Effective from: November 25, 2020.
1.1 These Terms of Service govern the access to and use of Fizure budget management software as a service provided by Fizure OÜ, a company established under laws of Estonia, with registry code 14629196, registered address Karsti 5-33, 11625 Tallinn, Estonia (“Planyard”, “Fizure”, “we”, “us” and “our”) and which is accessible through www.planyard.com (“Website”).
1.2 The term “Company” or “you” refers to a legal entity who has (i) completed the registration process on the Website and, as a part of the process, has accepted these Terms of Service on the Website; (ii) accepted these Terms of Service and has concluded the Service Agreement stipulating special terms to these Terms of Service; or (iii) in any other binding manner accepted these Terms of Service. By accepting these Terms of Service or using the Platform, you confirm that you have read and understood these terms of service and you agree to be bound by these Terms of Service, the Data Processing Agreement and any policies referenced herein, which all form a part of the Terms of Service. Acceptance of these Terms of Service shall form a legally binding agreement between the Company and Fizure for using the Platform.
1.3 For the purposes of these Terms of Service, the Service Agreement shall mean any other agreement meant to regulate the Company’s usage of the Platform and by which special terms to these Terms of Service are introduced.
1.4 In case of any discrepancies between the Terms of Service, the Service Agreement and the Data Processing Agreement, the Service Agreement shall prevail (if applicable).
1.5 Fizure and the Company are hereinafter jointly referred to as the Parties and separately as a Party, respectively.
2 USE OF THE PLATFORM
2.1 Via designated access through the Website, Fizure enables the Company and its designated employees (“End User”) and related third parties (e.g. contractors, tender participants) (“Third Parties”) to follow project costs and forecasts by providing its software as a service with functions to, among others, manage projects’ budget, requests for quotations, contracts, change orders, progress reports, and invoices (“Platform”).
2.2 In order to be able to use the Platform, and depending on its functionalities and/or the Company’s onboarding process, the Company or Fizure shall create a profile (“Company’s Account”) containing Company’s identification information and other required information, through which it can manage, create (or request Fizure to create) and close sub-accounts for its End Users. The amount of sub-accounts allowed to create to access the Platform is dependent on the volume / type of the subscription purchased by the Company. Each sub-account may have different rights per sub-account within the Platform. The Company shall be made aware of such rights and the Company is fully responsible for the actions of its End Users and any other person who accesses the Platform using the Company’s Account or sub-accounts.
2.3 The Company and its End Users can use the Platform only via logging in to the Company’s Account or respective sub-accounts. The Company is fully responsible for managing and administering the usage of the sub-accounts related to the Company’s Account. The Third Parties can use the Platform only through a designated link sent by the Company or another form of access authorised by the Company. The Company, the End Users and the Third Parties are liable for maintaining confidentiality of its username, password and any other credentials or links necessary for accessing the Platform. The Company shall immediately notify Fizure if it is suspected that the security of the Company’s Account or any sub-accounts has been compromised. Fizure is not liable in case the Company’s, the End Users’ or the Third Parties’ data falls victim of any breach due to the activity or inactivity on behalf of the Company.
2.4 The Company shall ensure that it has the equipment, devices and access to services (including a stable internet connection) to access the Platform. Fizure is not obligated to provide the Company with any hardware or software required to use the Platform (unless otherwise stipulated in the Service Agreement). The Company is entitled to issue inquiries to Fizure to familiarize itself with the technical and other requirements necessary for the successful usage of the Platform.
2.5 With respect to the information (including all text, images, documents, personal data and other content) that the Company, the End Users or the Third Parties acquires, possesses or enters, records, stores, modifies, discloses, makes available, transmits, uses, deletes or otherwise processes via the Platform, the Company represents and warrants to Fizure that the Company or, respectively, the relevant End User or Third Party, has the right to acquire, possess and process the same. The Company shall be solely liable for the properties of the said information and the acquisition, possession and processing of such information under, through, in relation to or by means of the Company’s Account.
2.6 During the term of these Terms of Service, the Company may request Fizure to perform additional services, which are not specified in these Terms of Service or the Service Agreement. Such services, compensation and other specifics shall be mutually agreed upon by the Parties in a separate agreement or as an annex to these Terms of Service or the Service Agreement.
3 LICENCE FOR THE USE OF THE PLATFORM
3.1 Subject to these of Terms of Service, Fizure grants the Company a worldwide, non-exclusive, non-transferable and non-sublicensable licence to access and use the Platform. The Platform may only be used internally by the Company (by its designated End Users) and its designated Third Parties (in a manner as necessary for utilising the Platform) for its intended purposes and only during the time the Terms of Service remain in force between the Parties.
3.2 The Company is obliged to ensure that the End Users and the Third Parties comply with the restrictions and conditions set forth in these Terms of Service. The Company acknowledges that Fizure has the right to apply separate end-user licence agreements to the End Users and the Third Parties at any time and such terms must be accepted by the End Users and the Third Parties. The Company is obliged to assist Fizure to the best of its ability in collecting the relevant acceptances. In the event of failure or disagreement with the aforementioned acceptance, Fizure has the right not to allow the End User or the Third Parties access the Platform or to restrict the access.
3.3 The Company acknowledges that all services, tools and developments made available under these Terms of Service, including the Platform, are made available on as-is basis and have not been designed to meet the Company’s individual requirements, unless otherwise stipulated in the Service Agreement.
3.4 In case the Company orders any additional works which relate to localisation (e.g. translation), personalisation (e.g. with the Company’s logos and branding) or customisation services of the Platform from Fizure, the Company grants Fizure a worldwide, non-exclusive, transferable and sublicensable (only to Fizure’s contractors for the performance of the works) licence to use any materials and input of the Company as necessary for performing the works for the duration the Terms of Service remain in force. The Company acknowledges that intellectual property rights of any ordered works remain with Fizure and Fizure has every right to, among others, use, license, sell and distribute such works for its own benefit.
4 SUPPORT AND MAINTENANCE
4.1 The Company acknowledges that Fizure is not obliged to provide any support in connection with the Platform, including user support, user training or consulting. Unless agreed in the Service Agreement and if the Company requests such support, it will be provided as additional services in accordance with Section 2.6. The Company has the right, in good faith and at its sole discretion, to provide the Company with limited and free support.
4.2 The Company shall notify Fizure of technical faults related to the Platform and Fizure shall eliminate, within a reasonable time, faults deriving from the Platform.
4.3 Fizure has the right to carry out planned and extraordinary maintenance works necessary for the provision of the Platform. Fizure shall inform the Company of planned maintenance works at least two (2) days in advance. Fizure has the right to perform extraordinary maintenance work relating to ensuring the reliability and security of the Platform without prior notice. During any maintenance work, the usability of the Platform may be limited. If feasible, Fizure shall notify the Company of the extent of any usage restrictions.
5 OPTIONAL TOOLS
5.1 Fizure may provide the Company and the End Users with access to third-party tools which we neither monitor nor have any control nor input.
5.2 The Company acknowledges that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. Fizure shall have no liability whatsoever arising from or relating to the Company’s or the End Users’ use of optional third-party tools.
5.3 Any use by the Company or the End User of optional tools offered through the Platform is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
5.4 Fizure may also, in the future, offer new services and/or features through the website (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Service.
6 THIRD-PARTY LINKS
6.1 Certain content, products and services available via the Platform may include materials from third-parties.
6.2 Third-party links on the Platform may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.
6.3 We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites.
7 INTENDED AND PROHIBITED USE OF THE PLATFORM
7.1 The Platform is intended for the use of its functionalities for managing the Company’s projects’ budget by making use of the Platform’s functionalities as described in Section 2. Using the Platform for any other purposes is not allowed.
7.2 The Company and the End Users are prohibited from using the Platform or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Platform or the Website, other websites, or the Internet; (h) to collect or track the personal information of others without lawful basis; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Platform or the Website, other websites, or the Internet.
7.3 Any content that conflicts with the provisions of Terms of Service may be removed, disabled and/or destroyed by Fizure at its sole discretion without any warning or notice.
7.4 Without excluding or limiting any of the Company’s statutory obligations, the Company shall not, and will not allow any End User to: (i) use any device, software or routine to interfere or attempt to interfere with the proper functioning of the Platform; (ii) impose an unreasonable or disproportionately heavy load on the Service or its infrastructure; (iii) copy, modify, reproduce, duplicate, sell, resell, exploit or create derivative works from, or decompile, reverse engineer or otherwise attempt to derive source code from the Platform or any other part of the Platform; (iv) remove, alter, hide or obscure any copyright notice, trademark or other proprietary rights notice embedded in, appearing on or otherwise pertaining to the Platform; (v) create or attempt to create any product or service that is substantially similar to or otherwise competes with the Platform or purports to be created, provided or approved by Fizure.
8.1 The Company is obliged to pay to Fizure the fees displayed in the registration process or in the Service Agreement. All fees are exclusive of VAT or any other taxes. VAT and taxes shall be added to the Fees in case required under applicable law.
8.2 The Company is obliged to pay for all the VAT and other taxes to be added to the fees based on the invoices issued by Fizure.
8.3 In order to access and use the Platform, the fees shall be charged in advance for each subscription period (e.g. month, quarter, year) in accordance with the chosen subscription or as specified in the Service Agreement. Fees for any other services and developments purchased in the course of the payment period shall be invoiced under a separately issued invoice.
8.4 Each invoice is issued up to thirty (30) days prior the next subscription period. Each invoice is due within five (5) calendar days as of issuing the invoice, unless otherwise specified in the invoice or the Service Agreement.
8.5 Any and all fees paid to Fizure for the use of the Platform are non-refundable, unless stipulated otherwise in the Terms of Service.
9 DUTY TO MAINTAIN CONFIDENTIALITY
9.1 The Parties are obliged throughout the validity of the Terms of Service and for five (5) calendar years after termination of the Terms of Service to maintain each other’s Confidential Information. “Confidential Information” shall be any business-related financial (including product/service information and pricing, forecasts, details of specific project), commercial (including information about the other Party’s suppliers, service providers, potential and existing customers, business partners and contractors, and related personal data) and technical information (including information on intellectual property object, copyrights, IT-systems, source code and software and related information), related to a Party, which the Party has directly or indirectly, orally or in writing or in another form, before or after concluding the Terms of Service, received from the other Party in connection with performance of the Terms of Service and which is not publicly available and which the counterparty can reasonably be presumed to be interested in maintaining the confidentiality of. Among other things, Fizure’s confidential information shall include the following data: information on the fees, the process of provision of Platform (including any manuals, support materials, the Service Agreement etc.).
9.2 The Parties undertake to ensure that:
9.2.1 they shall use Confidential Information solely in connection with performance of their obligations arising from the Terms of Service. Use of Confidential Information for any other purposes may take place only with the prior written consent of the other Party.
9.2.2 they shall keep Confidential Information confidential and not disclose it to third parties or to the public in any manner without the prior written consent of the other Party.
9.2.3 they shall adopt all reasonable precautionary measures to prevent release as a consequence of their actions or inactions, to a third party or public disclosure of Confidential Information.
9.3 A Party may disclose Confidential Information to state and local government institutions if the duty to disclose such information derives from applicable legal acts. Among other things, Fizure has the right to disclose and forward the Company’s Account, the End User’s and the Third Parties’ data to investigative and supervision authorities, including the Tax and Customs Board and the Police and Border Guard Board.
9.4 If a Party is obliged by legislation to disclose Confidential Information, it shall, where possible, undertake, within a reasonable time prior to disclosure of such information, to notify the other Party in writing of the relevant obligation of public disclosure and of the extent of the information subject to disclosure, and shall undertake to disclose the relevant information always in the minimum required amount, and if possible in a generalized form, bearing the marking “konfidentsiaalne” or “Confidential”.
9.5 For the purpose of the Agreement, “third party” does not include, nor does the prohibition on disclosure of Confidential Information apply to (a) employees of a Party and other persons related to performance of the Agreement, on condition that Confidential Information is disclosed to them only in an extent necessary for them to perform the Agreement and on condition that the Party ensures that the said persons maintain Confidential Information; and (b) Parties’ auditors, legal advisors and banks bound by the duty of confidentiality.
9.6 The Parties undertake to notify each other promptly if Confidential Information is communicated or may be communicated to a person lacking the right thereto. The provisions of this clause shall not in any manner limit the liability for breach of the Terms of Service.
10.1 The Company grants Fizure a worldwide, non-exclusive, transferable and sub-licensable (only to Fizure’s contractors for the purposes stipulated herein) licence to use the Company’s logo and the Company’s (and its End Users’) testimonials on the Platform, the Website and other marketing materials (including client e-mails, advertisements, brochures etc) for Fizure’s marketing purposes. The licence shall be valid until the expiry of the respective rights under applicable laws. The Company ensures that it has every right to grant such licence herein.
11 TERM AND TERMINATION
11.1 The obligations and liabilities of the Parties incurred prior to the termination date shall survive the termination of the Terms of Service for all purposes.
11.2 These Terms of Service shall enter into force on the date (i) the Company accepted these Terms of Service on the Website and completed the registration process; (ii) the last signature was provided by a Party to the Service Agreement stipulating special terms to these Terms of Service; or (iii) these Terms of Service were accepted in any other binding manner. The Terms of Service are effective until (i) the end of the selected subscription period; or (ii) date marked in the Service Agreement or otherwise agreed upon by the Parties; or (iii) until terminated by either Party. Term of these Terms of Service shall be automatically extended by successive one (1) year term unless either Party informs the other party of its intention not to extend the Terms of Service at least three (3) months prior to the expiration of the then current term.
11.3 The Company may terminate these Terms of Service at any time without cause by notifying Fizure three (3) months in advance and Fizure shall return fifty percent (50%) of the already paid fees in proportion to the period for which the Platform is not provided.
11.4 Fizure may terminate these Terms of Service at any time without cause by notifying the Company six (6) months in advance and shall return the already paid fees in proportion to the period for which the Platform is not provided.
11.5 Either Party has the right to terminate the Terms of Service in an extraordinary manner by immediately notifying the other Party, if the other Party has materially breached the Terms of Service. A material breach includes, but is not limited to (i) a breach that has not been terminated or remedied by the Party within 30 (thirty) calendar days of receiving a written notice from the injured Party, and (ii) a repeated breach of any obligation under the Terms of Service.
11.6 The Company’s has materially breached the Terms of Service in case of the following (but not limited to): (i) the Company conducts any act described in Section 7.2 and 7.4, (ii) the Company has not paid the invoice submitted by Fizure despite the reminder of payment and the granting of an additional term of at least 14 calendar days, (iii) in the opinion of Fizure, the actions or omissions of the Company, its End Users or Third Persons endanger the security, integrity, operation or usability of the Platform or the Website (including the usage of the aforementioned by third parties).
11.7 In case the Company has caused the extraordinary termination of the Terms of Service, Fizure shall not return any fees paid by the Company and the Company will remain liable for all amounts due up to and including the date of termination.
11.8 Termination of the Terms of Service causes automatic termination of the Service Agreement, the Data Processing Agreement, the Company’s Account and any sub-accounts granted to the End Users and access to the Platform by Third Parties. In case the Company has caused the extraordinary termination of the Terms of Service, Fizure shall not be liable for any damages or lost profit occurred due to the actions described in the previous sentence.
11.9 Upon termination of the Terms of Service, all of the licences granted under the Terms of Service shall cease and the Company shall delete all documentation related to the Platform. Fizure shall return all materials (including Confidential Information, documents and copies) related to the Company’s Account and destroy the electronic copies of such materials within thirty (30) days as of the termination of the Terms of Service, and shall not keep complete or partial copies or extracts of the materials, unless stipulated otherwise in the Service Agreement. The prior obligation does not apply to anonymised personal data, usage statistics, technical parameters and analyses based on Confidential Information.
12 LIABILITY AND LIMITATIONS
12.1 Fizure is only liable for a breach of the Terms of Service, if the breach is intentional or caused due to gross negligence. In this case, the Company has the right to request the performance of the Terms of Service (unless requiring the performance is excluded by law). To the extent permitted by laws, Fizure’s liability is limited to only direct material damages in the maximum amount of the average fee for the six (6) months’ period preceding the event giving rise to the claim. Fizure shall under no circumstance be liable for loss of revenue or for non-material damages, legal expenses or any other fees incurred by the Company.
12.2 In no case is Fizure liable for damages caused by events not caused/occurred on the Platform and not offered by Fizure or third persons not acting on behalf of Fizure, e.g. loss of data caused by hacking, DDoS attacks, damages caused under police and other authority searches or any other similar events, which may have a negative effect on the Company’s Account, the End Users’ and / or the Third Parties’ data. This includes situations where authorities lawfully confiscate servers or other equipment that may include the said data.
12.3 For avoidance of doubt, Fizure is not liable for any default caused by a third-party operator’s actions or inactions (e.g. Internet outages), provided that such third-party operators are not engaged for the purpose of providing the Platform by Fizure.
12.4 Fizure is not liable for any activities for which the Company uses the Platform or any other circumstances deriving from the Company, e.g. the Company’s instructions, inserted information, managed End Users’ sub-accounts and the Third Parties’ links. Fizure is not liable for any decisions made by the Company, its End Users or Third Parties based on the information inserted or displayed on the Platform, including any forecasts, results of tenders, sent and received offers. The Company is aware that any decisions made by it, its End Users and the Third Parties in reliance on the Platform or the said persons’ interpretations of the information is attributable to them and the Company has full responsibility in this regard. Fizure is not liable for the Company’s use of any information obtained from the Platform.
12.5 Fizure is not liable for the usage of the Platform by the Company in the volume, capacity or extent which exceeds the volume, capacity or extent agreed upon in the Service Agreement, unless such usage is agreed with Fizure at last in a form reproducible in writing.
12.6 The Company is liable for all damages caused to Fizure by the Company, its employee, visitor, management board member, End User, Third Party, or contracting party of the Company. The Company is, among others, liable for damaging the Platform and the Platform’s infrastructure and the property of third persons. The Company must inform Fizure as soon as possible if damages occur and compensate the damages.
12.7 The Company shall indemnify, defend, and hold harmless Fizure, its employees, management, and agents, at the Company’s expense, from and against all actions or claims brought against Fizure including liability, loss, damages, cost and expense, including reasonable legal fees, resulting from or in connection with the Company’s breach of any terms and conditions under the Terms of Service. This remedy of Fizure will be in addition to and not exclusive of other remedies provided by law.
12.8 In case of delay in performance of a monetary obligation arising from the Terms of Service, the entitled Party shall have the right to demand from the breaching Party a late interest of zero point zero eight per cent (0.08%) from the unpaid amount for each calendar day of delay, starting from the moment of delay until full payment of the debt.
12.9 In the event of a breach of the obligations set out in Sections 3, 7, and 9 of the Terms of Service, the Company shall pay Fizure a contractual penalty in the amount of doubled twelve (12) months’ fee paid preceding the breach within thirty (30) days of receiving a respective request from Fizure. If the damage exceeds the sum of contractual penalty, Fizure has the right to demand compensation for damage in the sum exceeding the contractual penalty.
13 GOVERNING LAW AND DISPUTES
13.1 These Terms of Service shall be governed by and construed in accordance with the laws of the Republic of Estonia. Any dispute, controversy or claim arising out of or in connection with these Terms of Service, or the breach, termination or invalidity thereof shall be resolved through amicable negotiations, upon failure of which all disputes shall be settled in Harju County Court in the Republic of Estonia.
13.2 In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.
14 ENTIRE AGREEMENT
14.1 The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
14.2 These Terms of Service, the Service Agreement and the Data Processing Agreement and any policies or operating rules posted by us on this site or in respect to the Platform constitute the entire agreement and understanding between the Company and Fizure and govern the Company’s, the End Users’ and the Third Parties’ use of the Platform, superseding any prior agreements, communications and proposals, whether oral or written, between Fizure and the Company (including, but not limited to, any prior versions of the Terms of Service).
15 CHANGES TO THE TERMS
15.1 The Service Agreement may be amended upon written agreement of both Parties unless set forth otherwise in the Service Agreement. Amendments to the Service Agreement shall enter into force upon signing the Service Agreement by the Parties’ duly authorised representatives.
15.2 Fizure has the unilateral right at its sole discretion to amend the Terms of Service and the Data Processing Agreement, by notifying the Company of the changes in a form reproducible in writing at least thirty (30) days before the amendments enter into force. In case the Company does not agree with such changes, the Company has to delete the Company’s Account or notify Fizure of its objections within the thirty (30) day period before the amendments enter into force. The Parties try to amicably seek to address the amendments and find suitable solutions. Unless such solutions are found, either Party has the right to terminate the agreement with a three (3) months prior notice to the other Party, taking into account that within the period between the issuing of the termination notice and until the end of the termination of the Agreement, the amendments giving rise to the termination shall be applied in unamended form.
16 CONTACT INFORMATION AND NOTICES
16.1 Unless deriving from the Service Agreement, all notices and other communication shall be deemed properly given if delivered in person, sent by a courier, sent by registered letter or by e-mail to the following contact details:
Fizure OÜ The Company
A Party must inform the other Party immediately of any changes in its contact person, address and e-mail by the other Party about it in the manner set out herein.