Terms of Service

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. THESE TERMS OF SERVICE GOVERN YOUR USE OF THE CARTBOSS SERVICE. BY SETTING UP AN ACCOUNT AND CLICKING [I AGREE] OR USING ANY OF THE CARTBOSS SERVICES WHICH DO NOT REQUIRE REGISTRATION, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE CARTBOSS SERVICE.

PREAMBLE AND INTROCUDTORY REMARKS

The Terms of Service (hereinafter: “Terms” or “Agreement”) published on this page apply to all websites and services that are represented by the CartBoss (unregistered) trademark and govern the setting-up, use and access of the CartBoss Service and the www.cartboss.io website, whereby all bolded terms are further defined in point 3.

These Terms represent a set of template clauses that form an agreement that may be entered into as described in point 1.1. between the following parties:

• Cart DATA ltd., Drenov Grič 171D Vrhnika, 1360 Vrhnika, Slovenia, EU, Company Registration Number: 8838399000, VAT ID Number: 49081616, the owner and supplier of the CartBoss Service and the www.cartboss.io website (hereinafter: “we”, “us”, “our” or “Provider”) who can be reached or through the messaging application on the aforementioned website,
• and you (hereinafter: “you”, “your”, “User” or “Customer”) the legal entity that shall be identified as the registered user of the Service when you, the duly authorised individual representing said entity, register an account (i.e perfrom the actions from point 1.1. in the name the company you represent) is bound to this Agreement and the CartBoss Data Processing Agreement in accordance with the terms herein. The aforementioned also relates to any and all Permitted Users, Personnel and Affiliates.

Before the application of these Terms and the CartBoss Data Processing Agreement as described in point 1.1. you are asked to dully review, understand and get acquainted with the content of both these Terms and the CartBoss Data Processing Agreement.

All enquiries regarding these Terms, the CartBoss Data Processing Agreement, pricing and payment terms as well as the Service may be directed at [email protected].

1. THE APPLICATION OF THESE TERMS AND THE CARTBOSS DATA PROCESSING AGREEMENT

1. By setting up an account and clicking [I agree] or using any of the CartBoss Services which do not require registration, you warrant:

• that you have read, understand, agree to and accepted these Terms and that you have therefore entered into a legally binding agreement with the Provider in the context of the terms and clauses herein, and
• that you are of legal age to form a binding contract with the Provider that and that you have the authority to enter into the Agreement personally or on behalf of the company you have named as the User, and to bind that company to the Agreement, and
• that you or the company you have named as the user shall not use the CartBoss Service as a natural person or a consumer and that you will exclusively access and use the CartBoss Service and the www.cartboss.io website as a legal entity conducting its professional or business activities, and
• that you have also read and agree with the CartBoss Data Processing Agreement which you have simultaneously entered into by performing the actions from point 1.1., and under which the Provider shall be deemed as the Processor and you shall be deemed as the Controller of any and all Personal data that shall be sent, transmitted or transferred to the Provider directly or through the use of the CartBoss Service or the www.cartboss.io website for the performance of the Service by you or any third party. The CartBoss Data Processing Agreement forms an integral and indispensable part of this Agreement and your use of the CartBoss Service and the www.cartboss.io website, whereby the full text of the CartBoss Data Processing Agreement can be found www.cartboss.io/data-processing-agreement.

1.2. If you do not agree to these Terms or the terms of the CartBoss Data Processing Agreement, you are not authorised to validly register an account with us as well as access or use the CartBoss Service and the www.cartboss.io website, and you must immediately stop doing so.

2. CHANGES

2.1. We may change these Terms at any time by notifying you of the change by email or by posting a notice on the www.cartboss.io website. Unless stated otherwise, any change takes effect from the date set out in the notice. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the CartBoss Service and the www.cartboss.io website from the date on which the Terms are changed, you agree to be bound by the changed Terms.

2.2. These Terms were last updated on 22.2.2021.

3. INTERPRETATION

3.1. In these Terms:

Affiliate shall mean in respect of the User and his legal entity, any other legal entity or private person

controlling the User or being controlled by the User, or acting under the direct influence or instructions of the User, whereby “Controlling” or “Controlled by” shall mean the possession, directly or indirectly, solely or jointly with another person, of power to direct or cause the direction of the management or policies and cations of a legal or natural person (whether through the ownership of securities, other shareholders, partnership or ownership interest, by establishing total or partial identity of individuals in management, by contract or otherwise).

Applicable legislation shall mean but not be limited to the European Union’s General Data Protection Regulation (2016/679) (hereinafter: “GDPR”) as well as any and all applicable EU and national laws and other statutes, rules, regulations and codes, as they may apply to the use and the consequences of use of the CartBoss Service by the User in the country where the User or his legal entity is established or operates or where the End User or other effected natural persons reside, as amended, replaced or superseded from time to time. Applicable legislation shall also mean but not be limited to any and all USA equivalents of such laws (e.g. the California Consumer Privacy Act (CCPA), the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Do-Not-Call Implementation Act, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, the Children’s Online Privacy Protection Act (COPPA), as well as relevant EU directives (e.g. the Electronic Communications Directive 2002/58/EC (the ePrivacy Directive), codes of conduct and industry standards (e.g. the Cellular Telecommunications Industry Association (CTIA) Messaging Principles), as amended, replaced or superseded from time to time.

A Party shall mean either you or the Provider whereby the term also includes that Party’s permitted assigns.

CartBoss Service (also called Service) shall mean the software program with the core functionality as described on the www.cartboss.io website, as the website is updated from time to time, whereby the software is the proprietary intellectual property of the Provider and is made available to you and your Permitted Users via the www.cartboss.io website or by way of download and integration of the CartBoss Plugin application via the WordPress App Store:

CartBoss Data Processing Agreement shall mean the legal agreement that you shall simultaneously enter into together with the Agreement from these Terms when performing the actions from point 1.1., and under which the Provider shall be deemed as the Processor and you shall be deemed as the Controller of any and all Personal data that shall be sent, transmitted or transferred to the Provider directly or through the use of the CartBoss Service or the www.cartboss.io website for the performance of the Service by you or any third party. The CartBoss Data Processing Agreement forms an integral and indispensable part of this Agreement and your use of the CartBoss Service and the www.cartboss.io website, whereby the CartBoss Data Processing Agreement is subject to the provisions of Article 28 of the GDPR and can be found www.cartboss.io/data-processing-agreement.

Consent shall mean any freely given, specific, informed and unambiguous indication of the Data subject‘s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her, as provided for by Article 4 of the GDPR or by any other relevant Applicable legislation.

Controller shall mean the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of Personal data, as provided for by Article 4 of the GDPR or by any other relevant Applicable legislation. Please note, that even in the event that you are not in fact the Controller of Personal data that you are using or wish to use in connection with the Service, you expressly warrant and represent to the Provider, that you have the necessary legal grounds and have obtained the required consent for the processing of the Data subjects Personal data in connection with your use of the Service from the actual Controller of said Personal data.

Confidential Information shall mean any information that is not public knowledge and that is obtained from the other Party in the course of, or in connection with, the provision and use of the CartBoss Service. Our Confidential Information includes all Intellectual Property owned by us (or our licensors), including the proprietary CartBoss Service, its code, texts, databases and other copyrights, while your Confidential Information includes the Data.

Data shall mean all data, content, and information (including Personal data) owned, held, used or created by you or on your behalf that is stored using, or inputted into, the CartBoss Service.

End User shall mean a natural or legal person with whom you, your affiliates or agents interact with through the the CartBoss Service or the www.cartboss.io website.

End User Messages shall mean the SMS Messages that you send to the End User through the CartBoss Service or the www.cartboss.io website as an A2P “Application-to-person” message.

Fees shall mean the applicable price per End User Message (i.e. the amount that is automatically subtracted from your accounts balance the moment you send a End User Message via the Service), as listed at the time of sending the End User Message our pricing page , as may be updated from time to time in accordance with clause 7.6.

Force Majeure shall mean an event that is beyond the reasonable control of a Party, excluding an event to the extent that it could have been avoided by a Party taking reasonable steps or reasonable care; or a lack of funds for any reason.

Including and similar words do not imply any limit.

Intellectual Property Rights shall mean all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the www.cartboss.io as well as possible trademarks, service marks, and logos contained therein, which are owned or controlled by the Provider or are licensed to us and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the Republic of Slovenia, international copyright laws, and international conventions. The above-mentioned intellectual property and copyrights on www.cartboss.io website and the CartBoss Service are provided on a “AS IS” basis for your information and personal use only. Except as expressly provided in these Terms, no part of the CartBoss Service and www.cartboss.io website may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission, which also explicitly includes any enhancement, modification or derivative work.

Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.

Provider (also we, us, our) shall mean Cart DATA ltd., Drenov Grič 171D Vrhnika, 1360 Vrhnika, Slovenia, EU, Company Registration Number: 8838399000, VAT ID Number: 49081616, the owner and supplier of the CartBoss Service and the www.cartboss.io website who can be reached or through the messaging application on the aforementioned website.

Personal data shall mean any information relating to an identified or identifiable natural person (Herein after: Data subject), whereby an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person, as provided for by Article 4 of the GDPR or by any other relevant Applicable legislation.

Processor shall mean a natural or legal person, public authority, agency or other body which processes Personal data on behalf of the Controller, as provided for by Article 4 of the GDPR or by any other relevant Applicable legislation.

Privacy policy shall mean the information to be provided to the Data subject where Personal data are collected from the Data subject, as provided for by Article 13 of the GDPR or by any other relevant Applicable legislation.

Permitted Users shall mean your personnel who are authorised to access and use the CartBoss Service or www.cartboss.io website on behalf of the User in accordance with clause 4.4.

Person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.

Personnel includes officers, employees, contractors, affiliates and agents of the User.

SMS Message shall mean a text message as defined in GSM 3GPP TS 23.038 standard (originally GSM recommendation 03.38). In the context of the Service, the message shall mean an A2P “Application-to-person” message.

Start Date shall mean the date that you set up an account/first use the CartBoss Service.

Terms of Service (also Terms/Agreement) shall mean this document.

Underlying Systems shall mean the software, IT solutions, systems and networks (including software and hardware) used to provide the CartBoss Service, including any third party solutions, systems and networks.

You (also your, User or Customer) shall mean the legal entity that shall be identified as the registered user of the Service when you, the duly authorised individual representing said entity, register an account (i.e perform the actions from point 1.1. in the name the company you represent) is bound to this Agreement and the CartBoss Data Processing Agreement in accordance with the terms herein. The aforementioned also relates to any and all Permitted Users, Personnel, or your Affiliates.

3.2. Words in the singular include the plural and vice versa.

3.3. A reference to the Applicable legislation or statute includes references to regulations, orders or notices made under or in connection with such legislation, statute or regulations and all amendments, replacements or other changes to any of them.

4. YOUR OBLIGATIONS

4.1. Compliance with Applicable Legislation.

• You hereby acknowledge and agree, that compliance with all Applicable Legislation when accessing or using the CartBoss Service or the www.cartboss.io website is the sole responsibility of the User. With respect to End User Messages you shall be solely responsible for compliance with any and all Applicable legislation that govern consumer protection, A2P “Application-to-person” messaging, data privacy and protection, intellectual property, and the sending of electronic marketing messages, online promotions, discounts, offers, gift cards, coupons, and/or gift certificates, as well as other applicable laws rules and regulations as well as various other national laws, state laws, rules, and regulations that may place restrictions on sending SMS Messages to consumers or business entities where you use the service or where End Users might be effected
• You hereby acknowledge and agree, that the Provider bares no responsibility with regards to the form, contents, processing, acceptance, repercussions, (including and without limitation the possible loss of data, profit, business interruptions or damages and legal fees that you and/or any other third party, be it a natural or legal entity, might incur as a result of your use of the Service) and the over-all legality of any and all SMS Messages that you send via the Service. You shall be solely responsible for the contents, form, information, data, links, and other aspects of the End User Messages which result from your use of the CartBoss Service or the cartboss.io website and hereby acknowledge and agree, that you are the “initiator” and/or “maker” of all SMS Messages in the context of Telephone Consumer Protection Act and the Controlling the Assault of Non-Solicited Pornography and Marketing Act.
• You hereby acknowledge and agree, that the Provider does not suggest, monitor, inhibit or in any other way influence the contents, form and overall legality of any and all SMS Messages you send via the Service to End Users, and does not warrant or guarantee the results, accuracy, legality and conformity to Applicable Legislation with regards to your use of the Service.
• You hereby acknowledge, agree and warrant under civil liability to the Provider, that during your use of the Service (i.e prior to creating and sending SMS Messages to End Users), you will always obtain Consent from any and all End Users with which you wish to interact through the Service (i.e. send an SMS Message) in compliance of Applicable Legislation and point 4.2 of these Terms.
• You also hereby acknowledge and agree, that the Provider shall not be held liable by you or any third party with regards to your use of the Service and your obligations under point 4.1. or your other applicable obligations stemming from these Terms or any Applicable Legislation.

4.2. Obtaining and respecting End User Consent at all times during your use of the CartBoss Service.

• You hereby acknowledge, agree and warrant under civil liability to the Provider, that prior to any and every use of the CartBoss Service or www.cartboss.io website by you, as well as any and every transfer/processing of End User Personal data, that:
  1. you have set-up the necessary legal means of obtaining End User Consent on your/third party website/application/landing site or any other online or offline input form, where such End Users will be asked to consensually and legally (as per all Applicable Legislation) offer their Personal data (namely their telephone number) to you as the Controller in connection with your use of the Service, and that in doing so,
  2. you have observed and implemented all necessary and mandatory precautions and steps so that the above-mentioned End User Consent has been legally obtained by you as the Controller of Personal data, so that it may be legally submitted to the Provider as the Processor when you are using the Service, as per these Terms, the CartBoss Data Processing Agreement and all Applicable Legislation, whereby in order to comply with these two paragraphs of this point 4.2a,
  3. that the End User is supplying their own telephone number, and that the End User shall notify you, if he is no longer the primary user of the provided telephone number,
  4. you have explicitly offered the necessary information that you are required to legally give to each and every Data subject with respect to any and all Applicable Legislation prior to obtaining their Personal data and sending End User Messages, which must include but is not limited to:
     1. setting-up or amending your Privacy Policy so that it includes the relevant information with regards to your data processing activities in connection with the CartBoss Service or www.cartboss.io (i.e. adding the additional processing information about the obtaining and using End User telephone numbers, adding the Provider to the list of data Processors, etc.),
     2. setting-up or amending the relevant input fields for obtaining End User telephone numbers, so that they include a direct link to your Privacy Policy and a short explanation of how and on which legal grounds you will carry out the processing in connection with the CartBoss Service or www.cartboss.io website,
     3. setting-up and concluding the necessary data processing agreements with regards to Article 28 of the GDPR or any other necessary agreements with regards to the relevant Applicable Legislation,
     4. setting-up and putting in place all other necessary technical, organisational and security measures and other relevant legal measures that are required as per the relevant Applicable Legislation,
  5. you have consulted a legal professional regarding your implementation of the above-mentioned steps and local legal requirements that govern your intended use of the Service, as well as any possible local or sector-specific risks involved,
  6. in the event that you are not in fact the Controller of Personal data that you are using or wish to use in connection with the CartBoss Service or www.cartboss.io website, you expressly warrant and represent to the Provider, that you have the necessary legal grounds and have obtained the required consent for the processing of the Personal Data of the Data Subjects in connection with your use of the Service from the actual Controller of said Personal data.
• The Provider may from time to time list “best-practices”, guides, templates as well as other information, that might aid you in meeting your compliance obligations under these Terms and the Applicable Legislation in the CartBoss Service or on the www.cartboss.io website. You hereby acknowledge and agree, that such materials are purely speculative and are in no way intended to be understood or used as legal or other material advice, and that the Provider makes no representation or warranty with regards to such materials and information, and that no attorney-client relationship is created should you choose to use or act on such materials and information. You hereby acknowledge and agree, that the Provider shall not be held liable by you or any third party with regards to your use of such materials or information.

4.3. Requirements and restrictions regarding End User Messages

• You hereby acknowledge, agree and warrant under civil liability to the Provider, that any and all End User Messages that are sent through the Service to End Users as a form an advertisement or a form of marketing, promotion or solicitation, or that could be understood as such or could be understood as sent with the intent to induce the purchase of goods or services or to solicit a charitable contribution, shall meet the following requirements:
  • that the End User Message is not being sent through the Service to a recipient, who is below the legal age for receiving such forms of communication (e.g. 13 years old /15 years old /18 years old) as the case may under the Applicable Legislation,
  • that the End User Message shall not be sent at unlawful times as per the Applicable Legislation (e.g. 9 p.m. to 8 a.m. in the End Users time zone),
  • that no End User Message shall be sent in the form, context or manner, so that it could be understood as “SPAM” (e.g. mass sending of End User Messages, sending End User Message even after the End User has opt-ed out, etc.) as per the Applicable Legislation (e.g. the Controlling the Assault of Non-Solicited Pornography and Marketing Act – “CAN-SPAM Act” in the United States of America),
  • that prior to sending such End User Message via the Service, you have set-up and included a sufficient opt-out mechanism (e.g. an “unsubscribe” link), that complies with the Applicable Legislation (e.g. expressly providing how the End User may opt-out of receiving any further messages including but not limited to including links
  • that in addition to containing a sufficient opt-out mechanism, the End User Messages also contains a notice that informs the recipient of the ability and means to avoid future solicited or unsolicited messages from you and that such notice complies with the Applicable Legislation (e.g as per Section 310.4(b)(1)(v)(A) of the FTC’s Telemarketing Sales Rule and Section 64.1200(f)(8) of the FCC’s Telephone Consumer Protection Act Rules), whereby the notice must also include, that any opt-out method not expressly provided in your opt-out provision is unreasonable,
  • that the contents of such End User Message can be clearly understood as an advertisement or form of marketing, promotion or solicitation, or understood as being sent with the intent to induce the purchase of goods or services or to solicit a charitable contribution by the End User as an average consumer or as per the Applicable Legislation,
  • that the End User Message clearly indicates you as the sender and includes all relevant information which may included but is not limited to your full company name and registration number, your business address, the country you do business from, and other necessary information that should always be given to recipients or consumers in such situations per the Applicable Legislation,
  • should the Applicable Legislation provide (e.g. with regards to End User Messages being sent to recipients in the United States of America), that a dispute resolution and/or jurisdiction provision must be added, you shall be obliged to expressly include in such provision, that the End User waives the right to any class action litigation and/or action and that the End User agrees to resolve all disputes in an amicable way (i.e. arbitration) for any Telephone Consumer Protection Act related claims, whereby you expressly warrant to the Provider and agree to include in such provisions, that the Provider shall only be a third party with regards to such class action, arbitration or action being filed against you or a third party.
• You hereby acknowledge, agree and warrant under civil liability to the Provider, that any and all End User Messages that are sent through the Service to End Users shall not in any way contain, mention, direct to, advocate, illustrate, condone, link, share, promote, market, advertise, solicit, store, allude to, include or result in:
  • these Terms being violated,
  • any Applicable Legislation or any other national or international laws, statutes, ordinances or regulations being violated (e.g. International Traffic in Arms Regulations, the Modern Slavery Act of 2015, import and export rules and directives, etc.),
  • messages promoting products or services which the Applicable Legislation bars from promoting,
  • messages, which result in unsolicited, unlawful or non-consent based contact with the End User,
  • messages or content which can be objectively identified as “SPAM”,
  • messages promoting unregistered labour or the performance of unregistered services,
  • the violation, infringement or misappropriation of Intellectual Property Rights of the Provider or the intellectual property rights of any third party,
  • the violation of privacy rights,
  • contents deemed as false advertising and unfair competition,
  • contents deemed as racist, promoting segregation, bigotry or discriminating on the basis of age, race, sex, religion, nationality, disability or sexual orientation,
  • messages that are intended to pray upon the weak, old, young, disabled or impaired,
  • hateful, libellous, threatening, harassing, defamatory contents, or contents which promote violence of any sort
  • contents relating to acts of terrorism or know terrorist groups,
  • obscene, pornographic or indecent, vulgar, violent, offensive content,
  • harmful data (e.g. malware, viruses, Trojan horses, Root-kits, Backdoors, MYSQL Injections, spyware, worms, etc.) as well as malicious or harmful code,
  • fraudulent messages or messages promoting illegal MultiLevelMarketing or other illegal schemes,
  • contents relating to gambling,
  • contents relating to the use of tobacco products or alcohol,
  • messages that are intended to illegally interact or redirect traffic to crucial infrastructure providers, life-line services, police lines, safety lines, and other utility-related telephone numbers,
  • messages which are sent by bots in order to achieve the denial of service of a third party or the Provider,
  • messages sent with the goal of illegally obtaining, scraping, stealing, harvesting or otherwise collecting information,
  • messages that intend to stalk, threaten, abuse, harass, blackmail, or cause physical or psychological damage,
  • messages sent with the apparent or concealed intent of feigning the identity of the sender or with the intent of impersonating a public authority, natural or legal person,

4.4. Should the Provider have reasonable grounds to believe that you have not complied whit any or all of the obligations listed in all of the clauses in section 4., or in situations where the Provider shall be directly or indirectly notified that this is the case by an End User, a public authority, or any third party, the Provider reserves the right to suspend you from accessing and using the Service as stated in section 12., and to seek just compensation from you, for any and all damages that the Provider or any third party seeking compensation from the Provider, has incurred.

4.5. You and your Personnel warrant, that you shall:

• use the Service in accordance with these Terms solely for:
  • your own internal business purposes; and
  • other lawful purposes which do not breach these Terms and any and all obligation from the clauses in section 4., and
• not resell or make available the Service to any third party, or otherwise commercially exploit the Service.

4.6. When accessing the Service, you and your Personnel shall:

• not impersonate another person or misrepresent authorisation to act on behalf of others or us;
• correctly identify yourself as the sender of all electronic transmissions and End User Messages;
• not attempt to undermine the security or integrity of the Underlying Systems;
• not use, or misuse, the Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Service;
• not attempt to view, access or copy any material or data other than:
  • that which you are authorised to access; and
  • to the extent necessary for you to use the Service in accordance with these Terms; and
• neither use the Service in a manner, nor transmit, input or store any Data, intellectual property or Personal Data, that breaches any third party right (including the Intellectual Property Rights of the Provider and privacy rights of End Users) or is Objectionable, incorrect or misleading.

4.7. Without limiting the clauses from section 4., no individual other than a Permitted User may access or use the Service. You may authorise any member of your personnel to be a Permitted User, in which case you must provide us with the Permitted User’s name and other information that we reasonably require in relation to the Permitted User. You must procure each Permitted User’s compliance with clauses 1, 4.2, 4.3, 4.4 and 4.5 as well as any other reasonable condition notified by us to you.

4.8. A breach of any of these Terms by your Personnel or any Permitted User is deemed to be a breach of these Terms by you.

4.9. You are responsible for procuring all licences, authorisations and Consents required for you and your Personnel to use the Service, including to use, store and input Data into, and process and distribute Data through, the Service.

5. PROVISION OF THE SERVICE

5.1. We shall use reasonable efforts to provide the Service:

• in accordance with these Terms, the CartBoss Data Processing Agreement and the laws of the Republic of Slovenia;
• exercising reasonable care, skill and diligence; and
• using suitably skilled, experienced and qualified personnel.

5.2. Our provision of the Service to you is non-exclusive. Nothing in these Terms prevents us from providing the Service to any other person.

5.3. We shall use reasonable efforts to ensure the Service is available on a 24/7 basis and during normal business hours in terms of offering User support. However, it is possible that on occasion the Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. We shall use reasonable efforts to publish on the www.cartboss.io website advance details of any unavailability.

5.4 Through the use of web services and APIs, the Service interoperates with a range of third party service features. We do not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you. To avoid doubt, if we exercise our right to cease the availability of a third party feature, you are not entitled to any refund, discount or other compensation.

6. DATA

6.1. You acknowledge that:

• we may require access to the Data to exercise our rights and perform our obligations under these Terms; and
• to the extent that this is necessary, we may authorise a member or members of our personnel to access the Data for this purpose.

6.2. You must arrange all consents and approvals that are necessary for us to access the Data as described in the clauses from section 4.

6.3. You acknowledge and agree that:

• we may:
  • use Data (excluding any Personal information) and information about your use of the Service to generate anonymised and aggregated statistical and analytical data (herein after: Analytical Data); and
  • use Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights;
  • other aspects of Data usage, sharing and processing that involve Personal Data, are regulated by the CartBoss Data Processing Agreement;
• you agree, that the title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.

6.4. While we will take standard industry measures to back up all Data stored using the Service, you agree to keep a separate back-up copy of all Data uploaded by you onto the Service.

6.5. You agree that we may store Data (excluding any Personal information) in secure servers in Frankfurt, Germany and may access that Data (excluding any Personal information) in the Republic of Slovenia for the purposes of maintenance and service upgrades from time to time.

6.6. You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights of the Provider or intellectual property rights and privacy rights of third parties) or that the Data is Objectionable, incorrect or misleading.

7. PAYMENT TERMS, TOPPING-UP YOUR ACCOUNT AND FREE TRIAL

7.1. The Service is provided on a payable basis whereby any and all use of the Service, with the explicit exemption of the “Free Trial”, warrants your payment of Fees to us.

In order to use and pay for the Service your accounts balance needs to have the sufficient amount of funds, which can be achieved by topping-up your account in accordance with point 7.6..

Each time you successfully top-up your accounts balance an invoice shall also be issued and sent to you via email.

Each time you decide to send a End User Message, the corresponding Fee (i.e. the specified price per End User Message amount) is automatically subtracted from your accounts balance the moment you send a End User Message via the Service.

7.2. All applicable Fees and pricing options for individual usage packages are listed on the pricing page on www.cartboss.io/pricing/

Any and all discounts, promotions or special offers shall also be clearly displayed and listed on www.cartboss.io/pricing/ at the time of their validity.

7.3. Prices and VAT.

All prices listed on www.cartboss.io/pricing/ are listed without VAT.

We automatically subtract the value of the applicable VAT from our Fees, so that the Fees you pay are the final payment you are required to make for using our Service, whereby this does not apply to business within European Union who do NOT provide us with their verified VAT registration number when registering their account. To avoid doubt, the prices listed on the www.cartboss.io website represent the final amount of Fees you are required to pay for using the Service.

You hereby acknowledge and agree, that you are solely responsible for any and all tax related issues with regards to your payment of Fees to us.

7.4. You shall pay the Fees:

• by way having enough funds on your accounts balance to cover the cost of the Fees (or toping-up your accounts balance in the sufficient amount prior to your use of the Service as described in clause 7.5), and
• allowing the corresponding funds (i.e. Fee times the number of End User Messages you wish to send) to be automatically subtracted from your accounts balance the moment you send a End User Message via the Service, whereby this amount is clearly displayed in the User dashboard prior to you confirming that the messages are to be sent.

If you do not agree with the abovementioned payment terms and methods, as well as the fact, that all funds that have been topped-up to you account are non-refundable as per point 12.5, you are required to cease all use of the Service and delete your account prior to any topping-up of funds to your account and any use of the Service.

7.5. Topping-up your account and receiving the Invoice.

In order to top-up your accounts balance, click “Top Up Now” on your User dashboard while registered. Select a top-up amount and currency. Enter your payment method and credit card details. Then select “Review”. You will see a pop-up showing the “Payment amount”. Select “Pay now” if you are happy with your selection or “Cancel” to select a new amount. If top-up has been successful you should see a screen with a message that starts “You have successfully credited your account in the amount of …” followed by your account details and the top-up amount. Select “Finish” to complete the transaction.

An invoice corresponding the transaction shall then be e-mailed to the email address that is tied to your User account.

If you would require an invoice to be sent in physical form, please contact us prior to you topping-up your balance at [email protected].

7.6. Increase of Fees and your right to terminate this Agreement.

We may increase the Fees by giving at least 15 days’ notice. If you do not wish to pay the increased Fees, you may terminate these Terms and your right to access and use the Service as described in section 12. If you do not terminate these Terms and your right to access and use the Service in accordance with this clause, you are deemed to have accepted the increased Fees.

8. INTELLECTUAL PROPERTY

8.1. Subject to clause 2, title to, and all Intellectual Property Rights in, the Service, the Website, and all Underlying Systems is and remains our property (and our licensors’ property). You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.

8.2. Title to, and all intellectual property rights in, the Data (as between the parties) remains your property. You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the provision of the Service and exercise of our rights and performance of our obligations in accordance with these Terms.

8.3. To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Service.

8.4. If you provide us with ideas, comments or suggestions relating to the Service or Underlying Systems (hereinafter: Feedback):

• all intellectual property rights in that Feedback, and anything created as a result of that Feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
• we may use or disclose the Feedback for any purpose.

8.5. You acknowledge that the Service may link to third party websites or feeds that are connected or relevant to the Service. Any link from the Service does not imply that we endorse, verify or recommend, or have responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.

9. CONFIDENTIALITY

9.1. Each Party must, unless it has the prior written consent of the other Party:

• keep confidential at all times the Confidential Information of the other Party;
• effect and maintain adequate security measures to safeguard the other Party’s Confidential Information from unauthorised access or use; and
• disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other Party’s Confidential Information is aware of, and complies with, clauses 1a and 9.1b.

9.2. The obligation of confidentiality in clause 1 does not apply to any disclosure or use of Confidential Information:

• for the purpose of performing a Party’s obligations, or exercising a Party’s rights, under these Terms;
• required by law (including under the rules of any stock exchange);
• which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
• which was rightfully received by a Party from a third party without restriction and without breach of any obligation of confidentiality; or
• by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 9.

10. WARRANTIES

10.1. Each Party warrants that it has full power and authority to enter into, and perform its obligations under, these Terms.

10.2. To the maximum extent permitted by law:

• our warranties are limited to those set out in these Terms, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to EUR 1.000; and
• we make no representation concerning the quality of the Service and do not promise that the Service will:
  • meet your requirements or be suitable for a particular purpose including that the use of the Service will fulfil or meet any statutory role or responsibility you may have under the Applicable Legislation
  • be secure, free of viruses or other harmful code, uninterrupted or error free.

10.3. You agree and represent that you are acquiring the Service, and accepting these Terms, for the purpose of trade. The parties agree that:

• to the maximum extent permissible by law, any and all applicable consumer protection legislation does not apply to the supply of the Service or these Terms; and
• it is fair and reasonable that the parties are bound by this clause 3.

10.4. Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms. However, our liability for any breach of that condition or warranty is limited, at our option, to:

• supplying the Service again; and/or
• paying the costs of having the Service supplied again.

11. LIABILITY

11.1. Our maximum aggregate liability under or in connection with these Terms or relating to the Service, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed an amount equal to the Fees paid by you relating to the Service in the previous Year (which in the first Year is deemed to be the total Fees paid by you from the Start Date to the date of the first event giving rise to liability). The cap in this clause 1 includes the cap set out in clause 10.2a.

11.2. Neither Party is liable to the other under or in connection with these Terms or the Service for any:

• loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
• consequential, indirect, incidental or special damage or loss of any kind.

11.3. Clauses 1 and 11.2 do not apply to limit our liability under or in connection with these Terms for:

• personal injury or death;
• fraud or wilful misconduct; or
• a breach of clause 9.

11.4. Clause 2 does not apply to limit your liability:

• to pay the Fees;
• to fulfil all of your obligations under section 4.
• under the indemnity in clause 6.6; or
• for those matters stated in clause 3a to 11.3c.

11.5. Neither Party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other Party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other Party or its Personnel.

11.6. Each Party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other Party under or in connection with these Terms or the Service.

12. TERM, TERMINATION AND SUSPENSION

12.1. Unless terminated under this clause 12, these Terms and your right to access and use the Service starts on the Start Date and continues until:

• you choose to delete your account via the User dash board or by submitting such request to [email protected], or
• it is terminated at any time by the Provider as a result of any material breach of these Terms,
• either you or the Provider becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason, whereby such Party shall be required to inform the other Party with a notice.

12.2. You may also terminate this Agreement and your right to access and use the Service in accordance with clause 7.6 (increase of Fees).

12.3. Termination of this Agreement does not affect either Party’s rights and obligations that accrued before that termination.

12.4. On termination of this Agreement, you must pay all Fees for the provision of the Service prior to that termination.

12.5. No compensation is payable by us to you as a result of termination of this Agreement for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid or any funds that have been left in your account.

12.6. Except to the extent that a Party has ongoing rights to use Confidential Information, at the other Party’s request following termination of this Agreement but subject to clause 12.8, a Party must promptly return to the other Party or destroy all Confidential Information of the other Party that is in the first Party’s possession or control, as well as any Personal Data as per the CartBoss Data Processing Agreement.

12.7. At any time prior to one month after the date of termination, you may request:

• a copy of any Data stored using the Service, provided that you pay our reasonable costs of providing that copy. On receipt of that request, we must provide a copy of the Data in a common electronic form. We do not warrant that the format of the Data will be compatible with any software; and/or
• deletion of the Data stored using the Service, in which case we must use reasonable efforts to promptly delete that Data.

To avoid doubt, we are not required to comply with clause 12.8a to the extent that you have previously requested deletion of the Data.

12.8. Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the Service and/or delete, edit or remove the relevant Data if we consider that you or any of your personnel have:

• undermined, or attempted to undermine, the security or integrity of the Service or any Underlying Systems;
• used, or attempted to use, the Service:
  • for improper purposes; or
  • in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Service;
• transmitted, inputted or stored any Data or used the Service in a way, that breaches or may breach these Terms and specifically the clauses in section 4., or any third party right (including intellectual property rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or
• otherwise materially breached these Terms.

12.9. Upon any termination or deletion of your account, you hereby acknowledge and agree to destroy any and downloaded materials that relate to the Service or the Intellectual property of the Provider that are in your possession or in the possession of your Personnel or Affiliates whether in electronic or printed format.

13. GENERAL

13.1. Neither Party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.

13.2. No person other than you and us has any right to a benefit under, or to enforce, these Terms.

13.3. For us to waive a right under these Terms, that waiver must be in writing and signed by us.

13.4. Subject to providing the Service and the Agreement you have entered into, you hereby acknowledge and agree, that we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.

13.5. If we need to contact you, we may do so by email or by posting a notice on the www.cartboss.io website. You agree that this satisfies all legal requirements in relation to written communications. You may give notice to us under or in connection with these Terms by emailing [email protected].

13.6. These Terms, and any dispute relating to these Terms, the CartBoss Data Processing Agreement or the Service, are governed by and must be interpreted in accordance with the laws of the Republic of Slovenia. Each party submits to the exclusive jurisdiction of the Courts of the Republic of Slovenia in relation to any dispute connected with these Terms or the Service.

13.7. Clauses which, by their nature, are intended to survive termination of these Terms, including clauses in section 6., 8, 9, 11, 5 to and including 12.9 and 13.6, continue in force.

13.8. If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.

13.9. Subject to clauses 1 and 7.6, any variation to these Terms may only be done by the Provider and does not require the signing of both parties.

13.10. These Terms set out everything agreed by the parties relating to the Service, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the Service that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986, and that it is fair and reasonable that the parties are bound by this clause 10.

12.11. You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.