1. Initial provisions

1. These GjirafaTech Terms of Services (further referred to as Terms) set the binding rules upon which the company GjirafaTech s.r.o., ID number 05754143, with registered seat at Komunardů 1584/42, 170 00 Praha, Czech Republic (further referred to as Provider), provides their Captain cloud based services (further referred to as Services) to the other party on whose behalf these Terms were accepted (further referred to as Customer, jointly referred to as the Parties).

2. By signing up for Services in Services interface, or by signing our Services order, the Customer is agreeing to be bound by these Terms and all terms and conditions incorporated by reference in these Terms. The options made in the Services interface by the Customer, the Services order, SLA (in case of Premium Services), these Terms, all terms and conditions incorporated by the reference in these Terms, and other documentation explicitly agreed by the Parties based on which the Provider provides the Services form the entire Agreement for Services (further referred to as Agreement). The terms used in aforementioned contractual documentation, which forms the integral part of the Agreement, shall have the same meaning as ascribed to them in these Terms.

3. For the avoidance of doubts, these Terms shall not apply to any other services than Captain services provided by the Provider. Any other terms of Provider, which are not incorporated by the reference or explicitly agreed by Parties, are excluded from governing provision of these Services. The application of any terms and conditions of the Customer or of any document of similar nature unless expressly stated otherwise in the Agreement is excluded.

4. The Customer is obliged to provide the Provider for the purpose of concluding the Agreement and for the purpose of its fulfilment, namely for the rendering of the Services, with true, accurate and actual information which the Provider may rely upon. The Customer represents and warrants that it has the right and authority to enter into this Agreement and perform its obligations hereunder. The Customer acts as entrepreneur and declares that under no circumstances falls within the legal definition of consumer.

2. Services

1. Customer may order Services by signing up for Services in Services interface (further referred to as Standard Services) or by entering into explicitly agreed Services order (further referred to as Premium Services). Each of the aforementioned is placement of an order (further referred to as Order) indicating the purchase of Services, its type, payment plan and in case of Premium Services the agreed level of the Services, constituting integral part of an Agreement. Services descriptions and its parameters, pricing scheme, billing methodologies, usage requirements and related provisions are located at https://docs.captain.gjirafa.tech The Customer acknowledges that Provider may at its sole discretion modify the Services from time-to-time.

2. The Provider may provide the Customer with the documentation in order to enable the efficient use of the Services. In such case the disposal with the documentation is subject to a limited, a nonexclusive, non-transferable, non-sublicensable and revocable license, for the period of the Agreement and to the extent as enabled by the Provider upon providing the Services and as necessary to the use of the Services that is provided by the Provider to the Customer.

3. The Provider will enable the use of the Services for the fees stated in the Order and/or in related documentation by provision of the access rights to the online Services to Customer.

4. If provided by the Provider via Services interface and its designated functionality the Customer will also have access to Provider´s general support resources including knowledge bases, guidelines, FAQ, and direct support as may be provided from time to time at Provider´s absolute discretion.

5. The Customer is allowed to use the Services solely for its own purposes. The Customer will not make the Services available for any third party namely by sharing the Services, reselling or enabling to purchase or use of the Services through the Customer (shall not apply to end-users/personnel of Customer using the Services on behalf of the Customer), granting the access to the Services or by any other means. For the avoidance of doubts, when the functionality of Services is by design based on the access of third parties to the interface included for this purpose into the Services such access of third parties and rendering of the services based hereof is not considered as a breach of this clause.

6. The Customer may be entitled to configure the Services and its parameters. Such configuration shall be done solely via Services interface and its designated functionality and it is at Provider´s sole discretion what parameters are configurable. The Customer acknowledges that it bears the sole responsibility for the specific configuration made and/or not made within the Services, for legal compliance of Customer´s use of Services (including functions/configuration settings made by the Customer within Services as permitted by the by the design of Services interface) and its particular fit (including adequateness in terms of technical and security measures) for the purpose of Customer´s use of the Services.

7. The Provider may upon its sole discretion provide to the Customer free trial of the Services by providing to the Customer the access to the Services interface, only for the purpose of testing the functionality of the Services for a maximum period of 14 calendar days and by providing maximum of equivalent 50 EUR for such usage of the Services (further referred to as Free trial). All Free trial Services are provided solely on AS IS basis without any warranty. The Customer acknowledges and agrees that its usage of Free trial Services may be suspended or terminated at any time upon the sole discretion of the Provider. In any case, the Free trial Services will be terminated by the Provider upon the termination of free trial period stated above or upon exceeding of 50 EUR in total usage charges as determined by the rates set forth on https://captain.gjirafa.tech/pricing, whichever occurs first, unless the Customer concludes the Order for Services with Provider according to section 1 of this article.

3. Rights to the Services, content and to the Intellectual property

1. The Provider reserves all rights, title, and interest in the Services, and Provider or its licensors retain all ownership in all intellectual property rights related to the Services and/or website through which the Services is accessible.

2. Customer reserves all rights, title, and interest in all content, data and information, including any third-party content, data and information, made available, displayed, transmitted or otherwise provided to Provider in connection with Customer’s access to or use of the Services, whether originating from the Customer, its users, end-users or others (further referred to as Customer content), and Customer or any other party represented by the Customer shall retain all ownership in all intellectual property rights related to Customer content. Customer hereby consents to Provider’s use of Customer Content to provide the Services to Customer as specified herein.

3. The Services and the software used by the Provider within the Services may be associated, may include or may be used together with any know-how, patents, trademarks (registered or unregistered), domain names, software, copyright protected works, databases, registered designs, utility models, semiconductor topography rights or with any other subject of the intellectual property (further referred to as Intellectual property).

4. Nothing in the Agreement or in any of its part shall institute any transfer of any rights to the Services and/or any software used by the Provider within the Services or to the Intellectual property from Provider or from any third person to the Customer or to any third party. The right of the Customer to use the Services according to these Terms remains unaffected.

5. The Provider may upon its sole discretion provide a special Software Development Kit for the particular Services and/or its part. The Software Development Kit (further referred to as SDK) encompasses various components (like files and libraries with codes, documentation, guidelines, other materials) and can be provided to the Customer, so that the Customer is able by himself

   • integrate the functionality of the respective Services within the environment chosen by the Customer (such as website, mobile app etc.) provided that the respective SDK supports the particular platform or environment
   • enhance the use of Services for himself otherwise.

6. The Customer is only allowed to use SDK and the product created by the Customer based on the SDK (further referred to as SDK Product) in connection with Captain Services. The use of SDK is subject to the license under the Article 4 of these Terms, however the Customer is not allowed to make the SDK accessible to any third person except for the development of the SDK Product. The provisions of these Terms related to the Services shall adequately apply to the SDK and its use by the Customer unless expressly agreed otherwise in the Agreement or in the Service Order. Especially the provisions of the Article 7 (Due use of the Services), Article 14 (Export restriction, embargoes), Article 15 (Confidential information), Article 16. (Term and termination), Article 17. (LIMITED WARRANTY), Article 18 (LIMITED LIABILITY), Article 19. (Indemnity) shall apply with respect to SDK and to the use of SDK by the Customer.

7. Upon the use of the SDK the Customer does not acquire any rights to the SDK other than the license under the Article 4 unless modified in the Agreement. Any use of the SDK Product is subject to the same restriction as is the use of the SDK, however the Customer may make the SDK Product available to the third persons based on the nature of the Services. The Customer is obliged to cease the use of the SDK Product upon the termination of the Agreement. If the Customer ceases to be authorized to make accessible or distribute the SDK Product it is obliged to make all necessary steps to immediately withdraw the SDK Product from any and all channel used for sharing or distribution of the SDK Product. The terms and conditions of third parties such as software or services providers, platform or operation systems operators may further apply to the development and use of the SDK Products. In no event such third party terms and conditions or any other documents may affect or modify the terms and conditions for the use of SDK and/or SDK Products as stated in the Agreement.

8. The Provider can upon its sole discretion cease the support for the SDK or terminate the provision of the SDK in whole or in part. The Provider can change, develop or update the SDK without prior notice to the Customer. It is the sole responsibility of the Customer to change, develop or update the SDK Product accordingly. In some instances the changes to the SDK may cause reduction of functionality of the SDK Product, require its changes or otherwise affect the SDK Product. The Provider is authorized to require that the Customer conducts the necessary changes to the SDK Product and such timely changes may be the condition for further use of SDK and/or SDK Product by the Customer. The Customer is not entitled to any compensation or any reimburse of any manner for any impact of the changes of SDK on the SDK Product.

4. License

1. The Provider grants hereby a nonexclusive, non-transferable, non-sublicensable and revocable license or sublicense to the SDK to the Customer under the conditions as set out in these Terms (further referred to as License). The License according to this Article involves any change to the SDK, all and any its Improvements and Editions under the Article 5 of these Terms.

2. Based on the License the Customer is entitled to use the SDK as part of the Services in the manner and to the extent as enabled by the Provider upon providing the Services and to the extent necessary to the use of the Services by the Customer.

3. The license is granted as of the Effective date under the Agreement. The duration of the License is limited to the term of the Agreement. The license is granted worldwide unless restricted in the Agreement.

4. The License to the SDK is restricted in the same manner as is restricted the access and availability of the Services.

5. Except the License as stated in this Article the Customer does not acquire any title or proprietary right to the SDK nor to any Intellectual Property.

6. The Customer is not allowed to

   • examine the programming code of the SDK and reverse-engineer the SDK
   • create copies of the SDK create the derivative work from the SDK, change the SDK, modify the SDK in any manner (except as permitted by these Terms for SDK Product)
   • delete, modify or replace any proprietary mark or any other text in the SDK (except as permitted per functions of the Services)

5. Improvements, Editions

1. The Provider can from time to time and upon its sole discretion launch

   • improvements of the Services and/or of the software used within Services including the updates, patches, error corrections, new functions, developments and adjustments (further referred to as Improvements)
   • new versions or subversions (further referred to as Editions) of the Services and/or of the software used within Services.

2. The Provider is entitled to request the reasonable cooperation of the Customer necessary to

   • implement the Improvements into the Services and/or into the software used within Services provided to the Customer under the Agreement
   • implement the new Edition of the Services and/or of the software used within Services provided to the Customer under the Agreement.

3. The Provider is obliged neither to maintain nor support the previous Editions of the Services and/or of the software used within Services or where the Improvement is available the unimproved versions hereof.

4. If Customer fails to provide the necessary cooperation under the section 2 of this Article 5 any fault or lack in the performance of the Services and/or of the SDK due to unimplemented Improvement or new Edition is attributable solely to the Customer.

5. The Improvements and new Editions of the Services and/or of the SDK may be reflected in the documentation under the section 2 of the Article 2 of these Terms. In such case the Provider will provide the new version of documentation to the Customer.

6. Equipment, security measures

1. The Customer is solely responsible for procurement of

   • the equipment (both hardware and software) necessary to the use of the Services
   • the sufficient (in terms of capacity and reliability) internet connection on the part of Customer
   • other infrastructure as may be necessary for rendering of the particular Service (e.g. the network connection) and the proper functionality hereof.

2. The Customer shall endeavour to prevent its equipment from any virus, malware, spyware or any similar malicious software.

3. The Customer is obliged to undertake such measures as may be necessary to avoid unauthorized access to the Services. The Customer will namely ensure that any access rights issued by the Provider is handled properly so that only the duly authorized persons on the Customer´s part may use it. In the event of unauthorized access or breach of the confidentiality of access rights to the Services the Customer shall promptly notify the Provider.

4. The Provider is entitled to immediately suspend the access to the Services in case of identified or suspected unauthorized access to the Services.

7. Due use of the Services

1. The Customer is allowed to use the Services as set forth in these Terms for the duration of an Agreement, only to the extent as enabled by the Provider upon providing the Services however at the maximum and to the extent necessary to the use of the Services and for the purpose of the Services designated by the Provider. The Customer´s usage of the Services is restricted in the same manner as is restricted the access and availability of the Services. The Customer is allowed to use the Services only in compliance with any applicable laws, namely with the law applicable in the Czech Republic, in the country where the Customer is resident and in the country subject to which jurisdiction the Customer conducts its activities using the Services.

2. The Customer is obliged to ensure and it is its sole responsibility that

   • Customer obtains any statutory approval necessary for its activity for which the Services are used and for the fulfilment of any obligations hereto
   any purpose for which the Services are used is compliant with any applicable laws and good manners
   • Any content created, generated, stored, deleted or otherwise processed by the Customer or
   any third party with Customer´s consent or on behalf of Customer using the Services hereto and/or its processing are compliant with any applicable laws and good manners
   • Customer fulfils any obligations under any applicable law while processing of any personal data using the Services hereto.

3. The Customer will namely not use the Services for any content which

   • contains any virus, malware, spyware or any similar malicious software or code or any program designed or likely to damage or interfere with any software and/or Services or their part, or to obtain unauthorized access to the Services or any part thereof
   • infringes any Intellectual property namely any trademark, patent or copyright protected work infringes any honor or goodwill of any entity (namely due its false or defamatory nature)
   • contains “spam”, unsolicited commercial and/or bulk email messages
   • is unlawful, namely pornographic, obscene, libelous, harassing, deceptive, threatening, fraudulent
   • supports illegal acts or conduct of any manner.

4. The Customer will neither use the Services nor attempt to use the Services in a manner that will or can impair the proper operation of the Services or any part hereof or the due use of the Services by the other customers. The Customer shall bypass neither any access restriction to the Services nor change its parameters or operation otherwise than through the means designed hereto by the Provider. The Customer is not allowed to change any software used within the Service by the Provider, examine the programming code of such software and reverse-engineer the software, create copies of the software and/or the derivative work from the software, modify the software in any manner, delete, modify or replace any proprietary mark or any other text in the software (except as permitted per functions of the Services).

5. If the Customer is in breach of any of the obligation set out in the sections 1, 2, 3, 4, 6 and 7 of this Article, the Provider is entitled to immediately interrupt the access to and suspend the Services and terminate the Agreement with immediate effect. The Provider is entitled to immediately and without any previous notification to the Customer delete any content which is in breach of the section 3 or 4 of this Article. The evaluation of the content is at the sole discretion of Provider. The Provider is not obliged to monitor the Customer´s content.

6. The Customer is obliged
     a) to provide the appropriate privacy policy to data subjects
     b) procure the proper consents of data subjects as required by the applicable law in connection with the use of the Services.

7. Customer is responsible for providing any necessary privacy policy notices to end users and for obtaining any legally-required consents from end users concerning their use of the Services.

8. Customer is obliged to timely notify the Provider of any default in the Services and provide the necessary assistance to the Provider to cure such default.

8. Data protection

If the provision of the Services requires processing of personal data by Provider (as processor) on behalf of Customer (as controller) the processing of personal data shall be governed by the Data Processing Agreement, which forms an integral part of the Agreement.

9. Database

1. Customer retains all rights, title and interest in and to all Customer content, except for the limited license granted by Customer in the section 2 of this Article. To the extent that Customer content or its part falls within the legal definition of personal data, Data Processing Agreement shall apply to the personal data in question.
   
   
2. To the extent that Customer content or its part does not fall within the legal definition of personal data, the Customer hereby grants to the Provider non-exclusive, irrevocable, royalty-free, worldwide, sub-licensable license to store, display, distribute, share (in case of integration with third party services at the Customer´s request) and otherwise use the Customer content, as necessary to provide the Services to Customer, to use such data for testing, updating APIs for third party integration, reporting/statistical purposes if applicable. In the same extent the Provider is authorized to use Customer content for the purpose of legal litigations and in aggregated and anonymized form for business purposes (in particular for development of Services).
   
   
3. Provider will use commercially reasonable effort to safeguard the Customer content by taking the appropriate and commercially reasonable measures.
   
   
4. Notwithstanding any other provision to the contrary, the Customer is solely responsible for Customer content, for storage, preservation, backing up the Customer content, regardless of whether Customer´s use of Services includes a backup feature or functionality, and for protecting the security of Customer content, including any access to Customer content that Customer provides to its employees, customers or other third parties, and when it is in transit to and from the Provider. Customer must take and maintain necessary steps regarding the integrity, security, protection, storage and backup of Customer content. Customer is solely responsible for configuration made and/or not made within the Services, in particular its adequacy in terms of legal requirements, particular fit and chosen technology, security, protection and back up. Customer is responsible for any losses or other consequences arising from Customer's failure to secure or back up Customer content.
   
   
5. The termination and/or expiration of the Agreement will cause Services to cease functioning and result in inaccessibility of Customer content to Customer. Before termination and/or expiration of the applicable Agreement, the Provider recommends that Customer places a copy of its Customer content in a place accessible without Provider´s Services subject to the nature of the Services and the used technology. If applicable Customer might use the appropriate functionality of relevant Services. Following termination and/or expiration of the Agreement, Provider will not maintain the Customer content unless explicitly agreed otherwise.
   
   
6. Customer acknowledges that in case Provider Data (as specified in Data Processing Agreement) and other non-personal data and/or metadata generated in connection with Services, reflecting the access and use of Services, including, but not limited to, visit data, stream data, statistical or analytical data, third-party integrations data, and information or data based on or derived from any of the foregoing which falls within the legal definition of database, the Provider is in the position of maker of databases of aforementioned data. To the extent that aforementioned data or its part falls within the legal definition of personal data, Data Processing Agreement shall apply to the personal data in question. To the extent that aforementioned data or its part does not fall within the legal definition of personal data, the Provider hereby grants to the Customer a non-exclusive, revocable, non-transferable, royalty-free, non-sublicensable license to use internally aforementioned data, as necessary to receive the performance of Provider´s Services and only to the extent and for the period that aforementioned data are intentionally made accessible by Provider to Customer within the relevant Services.