong to the Client. Furthermore MerchantPro holds a right to recourse against the Client for any potential damages incurred by MerchantPro in relation to any third-party claim and/or demand;
- pay the proforma values corresponding to the orders of Services according to the provisions of Art. 5 and Art. 6;
- is responsible for securely maintain the usernames, passwords and other confidential information. In case there are suspicions that such information was compromised, the Client shall request the modification of the login details by contacting in writing, for this purpose, the Technical Support Service at address email@example.com or by using the Contact Form;
- not use the MerchantPro system and/or the provided Service under any way and in any circumstance for the hosting, communication, reference to or directing to any of the contents below:
- Nudity, pornography of any kind, any image or text with sexual or obscene content;
- Infringement of intellectual property rights and copyrights and/or related thereto or of any other third-party right or interest;
- Threats, abuse, harassment, slanderous statements, etc.;
- Promotion of illegal activities such as: phishing, spoofing, proxy, hacking, sniffing, warez (mp3, avi, etc; provision of music or films), etc;
- Any image or text intended at encouraging xenophobia;
- Persona and/or private information to be used for illegal purposes;
- Any content considered by MerchantPro as harmful.
- not to carry out or transmit unsolicited commercial messages (spam) to promote any site, service, or product, using the MerchantPro system or through any third-party servers to promote any site hosted on the server. In case of such actions, which are considered by MerchantPro as spam and against the legal provisions in force, the access to the Services shall be suspended with no prior notice, and the liability shall rest entirely with the Client and the trade company, natural person or legal entity who holds the online store in fault/promoted;
- be fully and exclusively liable and indemnify any third party damaged by any forbidden acts, as indicated by paragraphs f) and g) above;
- provide current, true and valid information on the identity of the company, of the certified natural person or of the natural person who holds and operates the online store (company's name, registration with the trade registry office, fiscal identification code, phone number, full address, valid e-mail address, etc.) and of the representative who manages the Service access account, as required in the registration process or in other sections of the MerchantPro Platform. The Client undertakes to update its information in case this is altered. If the information related to the company's identity, to the certified natural person or of the natural person who holds and operates the online store or the information related to the identity of the representative who manages the account on the MerchantPro Platform prove to be inaccurate or false, the access to the Services may be suspended with no prior notice, up to the remedy of the situation;
- ensure the authenticity or validity of the information on the created store. In case of doubts related to the authenticity or validity of this information, whatever the nature or reference object thereof, MerchantPro reserves the right to suspend the access to the Services with no prior notice;
- be liable for any activities carried out based on the Services provided by MerchantPro and for the entire content loaded in the Client's account for the MerchantPro Services, whatever the consequences these actions or content might have. MerchantPro undertakes no liability for the content published by the Client nor for the actions thereof, whatever the nature thereof. Furthermore MerchantPro holds a right to recourse against the Client for any potential damages incurred by MerchantPro in relation to any third-party claim and/or demand;
- not to carry out any illegal trade activities, as stipulated by the legal provisions in force. Engaging in any activity that might be considered as illegal shall result in the suspension of the access to the Services with no prior notice;
- not to use any domains or subdomains that abusively include registered trademark names not belonging to the Client or infringing the legal rights of any other party, and not use domains or subdomains that might be considered, directly or indirectly, as: calumny, slander, defamation, obscenity, pornography, harassment, abusive language, discrimination, racism, but not being limited to the above. The failure to comply with this obligation results in the suspension of the access to the Services with no prior notice, and the liability belongs entirely to the Client who holds the online at fault. Furthermore MerchantPro holds a right to recourse against the Client for any potential damages incurred by MerchantPro in relation to any third-party claim and/or demand;
- be exclusively liable for the content of the materials posted. By posting, the Client represents and warranties that:
- is the holder /owner of the posted material or is the holder of a permit or obtained the consent or permission to use the relevant material in any way and thus may use it by including, reproducing, distributing it on the website and on any media channel;
- holds the consent from any visually or audibly identifiable person in the content of the materials posted on the website and/or the voice thereof on the website, implicitly in public context, and on any media, within the conditions and limits provided by this Agreement which governs the terms and conditions of using the website;
- shall not post materials which, by their content, are defamatory and which may, directly or indirectly, damage the MerchantPro or any other third individual or legal entity;
- shall not post obscene or pornographic materials (such as explicit sexual acts, explicit frontal nudity, etc.) or scenes of violence or encouraging the violation of the human rights recognised by the applicable law and/or by international agreements in the field;
- shall not post materials whose contents could harm human integrity and dignity, which are discriminatory, threatening, harassing, with a violent content, which might instigate hate or discrimination against a group based on race, religion, ethnicity, sex, age, sexual orientation;
- shall not post materials whose content promotes in any way illegal activities such as, but without being limited to unlicensed gambling;
- shall classify as "not suitable for under 18" the materials considered as inappropriate for viewing by minors;
- shall under no circumstance use the identity of another real person, the theft of identity being punished according to the criminal laws in force;
- by loading images and product descriptions for the use of the Services, agrees for those to become public and to offer access thereto to any internet user.
- not to use any automatic system that sends repeated requests to any of the MerchantPro servers and which might cause the malfunction or slow functioning thereof.
8.2 The Client hereby represents and warranties that it holds and shall maintain valid all the permits, approvals, licenses, endorsements, etc. required, including any amendments that might be required for the Client to carry out its activity according to this Agreement. The Client is solely liable to the relevant control authorities for the obtaining of these permits, approvals, licenses, endorsements as well as for all the consequences deriving from the Client's activity without holding these permits, approvals, licenses, endorsements.
Art. 9 Refund of Payments
9.1 In any of the circumstances leading to the limitation of the Service further to the Client's breach of any of its obligations under this Agreement, especially of those included at Art. 7.4 and Art 8.1 letter f) - o), however without being limited to these, the Client has no right to claim damages or the return of the Agreement value, regardless of the consequences entailed by the limitation in the use of the Services.
9.2 For the entire duration of the contract relations, MerchantPro provides a one-time warranty for the return of the first payment collected from the Client for any selected Service Plan, within maximum 15 days as of the collection thereof. The return of the first payment shall not made by MerchantPro unless under this Agreement, concluded between MerchantPro and the Client.
9.3. Besides the situations provided at art. 9.1, the Client has no right to claim the return of the payment for any other type of Services, including but without being limited to the application subscriptions, SSL certificates, products or Custom Software Development Services or setup taxes.
Art. 10 Amendments to the Terms and Conditions of Use for the Services
10.1 Terms and Conditions of Use for the Services are an integral part of this Agreement. MerchantPro reserves the right to amend at any time the contents of the Terms and Conditions of Use. In this case, it shall notify the Client 30 days before the enforcement thereof by posting an announcement on certain pages of the Service or by communicating the announcement by other means.
10.2. The amendments shall come into force within 30 days as of the notification unless the Client expresses its explicit disagreement.
10.3. MerchantPro has the right to amend the Terms and Conditions of Use for the Services with immediate effect and with no prior notice, if subject to a legal obligation forcing it to amend the Terms and Conditions in a way that prevents from complying with the notice time stipulated above, for the purpose of fighting an unforeseen and immediate threat to the protection of the Services, mediation or users' protection against fraud, malware, spam, breach of personal data security or other threats against cyber security as well as in any other circumstances that require amendments with or without a significant impact on the parties' rights and obligations.
10.4 The Client shall have permanent access to the Terms and Conditions of Use for the Services, in order to be able to consult them at any time. Any new functionalities, instruments, facilities, or limitations developed and applied for the improvement of the Services, are also included in the object of this Agreement.
10.5 The use of the Services (access, navigation and registration of a Client's account, creation of a store) stands as a direct, full and unconditional agreement to comply with the Terms and Conditions of Use and with this Agreement.
Art. 11 Access to the Services MerchantPro
- It is prohibited to copy in whole or in part, to distribute any part or section of the MerchantPro Platform, regardless of the storage media used for copying, as well as to copy for the purpose of distributing or for any other purposes;
- It is prohibited to intervene in any way that might cause the malfunction of the MerchantPro Platform and of the Services, even if temporary, without the prior written approval of MerchantPro;
- It is prohibited to operate any alteration or modification of any part of the MerchantPro Platform, except for those reasonable alterations or modifications operated for the proper use of the MerchantPro Platform and of the Services for the purpose for which they were created;
- It is prohibited to carry out any action that adversely influences the fair, reasonable and permitted activities of the other Users or that intimidates, harasses or verbally or visually aggresses the other Users of the site and of the Services, including the accessing and use of the personal accounts of other Users;
- It is prohibited to carry out any action even by omission or any activity that might ease or encourage actions that infringe the Terms and Conditions under this Agreement or the legal provisions governing the legal execution of specific activities;
- It is prohibited to carry out any action that might adversely affect and interfere with the site security elements, with elements that prevent or limit the use or copying of contents or with elements that reinforce the site usage limits or the site content;
- The violations of this Agreement might result in the suspension of the access to the Services MerchantPro with or without any prior notice, as applicable.
11.2 The access to and the use of the Services requires the creation of an access account on the MerchantPro Platform. The Client hereby represents and undertakes full responsibility for any and all of the activities carried out using the account created on the MerchantPro Platform.
Art. 12 - Data Export
12.1 Depending on the Service Plan used, the Client may have access to the functionalities required for the exporting of data related to products. customers and orders, in the formats available in the account or on the MerchantPro Platform. MerchantPro cannot guaranty the export of data in another format than the one available in the Client's access account to the Services and undertakes no liability in relation to the way such data can be loaded on other informational systems.
12.2 Subject to technical availability, MerchantPro may analyse the possibility to export, upon the Client's request, other types of data than the ones provided at art. 12.1 and/or the export thereof in other types of formats than the ones available on the Client's access account to the Services. These services, if technically possible, will be provided against payment.
Art. 13 Cancellation and Deletion of the Access Account to the Services
13.1 The Client may cancel its account at any time. Upon the annulment of the access account to the Services, the online stores associated thereto will no longer be visible. The cancelled accounts, the associated online stores and the information corresponding thereto shall be automatically deleted, unless the access account to the Services is reactivated within maximum 30 days as of its cancellation. The reactivation of the access account to the Services requires the logging in into the account within the above-mentioned time.
13.2 MerchantPro may suspend or cancel at any moment and with no prior notice the access accounts to the Services which are suspected to be engaged in fraudulent or illicit activities, based on the use of the Services provided by MerchantPro or which are suspected of SPAM type activities, "phishing" activities or tother similar or which are suspected of having been created by automated means such as "bots".
13.3 MerchantPro may cancel the access account to the Services further to the lack of activity registered in the Client's account for a period exceeding 6 months unless the Client uses a paid Service Plan.
Art. 14 Exclusion of Certain Warranties
14.1 MerchantPro does not guarantee that the use of the Services complies with the Client's requirements and expectations.
14.2 The Services shall not be governed by any conditions, guarantees, or any other terms (including any implicit terms related to the quality, satisfactory compatibility according to description), except for the ones explicitly provided herein.
Art. 15 Confidentiality of Information
15.1 Each Party shall ensure the confidentiality of all information (including of the terms and conditions herein) and documents, including, but without being limited to, the information related to the commercial activity or trade or professional secrets, processes, know-how, etc. or methods used by the other Party in its activity, obtained by the other Party further to or in relation to this Agreement. To protect the rights and interests of the other Party to this Agreement, a Party may only disclose the confidential information related to the other Party which are requested by the internal authorised personnel or by the personnel of the companies authorised for the purpose of this Agreement or by the authorities and under the effects of the law.
15.2 Each of the Parties agrees:
not to use any confidential information related to the other Party for any other purpose than for the compliance with an obligation under this Agreement or for the exercising of any rights deriving from this Agreement;
not to copy and disclose any confidential information to any third party unless upon the written agreement of the legal representative of the other Party. However, both Parties have the right to disclose information related to this Agreement o the legal representatives of the affiliate companies, including to those who provide assistance in relation to this Agreement, subject to undertaking the corresponding confidentiality obligations.
15.3 The provisions of this chapter do not cover the confidential information in relation to which the recipient may provide evidence, in favour of the Party who disclosed, that:
- on the disclosure date, the information was already known by the recipient (without the obligation to maintain the confidentiality thereof);
- after the disclosure date, the information is legally obtained by the recipient in good faith from an independent third party who is not bound by any confidentiality obligation in relation to the relevant confidential information;
- upon disclosure, the information was fully known or communicated to the public by other methods than the recipient's negligence or by the violation of the limitations provided by this Agreement or by the Appendices hereto;
- the information was obtained independently by or on behalf of the recipient without access to any of confidential information;
- the disclosure is required by law, by court proceedings, by government bodies or institutions or by other regulatory authorities;
- a written agreement was issued for the disclosure thereof.
Art. 16 Limitation of Liability
16.1 The Parties agree that the information and the Services regulated hereby to be provided "as is", with no warranty of any kind whatsoever.
16.2 Subject to the provisions of clause 16.3, none of the Parties shall be held liable, under any circumstance, for indirect damages, such as, but without being limited to: loss of income or profits, loss of gain, loss of business, loss of goodwill, loss of transactions, loss of data, loss of use of a property, cost corresponding to the execution of obligations by replacing persons, equipment or services and idle-time costs, regardless of whoever such situations occurred, and whether they are caused by fault (including negligence), by the violation of contractual obligations or by any other reasons whatsoever, and whether or not they could have been reasonably predicted at the date of the Agreement.
16.3 Nothing at Article 16 shall exclude or limit the Client's liability in relation to:
- the compliance with its own payment obligation in relation to the Services within the terms and conditions of this Agreement;
- the degradation, damaging in any way the MerchantPro system, according to the specifications of this Agreement;
- the abusive use of the Services, including but not being limited to actions such as Spam, Scam, use of Bots, etc., which cause prejudices to third parties or to MerchantPro; the failure to comply with the confidentiality obligations and with the expressly indicated warranties;
- the failure to comply with the obligations governing the proper use of the Services;
- the failure to comply with the payment obligations, according to Art. 6.5, generated by direct or indirect expenses borne by MerchantPro or by direct or indirect claims filed by third parties against MerchantPro, further to the improper use of the Services by the Client.
16.4 The Client shall indemnify and hold MerchantPro harmless against any actions, losses, costs, damages, punishments, expenses, taxes (including borne legal taxes and/or which MerchantPro is bound to pay), court proceedings, claims or demands that are in any way related to this Agreement and brought against MerchantPro or to which MerchantPro is threatened by a third party and which result from the Client's use of the Services, or from any Client's intentional action or omission or negligence. The Client shall also grant MerchantPro, exclusively on the Client's expense, full power of attorney, the reasonably required information and assistance in the defence, settlement or writing off of any such claims. Furthermore MerchantPro holds a right to recourse against the Client for any potential damages incurred by MerchantPro in relation to any third-party claim and/or demand.
16.5 MerchantPro or the collaborators thereof undertake no liability for any losses of financial or commercial nature, and for any indirect or consequential loss the Client might incur. These include any losses of profit (whether incurred directly or indirectly), any loss of property or loss of company's reputation, or any loss of data.
16.6 MerchantPro shall not be liable for the losses or deletions of information occurred further to the Client's and Users' direct or indirect actions on the data. Upon the Client's request, if technically available, MerchantPro may analyse the possibility of recovering the data but provides no guarantee in relation to the possibility to recover all the lost information and provides no guaranty in relation to the integrity of the data obtained by the recovery operation. These services, if technically possible, shall be provided against payment.
16.7 MerchantPro or the collaborators thereof shall not be held liable for any loss or prejudice incurred by the Client, further to:
- the potential alterations MerchantPro might bring to the Services, further to the temporary or permanent outages by MerchantPro in the provision of the Services or further to the automatic and final elimination from the system of the accounts suspended for inactivity and of the information included therein;
- the loss, deletion, corruption or potential storage errors of the content loaded or transmitted by the Client while using the Services;
- the Client's failure to comply with the obligation to exclusively communicate accurate and genuine information related to the identity, contact data and any other details on the products traded by the online store (product name, discount, product description, images, etc.);
- the Client's failure to comply with the obligation to ensure the security of the access account and data.
16.8 The cumulative liability of MerchantPro for all the damages deriving from or related to this Agreement (regardless of the way in which they were caused) shall not exceed the price of the hosting subscription paid under this Agreement by the Client for the last 12 months or for the period preceding the event that gives rise to such claims if this period is shorter than 12 months.
Art. 17 Availability of the Service
17.1 MerchantPro reserves the right to interrupt the Services permanently, partially, or fully.
17.2 In case of a permanent total interruption of the Services, MerchantPro shall notify the Client, in writing, 30 days in advance and undertakes to fulfil all the ongoing contract obligations, up to the expiry of the paid Service Plans already purchased by the Client.
17.3 In case of a permanent interruption of a part of the Services, MerchantPro shall take all the steps required to notify the Client accordingly, 15 days in advance.
Art. 18 Assignment
18.1 Notwithstanding the provisions below, both MerchantPro and the Client have no right to assign, subcontract or estrange or otherwise sell one or all their rights and obligations under this Agreement to any third party, in general.
18.2 Any of the Parties may assign, novate, or otherwise transfer by any means permitted by the legal provisions in force any of its rights and obligations under this Agreement to one of its affiliate companies (or to its successors or the successors thereof, by merger or by the purchase of all its assets or of the assets thereof), with the information of the Party.
18.3 MerchantPro may subcontract any and all of its obligations under this Agreement to any third party, without the Client's approval, provided that MerchantPro ensures the exact execution by the third party of the obligations undertaken to the Client.
Art. 19 Intellectual Property Rights
19.1 Subject to the limitations and terms of this Agreement, MerchantPro grants to the Client a non-exclusive, non-transferable license for the use of the software programmes, equipment, and other materials available based on or in relation to the Agreement only and to the extent to which these are required for the use of the Services provided hereunder.
19.2 All the intellectual property rights over the software, including the software developed by MerchantPro upon the Client's order for the purpose of extending the functionalities of the MerchantPro Platform, brevets, equipment, or other materials including the documentation, provided to the Client based on or in relation to this Agreement, are and shall only be held by MerchantPro or by the suppliers thereof. The intellectual property rights over the graphic elements and components implemented in a customised manner at the Client's store level, upon the request thereof, belong to the Client.
19.3 SITENAME} shall take all the reasonable steps required to ensure, without undertaking any warranty liability, that the Client's use of the software, equipment and other material provided by MerchantPro in relation to the Services shall not infringe the copyrights or intellectual property rights of a third party.
Art. 20 Information on Trademarks
20.1 The MerchantPro name and MerchantPro logo are registered trademarks of SC ShopMania Net SRL. The SC ShopMania Net SRL trademarksshall not be displayed or used under any form without the prior express agreement of the holder. If the Client uses the MerchantPro trademark and signs, without the agreement of SC ShopMania Net SRL, the Client shall indemnify MerchantPro to a level corresponding to the prejudices caused.
Art. 21 Cessation of the Agreement
The Agreement may cease in any of the circumstances below:
21.1. By unilateral denunciation, by both Parties by sending a prior notice of 30 (thirty) days to the other Party and without any other prior formality, the denunciation occurring immediately on the date stipulated by the notice, without the intervention of any court being required; (i) if MerchantPro denounces this Agreement, the Client shall be indemnified by the rest of the paid Service Plan, between the date of the denunciation and of the expiry of the Service Plan; (ii) if the Client denunciates this Agreement before term, MerchantPro shall keep the difference of the paid Service Plan, between the date of the denunciation and of the expiry of the Service Plan.
21.2 By termination, by the Supplier for the Client's failure to comply or to properly comply with any of its obligations under this Agreement; in this case, the Supplier shall transmit a written notification to the Client, with the Client's possibility to remedy the failure within 7 days as of the receipt of the notification, otherwise the Agreement shall be considered as automatically terminated, with no other prior formality and without the intervention of any court.
21.3 By termination, by MerchantPro, without notification and without any prior formality if the Client violates its obligations provided at art. 8.1 points f), g), h), m), n), p) and art. 13 of this Agreement.
21.4 If any of the Parties enters insolvency and/or procedures are initiated to declare the bankruptcy, dissolution and/or liquidation thereof, the Agreement shall be considered as terminated as of right by notification, without any prior formality, the termination occurring immediately on the date of the communication and without the intervention of any court. If the Agreement is terminated due to the Client's fault, the legal waiver thereof shall operate, without any prior notification and without the intervention of a court, in relation to the return of any amounts of money, in whole or in part.
21.5 Further to the cancellation of the Client's access account to the Services and subsequent deletion of all the related information, according to Art. 13.
Art. 22 Notifications / Communications
22.1 Any communication to be issued in relation to the aspects regulated by this Agreement shall be transmitted by using the identity data included in this Agreement or in case of modifications, the updated data as per the Client's account.
22.2 All the notifications and the correspondence shall be made in writing and transmitted by registered mail with confirmation of receipt or by e-mail.
Art. 23 Special Provisions
23.1 The signing of this Agreement does not involve the establishment of an exclusive trade relation between MerchantPro and the Client.
23.2 The Client accepts and agrees with not being granted any right to use any element in the installations, from the operational facilities or from other infrastructure used or made available by MerchantPro for the provision of the Services, other than the right to use the Services, as described herein. The Client shall receive no right or title over the network or a part thereof, over the installations or equipment held or used by MerchantPro in order to provide the Services.
Art. 24 Penalties
24.1 Any delay in payment exceeding by 14 calendar days the due date stipulated by the proforma or by the Appendix to the invoice if an invoice was issued, forces the Client to the payment of delay penalties of 0.10%/day of the value of the due amount.
Art. 25 Force Majeure
25.1 Force Majeure exempts from liability the Party invoking it, as provided by the law, subject to the notification thereof to the other Party.
25.2 Any event independent from the Parties' will, unpredictable and insurmountable, occurred after the conclusion of the Agreement and which prevents the Parties from fully or partially complying with their obligations hereunder, shall be considered a Force Majeure event.
25.3 The Party who invokes the Force Majeure has the obligation to communicate it to the other Party, in writing, within maximum 5 (five) days as of occurrence thereof, and the Force Majeure evidence, along with the warning on the force Majeure effects and potential duration, shall be communicated within maximum 15 (fifteen) days as of occurrence. The reference date shall be the date on the dispatching post stamp. The Party invoking the Force Majeure event has the obligation to inform the other Party of the cessation thereof within maximum 5 (five) days as of cessation. If such circumstances or the consequences thereof exceed 3 months, each contracting Party may waive the further performance of the Agreement. In this case, none of the Parties has the right to claim damages from the other Party, but they have the responsibility to fulfil all their obligations up to the date.
Art. 26 Final Clauses
26.1 Any waiver to any right or remedy under this Agreement shall be made in writing. Unless otherwise expressly provided herein, any waiver shall be effective only in the case and for the purpose it was issued.
26.2 Each of the provisions of this Agreement is independent, therefore, if any such provision is or becomes void or unenforceable under the law, this shall have no effect on the validity and enforceability of the rest of the provisions herein, and the Parties shall take all the reasonable steps required to negotiate in good faith the replacement of the relevant provision by one or several provisions satisfactory to any relevant authority in the field.
26.3 Any person who accepts this Agreement on behalf of any of the Parties, represents and warranties that he/she/they was/were fully authorised and that all the measures required for expressing a valid consent on behalf of the represented Party were taken.
26.4 This Agreement is governed by the Romanian law. The Parties hereby agree that their rights and obligations, as well as the interpretation and performance of the Agreement shall be governed by the Romanian legal provisions in force.
26.5 Any litigation deriving from or in relation to this Agreement, including in relation to the conclusion, performance, or termination hereof, shall be settled by the relevant courts in Bucharest, Romania.
26.6 This Agreement may be amended at any time by MerchantPro. The Client has the obligation to periodically reread the contents of this Agreement. The amendment of this Agreement shall be communicated by MerchantPro exclusively through the MerchantPro Platform, in the area dedicated to this type of activities, according to art. 10 of this Agreement.
26.7 This Agreement along with the Appendices which are integral part hereof represents the Parties' will and any other verbal agreement preceding this Agreement becomes null.
26.8 If any of the Parties fails to comply with its obligations hereunder, and the other Party does not request the compliance thereto or any financial equivalent, it does not mean that the Party waived the relevant right. Any clause void by operation of law shall not affect the validity and enforceability of the other clauses.
26.9 According to the provisions of art. 1.203 of the Civil Code, upon the execution of this Agreement, the Client represents and expressly accepts the following clauses of this Agreement: 7.5, 8.1 and 16 (in relation to the limitation of liability); 21.3 (in relation to right to unilaterally denunciate the Agreement); 7.4, 7.6, 8.1, 11.1, 12.1, 13.2, 13.3 (in relation to right to suspend the execution of the obligations); 9, 20.1, 21.2 (in relation to revocation of rights); 26.5 (in relation to governing law); 26.6 (in relation to the jurisdiction of the courts).
Appendix No. 1 - Terms and Conditions governing the Processing of Personal Data
The terms and conditions governing the data processing reflect the Parties' agreement in relation to terms on the processing of personal data belonging to the data subjects, in relation to the General Data Protection Regulation.
"To process/processing/processed", "Controller", "Processor", "Data subject" and any other definitions that are included in this Appendix or in the Agreement shall have the meaning assigned by Regulation EU 2016/679 of the European Parliament and Council on the Protection of Personal Data ("GDPR").
"Personal data of the data subjects" - refers to the personal data, according to meaning of GDPR, processed by MerchantPro ("Processor") on behalf of the Client ("Controller"), within MerchantPro's activity consisting in providing services for the creation and hosting of online stores according to the Agreement.
"Data protection law" - means Regulation EU 2016/679 the European Parliament and Council on the Protection of Personal Data ("GDPR") as well as any local legal acts on data protection.
"Sub-processor" - means any person (including any third party, except any employee of MerchantPro) appointed by or on behalf of MerchantPro to process personal data on behalf of the Client.
"Processing details" - means the processing details provided by this Appendix which sets up the purpose, nature, and purpose of the processing by MerchantPro, the duration of the processing, the types of personal data and the categories of data subjects.
"Services" - means the Services to be provided by MerchantPro for the Client according to the provisions of the Agreement.
"Third-party services" - are services provided by third parties which the Client associates to the Services provided by MerchantPro or which are integrated in the MerchantPro Services.
"Validity" - refers to the validity of the Terms and Conditions governing the data processing, as of the enforcement thereof and until the end of the Service Agreement for the creation and hosting of online stores concluded between MerchantPro and the Client.
All the other terms shall have the meanings assigned by the Agreement.
3. Processing of Personal Data
The Parties agreed on the following provisions in addition to those stipulated by the Agreement:
3.1 The data processing terms and conditions are in force as of 25 May 2018 and remain in force until the full deletion by MerchantPro of all the personal data belonging to data subjects, according to the provisions of this Appendix.
3.2 The Client, MerchantPro and the employees thereof shall comply with the legal provisions on data protection and shall comply, based on the provisions of this Appendix, with any request or instruction of the other Party, which is directly governed by the data protection law.
3.3 The Client and MerchantPro agreed that, in terms of the data protection law, the Client hold the quality of Controller in relation to all the Client's data which are personal data and MerchantPro holds the quality of Processor.
3.4 The Client confirms that all the personal data provided to MerchantPro were collected and disclosed according to data protection law, and MerchantPro has the right to process the personal data.
3.5 MerchantPro shall process personal data on behalf of the Client, based on Client's documented instructions only for the purpose of providing the Services to the Client. If MerchantPro has the legal obligation to process the data for other purposes, it shall inform the Client in advance in relation to these processing operations, unless MerchantPro has the legal obligation to not disclose this information. MerchantPro has the right to collect anonymous data on the use of its Services sale and to randomly make them public.
3.6 MerchantPro shall comply with its data processing obligations according to the provisions of this Appendix, unless MerchantPro has the legal obligations to enforce other measures in relation to data processing.
3.7 MerchantPro shall inform the Client, to the extent permitted by the law, in the event of a direct receipt of claims or complaints from any data subject or from the authorities, in relation to processing of personal data.
3.8 MerchantPro shall take all the technical and organisational measures required to ensure the proper data security level according to article 32 din GDPR and, also, measures against the unauthorised or illegal processing of the personal data of the personal data and against the loss or accidental destruction, or deterioration of the personal data. MerchantPro shall ensure that the persons appointed to process personal data undertook to keep the confidentiality thereof or have the statutory obligation to confidentiality.
3.9 MerchantPro shall not transfer personal data outside the European Economic Area unless the Client express its prior written agreement to this purpose. MerchantPro has the obligation to comply with the reasonable instructions previously transmitted by the Client in relation to the processing of personal data.
3.10 MerchantPro shall assist the Client in relation to all the requests to access personal data, according to data protection law, requests that may be received from the data subject or from any other person. If, in spite of the assistance offered through the technical and organisational measures provided by MerchantPro, the Client cannot respond to these requests by using the functionalities available under the Services and requests the direct assistance of MerchantPro, MerchantPro may request a fee for its intervention, depending on the time spent by MerchantPro to this action, fee to be communicated to the Client in advance.
3.11 MerchantPro shall promptly notify the Client with no unreasonable delays, by using the contact data provided thereby, if MerchantPro suspects or notes any current incident of illegal destruction or accidental loss or disclosure or access to the Client's data that might include personal data and shall take all the steps required to mitigate the impact of these incidents and secure the data. The Client is solely liable for the accuracy of its contact data provided to MerchantPro and which MerchantPro will use to notify the Client in relation to the occurrence of such incidents.
3.12 MerchantPro shall provide the Client with the information reasonably required to prove the compliance with the obligations provided by article 28 of GDPR and shall allow and contribute to audits, including inspections, carried out by the Client or by another auditor appointed by the Client. Notwithstanding any of these rights, MerchantPro may, at its absolute discretion, use independent auditors to verify the accuracy of the security controls related to the Services provided to the Client as well as the Client's compliance with the obligations under this Appendix. For this purpose, the Client shall submit to MerchantPro a written request for an audit 30 days before the date foreseen for the performance of the audit. MerchantPro and the Client shall agree in advance the audit commencement date, the purpose and duration thereof, as well as any potential confidentiality and security measures and limitation to be observed. MerchantPro may request a fee for hosting the audit, fee to be communicated in advance to the Client. MerchantPro may object in relation to the auditors proposed by the Client, if MerchantPro considers that the auditors do not hold the required qualifications, are not independent, are direct or indirect competitors of MerchantPro or are considered as unsuitable to the purpose.
3.13 The Client is solely liable for the proper use of the Services in terms of its compliance with the obligations as Controller.
3.14 The Client is solely liable for the security of the authentication data, of the systems and devices the Client uses for the direct or indirect accessing of the Services.
3.15 The Client is solely liable for the security of the personal data belonging to the customers the Client choses to store or transfer outside the locations belonging to the Services.
3.16 After the cessation of the Services, MerchantPro shall delete the existing information in its possession according to the terms and conditions and with the internal and European Union laws.
4. Processing by Third Parties
4.1 Both Parties agree on the provisions below in relation to the processing carried out by third parties, hereinafter referred to as Sub-processors:
(i) The Client authorises MerchantPro to appoint (and to allow each Sub-processor to appoint) Sub-processors according to this article 4.1.
(ii) MerchantPro may continue to use those Sub-processors already employed by MerchantPro on 25 May 2018.
(iii) MerchantPro shall take all the reasonable actions to ensure that its agreements with the Sub-processors include terms similar to the provisions on personal data protection included in this Appendix.
(iv) MerchantPro shall transmit to the Client brief notifications in relation to the appointment of a new Sub-processor, including details on the processing to be performed. If, within 5 working days as of the receipt of this notification, the Client notifies MerchantPro in writing of any objections (for reasonable grounds) to the proposed appointment, MerchantPro and the Client shall cooperate in good faith to operate any modification reasonable from the commercial point of view in the provision of the Services MerchantPro whereby to avoid the use of the relevant Sub-processor.
(v) If MerchantPro is not able to operate the requested modification of the Services according to provisions of article 4.1 (iv), within 20 de working days as of the receipt of the Client's notification objecting to the proposed Sub-processor appointment, the Client may waive the use of those Services that require the use of the proposed Sub-processor or may waive the use of all the Services according to the provisions of the Agreement if the provision of all the Services requires the use of the proposed Sub-processor.
4.2 The Client accepts that, in case a data subject files a court action or send a complaint resulting from any action or omission of MerchantPro, MerchantPro shall not be held liable to the extent to which this action or omission resulted, directly or indirectly, from the Client's instructions, in spite of the information received from MerchantPro in relation to violation of the GDPR norms by the Client's instructions or from the Client's improper use of the Services.
5. Application of the Processing
MerchantPro processes the personal data in order to be able to provide the Services under the Agreement concluded with the Client and to comply with any legal obligation deriving therefrom.
6. Nature and Purpose of the Processing
- Use of the personal data to configure, operate, monitor and a provide the Services under the Agreement;
- Management of the Client's and Users' access accounts to the Services and of the Services we provide;
- Operating adjustments or updates to the Services we provide (where we have the obligation to operate adjustments and/or updates);
- Backup of the personal data for security purposes;
- Processing personal information, including data transmittal, data recovery, access to data;
- Compliance with our legal obligations;
- Access to network to allow the transfer of personal data;
- Execution of the Client's written instructions according to the provisions above and/or of the Agreement;
- transmittal of functional e-mails (non-marketing) to the data subjects, on behalf of the Controller;
7. Categories of Personal Data
MerchantPro hereby process the following types of personal data:
- Identity data of the access account to the Services, such as the number of the account, device code, IP address, history of the Service supplied by the Client to the data subjects etc.
- The personal data, such as the name, e-mail address, address, date of birth, phone number of the Client's customers/users/visitors;
- History of the product data and information;
- Identity data of the Client's customer/user/visitor's representatives;
- Upon the Client's explicit option, as part of the use of the Services: Personal Identification Code, other additional personal data that MerchantPro cannot foresee.
8. Categories of Data Subjects
The categories of data subjects are:
- Employees, contractors, temps, agents, clients, suppliers or other persons whose personal data are to be processed as part of the services provided to the Client;
- Client's customers/users/visitors.
9. Duration of the Processing
9.1 MerchantPro shall process personal data no longer than required for it to comply with its obligations under the Agreement concluded with the Client or to comply with any legal requirement on the processing of personal data.
9.2 in case of discrepancies between the terms of this Appendix and the Agreement between the Client and MerchantPro, the terms included herein shall prevail.
10. Data Deletion
10.1 Deletion of Data during the Validity Period
- When the MerchantPro Services provide the Client with the functionalities required for the commencement of the deletion process envisaging the personal data of the data subjects, after the commencement of the deletion process by the Client, MerchantPro shall delete such data from its informational system as soon as possible and within a period of maximum 60 days, unless the EU or local legislation require MerchantPro to store such data;
- When the MerchantPro Services do not provide the Client with the functionalities required for the commencement of the deletion process envisaging the personal data of the data subjects, MerchantPro shall respond to the Client's requests top delete data to the extent to which the required operations are possible and is the requests are considered as reasonable in relation to the legal provisions, unless the EU or local legislation require MerchantPro to store this data. MerchantPro may request an additional fee for these deletion operations and shall inform the client in advance of the value of this fee and of the calculation thereof.
10.2 Deletion of Data after the Expiry of the Validity Period
Upon the expiry of the validity period, the Client authorises MerchantPro to delete all its customers' personal data from its systems, according to the legal provisions in force. MerchantPro shall delete this data from its informational systems as soon as possible and within a period of maximum 60 days unless the EU or local legislation require MerchantPro to store such data.
By accepting the data processing terms and conditions, the Client authorises MerchantPro to process the personal data belonging to the customers/users/visitors according to the legal provisions and subject to the Client's preferences in relation to the processing operations, according to setting defined by the Client for this purpose within the Services.
12. Third-Party Services
12.1 If the Client USES third-party services, the Services provided by MerchantPro may allow the third-party services used by the Client to access the customers' personal data, for the purpose of establishing the connectivity between the third-party services and the Services provided by MerchantPro.
12.2 The Client has the obligation to ensure that the third-party services that access personal data are processed securely, in compliance with the legal provisions and based on the conditions established required by the Client with the third party, these data processing terms and conditions not being enforceable in the relation between the Client and the supplier of the third-party services who processes, in its turn, the personal data belonging to customers, including the personal data transmitted to or by the third-party services.
12.3 MerchantPro shall in no case be liable for the losses caused by the use of third-party services used together with its Services - MerchantPro.
13. Final Clauses
13.1 The Appendix Data Processing Terms and Conditions is an integral part of the Agreement and shall not be interpreted other than in relation thereto.
Appendix No. 2 - E-Mail and SMS Sending Policy
The use of the E-mail and SMS Sending Services shall comply with all the legal requirements in force on spam or unsolicited commercial messages, confidentiality, security, obscenity, defamation, intellectual property, pornography, terrorism, national security, gambling, child protection and other similar. The Client is responsible for being aware of and understanding the laws governing these Services.
The Client's use of the E-mail and SMS Sending Services shall comply with the Confidentiality Policy of MerchantPro. The Client is responsible for reading and understanding the Confidentiality Policy governing the use of these Services.
The Client shall take all the reasonable commercial steps to avoid the sending of sensitive personal data, including information on the medical or health condition of an individual, race or ethnical origin, political opinions, religious or philosophical beliefs or other sensitive personal data (hereinafter collectively, „personal data"). The Client is responsible for reading and understanding its obligations in relation to personal data.
- the use of e-mail and phone number lists without permission, i.e., lists where the recipient did not explicitly agreed to receive communications by e-mail and/or SMS from the Client);
- the use of purchased or leased e-mail and phone number lists;
- the use of e-mail addresses, domain names or e-mail servers of third parties without proper permission;
- the sending of e-mails to non-specified addresses (e.g., but without being limited to, firstname.lastname@example.org, email@example.com or firstname.lastname@example.org etc);
- the sending of e-mails and SMSs which result in an unacceptable number of spams or UCE claims (even if the e-mails as such are not actually spam or UCE and/or even if the SMSs as such are not actually spam);
- the failure to comply with any request from any recipient to be eliminated from the correspondence list within 10 days as of the receipt of the request to this purpose;
- the failure to include in any e-mail of a link to the current Confidentiality Policy governing the relevant e-mail;
- disguising the origin or the subject of a communication by email and/or SMS or counterfeiting or manipulation of the original e-mail address or of the sender's identity, of the subject line, of the headers or of the information on the transmittal path for any e-mail and/or SMS;
- the failure to include in each e-mail of Client's valid contact information or of a functional link towards the Client;
- the inclusion of materials that encourage a recipient to send the e-mail and/or SMS to another recipient.
In case MerchantPro detects or is informed of any SPAM-type of activities carried out by or in relation to the Client and which involve any type of action of technical, legal, financial, etc. nature from MerchantPro, MerchantPro shall issue a proforma to the Client for the value of the services provided in such case, with the Client's obligation to pay it within 14 (fourteen) days as of the communication thereof. The value of the Services shall be calculated based on the time and resources allocated by MerchantPro, as well as based on the costs borne by MerchantPro.
Appendix No. 3 - Service Level Agreement
This Agreement of the Service Level Agreement type, (hereinafter "SLA") represents the Policy governing the Services provided by MerchantPro.
"Essential Services" - set of predefined activities provided by MerchantPro upon the Client's request and in the Client's interest, for the purpose of allowing the operation of the following components of the MerchantPro Platform: placing orders by third parties on the online store created by the Client, order processing by the Client, managing the product catalogue.
"Percentage of Monthly Uptime" - percentage of availability of any Essential Service, calculated based on the formula below:
Percentage of Monthly Uptime = (Duration of the complete monthly operation cycle in minutes - Monthly Downtime in minutes) / Duration of the complete monthly operation cycle in minutes * 100
Service Level Agreement
For the Essential Services used by the Client, MerchantPro shall take all the reasonable steps required to provide a percentage of monthly uptime of at least 99.9%, during any invoicing cycle. if any of the Essential Services purchased by the Client fails to comply with the SLA, the Client will have the right to request a compensation, according to art. 7.3 of the Terms and Conditions.
The Client shall send the compensation request to MerchantPro in writing, by e-mail, within 3 calendar days as of the occurrence of the incident and shall include the information stipulated below:
- Date and time of the incident;
- The IP where the incident was noted;
- Other details specifically requested by MerchantPro to identify or confirm the incident that entailed the unavailability of the Services.
If the Client fails to provide, by its request for compensation, the information herein, MerchantPro reserves the right to refuse the compensation.
Further to the receipt of the request for compensation from the Client, MerchantPro shall verify the transmitted information and shall respond to the Client's request within 14 working days.
Exception from the Service Level Agreement
This SLA does not apply in the event of unavailability, suspension or termination of the Services or any other performance issues, directly or indirectly:
(i) caused by factors outside the reasonable control of MerchantPro, including any Force Majeure event or Internet access or related issued outside the object of the Essential Services;
(ii) resulting from the Client's action or lack of action, in relation to notifications sent by MerchantPro regarding the level of employed resources or reaching certain limits of use;
(iii) caused by the Client's equipment, software or other technology and/or equipment, third-party software or technology (other than the third-party equipment under the direct control of MerchantPro;
(iv) resulting from the suspension of termination of the Client's right to use the Services, according to the terms and conditions.
If the availability is influenced by other factors than those used in calculating the Monthly Uptime Percentage, MerchantPro shall analyse the potential requests for compensation sent by the Client but cannot guarantee the settlement thereof.