Version 1.0, effective as of September 2, 2024
IMPORTANT! READ CAREFULLY:
THIS IS A LEGAL AGREEMENT. BY CLICKING ON THE “I AGREE” (OR SIMILAR) BUTTON THAT IS PRESENTED TO YOU AT THE TIME OF YOUR FIRST USE OF THE LITECELLS SOFTWARE, SUPPORT, OR PRODUCTS, YOU BECOME A PARTY TO THIS AGREEMENT, YOU DECLARE YOU HAVE THE LEGAL CAPACITY TO ENTER INTO SUCH AGREEMENT, AND YOU CONSENT TO BE BOUND BY ALL THE TERMS AND CONDITIONS SET FORTH BELOW.
1. Introduction and Acceptance.
This Subscription Agreement (the “Agreement”) is a legal agreement between you (either an individual or an entity) (“You”, “Your” or “Customer”) and Litecells spol. s r.o., a company registered in the Commercial Register of the Prague Municipal Court, Section C, File 394042, ID No. 19930763 with its registered office at Plynární 1617/10, Prague – Holešovice, 17000, Czech Republic (“Litecells”), setting forth the terms and conditions under which Litecells will grant You the right to access and use certain Litecells software described in the accompanying or online documentation (“Software”). BEFORE YOU AGREE TO THE TERMS AND CONDITIONS, CAREFULLY READ THIS AGREEMENT. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING TO INDICATE YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT (THE “ORDER FORM”), YOU AGREE TO BE BOUND BY ALL TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE THE SOFTWARE.
2. License.
Subject to the restrictions set forth below and the payment of all applicable Fees (as defined in Section 6), Litecells grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to download the Software for installation in Customer’s salesforce.com instance (“SFDC Instance”) and to use the associated (connected) Litecells Instance connected to that SFDC Instance. This license is provided for use by the Customer in connection with their SFDC Instance and the associated Litecells Instance, for the number of users for which the Customer has paid the applicable subscription Fees. Use of the Software shall be solely for Customer’s internal business purposes. Notwithstanding the foregoing and subject to the terms of this Agreement, Customer may access and use the Software on a trial basis and free of charge for a period not to exceed thirty (30) calendar days (“Trial Period”). Customer’s access to the Software will automatically terminate following such Trial Period unless Customer has paid in full all applicable Fees for a yearly subscription in accordance with this Agreement.
3. Software Availability.
Customer acknowledges that access to and use of the Software is dependent on the availability and proper functioning of Customer’s SFDC Instance and that Litecells has no control over Customer’s SFDC Instance or the salesforce.com service. Litecells disclaims responsibility and liability for any inability to access or use the Software, or degradation of the performance of the Software, to the extent caused by issues, problems, or malfunctions of, or inaccessibility to, Customer’s SFDC Instance or other third party owned or controlled technology. Customer is solely responsible for the configuration of Customer’s SDFC Instance and all technology and services necessary to access and use the Internet and Customer’s SFDC Instance.
4. Ownership.
4.1 The rights granted hereunder do not constitute a transfer or sale of Litecells’ or its licensors’ ownership rights in or to the Software, including, without limitation: (a) the Software and the applicable documentation; (b) Litecells name, logo, domain name, Litecells product names and other trademarks; and (c) hardware, processes, algorithms, user interfaces, know-how and other trade secrets or technology (collectively, “Litecells Technology”). The Litecells Technology is protected by applicable intellectual property laws, including, but without limitation, copyright laws and international treaties. Except for the rights granted above, Litecells and its licensors retain all right, title and interest in and to Litecells Technology, including all intellectual property rights therein.
4.2 As between Litecells and Customer, Customer owns the information in Customer’s SFDC Instance and Litecells makes no claim of ownership to any information in Customer’s SFDC Instance. Customer acknowledges and agrees that the Software will access and use Customer information from Customer’s SFDC instance solely to the extent necessary for the Software to perform as intended pursuant to this Agreement. This access and use does not permit the Software, or Litecells, to access or use such Customer information outside of Customer’s SFDC instance and its associated (connected) Customer’s Litecells Instance or for any other purpose, except as expressly permitted in writing by Customer. Customer is solely responsible for the accuracy of all information in Customer’s SFDC Instance.
5. Restrictions; Responsibilities.
5.1 CUSTOMER MAY NOT (AND MAY NOT ALLOW A THIRD PARTY TO) RENT, LEASE, SUBLICENSE, SELL, CHARGE, ASSIGN, LOAN, USE FOR TIMESHARING OR SERVICE BUREAU PURPOSES OR OTHERWISE TRANSFER THE SOFTWARE OR ANY OF CUSTOMER’S RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT; PROVIDED HOWEVER, CUSTOMER MAY USE THE SOFTWARE AND PROVIDE ACCESS TO THIRD PARTIES TO USE THE SOFTWARE VIA A PORTAL OFFERED BY LITECELLS. Customer may not (and may not allow a third party to): (a) reverse engineer, decompile, disassemble or attempt to reconstruct, identify or discover any source code, underlying ideas, user interface techniques or algorithms of the Software by any means whatsoever, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (b) remove or destroy any copyright notices or other proprietary markings; (c) attempt to circumvent any use restrictions or gain unauthorized access to the Software, computer systems or networks related to the Software; (d) modify or create derivative works based on the Software; (e) copy or distribute the Software; (f) allow use of the Software by anyone other than as set forth in this Agreement and the user(s) authorized and paid for by Customer; (g) knowingly transmit through the Software unlawful, libelous, tortious, defamatory, threatening, vulgar, or obscene material or material containing viruses or other harmful code; or (h) otherwise use the Software other than as permitted in Section 2. Customer acknowledges that Litecells may utilize technological license control features that can limit Customer’s access to or use of Software to ensure Customer’s compliance with this Agreement; provided that, no such features shall interfere with or delay Customer’s use of Software in accordance with this Agreement.
5.2 Customer is responsible for all activity occurring under its user accounts and shall abide by all applicable local, state, provincial, national and foreign laws, treaties, and regulations in connection with its use of the Software, including those related to data privacy, international communications and the transmission of technical or personal data. Customer shall: (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software, and will notify Litecells promptly of any unauthorized use of any password or account or any other known security breach under applicable law; (ii) report to Litecells promptly upon discovery and use reasonable efforts to stop immediately any unauthorized copying or distribution of content that is known or suspected by Customer ; and (iii) not impersonate another Litecells user or provide false identity information to gain access to or use the Software. Customer will not attempt to or use its access to the Software to knowingly interfere with or disrupt the integrity or performance of the Software or the data contained therein.
6. Fees and Payment.
If Customer subscribes to the Software with an annual contract, Customer shall pay in advance an annual fee to access and use the Software for each user that will access or use the Software (the “Fees”). Fees are described in the Order Form. Litecells will invoice Customer annually and provide access to the Software only when the Fees have been paid. The Fees for the Initial Term shall be due on the earlier of (i) the day that Customer first accesses the Software, or (ii) the activation date set forth on Order Form. Unless otherwise specified or agreed to, all invoices for the Fees are payable upon receipt. The Fees do not include any taxes or duties of any kind, which may be imposed by any governmental entity on the transactions contemplated by this Agreement, and Customer shall be solely responsible for all such taxes imposed on Customer, except that Customer shall not be responsible for taxes based on Litecells’s income. Payment obligations are non-cancelable, and all Fees paid hereunder are non-refundable, except as specifically set forth herein. Customer may purchase additional user licenses at any time on a pro-rata basis so that all licenses will have the same expiration date. All amounts are quoted in and must be paid in EURs or US dollars. In addition to any other rights granted to Litecells herein, Litecells reserves the right to suspend Customer’s access to and use of the Software if Customer fails to pay any undisputed amount owed on or before its due date. Furthermore, all amounts that are not paid by Customer by the date required by this Agreement shall be subject to a late charge equal to the lesser of one and one-half percent (1.5%) per month and the maximum allowed by applicable law.
Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Litecells regarding future functionality or features of the Software.
7. Term.
The initial term of this Agreement shall be one (1) year from the date of first access by Customer (the “Initial Term”. This contract shall automatically renew for additional successive one (1) year terms (each an “Additional Term”) at the Litecells then-current list price, unless terminated by either party upon thirty (30) days’ notice prior to the expiration of the then current term. The Initial Term and any Additional Term shall collectively be referred to herein as the “Term”.
8. Termination.
Either party shall have the right to terminate this Agreement in the event of a breach by the other party of the Agreement, which breach has not been cured within thirty (30) days of the receipt of written notice thereof, except in the case of Customer’s failure to pay any fees when due hereunder, which must be cured within five (5) days after receipt of written notice from Litecells. Either party may terminate this Agreement if the other party becomes the subject of an involuntary petition in bankruptcy or other proceeding relating to insolvency, receivership, or liquidation, if such petition is not dismissed within sixty (60) days of filing. Upon termination of this Agreement for any reason, the rights granted to Customer hereunder will immediately terminate and Customer shall immediately discontinue any use of the Software; provided that, Customer may receive access to the Software to recover Customer’s data and information, including but not limited to information in Customer’s SFDC Instance. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Litecells prior to the effective date of termination.
9. Support and Updates.
During the Term, Litecells will provide email support to Customer for the then-current versions of the Software. Litecells will investigate all of Customer’s questions and problems promptly. Customer agrees to provide in a timely manner, any supporting information requested by Litecells to assist Litecells in the investigation and to confirm that any reported problems have been resolved. Litecells does not provide a guaranteed response time but will make a good faith effort to answer emails within forty-eight (48) hours on working days, excluding holidays.
Litecells may, in its sole discretion, from time to time, update the Software and make sure updates are available to Customer, provided Customer has paid all applicable fees then due hereunder.
10. Confidentiality.
“Confidential Information” means information disclosed by either party to the other, whether orally, electronically or in writing, which is designated as confidential or would reasonably be considered to be confidential under the circumstances by a reasonable person. Litecells’ “Confidential Information” shall include, but not be limited to, Software, documentation, technology and technical information, product designs and business processes. Customer’s “Confidential Information” shall include, but not be limited to, all information in Customer’s SFDC Instance. Each party agrees to use the other party’s Confidential Information solely to perform obligations and exercise rights under this Agreement and not to disclose, or permit to be disclosed, either directly or indirectly, Confidential Information to any third-party without the other’s prior written consent. Each party shall safeguard the Confidential Information of the other party using the same measures it uses to protect its own confidential information, but in no event less than reasonable care. Notwithstanding the foregoing, neither party bears responsibility for safeguarding information that is publicly available without breach of an obligation owed to the disclosing party hereunder, obtained from third parties not under confidentiality restrictions, independently developed or known to the recipient without breach of an obligation owed to the disclosing party, or required to be disclosed by order of court or other governmental entity. Each party agrees that in the event of a breach or threatened breach of this Agreement, the non-breaching party will have no adequate remedy at law and shall therefore be entitled to immediate injunctive and other equitable relief. In the event of a required disclosure by order of court or other governmental entity, the receiving party shall forward such order to the disclosing party, the disclosing party shall have an opportunity to object or challenge such order, and, if no challenge or objection is made or such is unsuccessful, the parties shall cooperate to limit the disclosure to only that information required to comply with the order.
11. Warranty Limitations.
11.1 ALL PRODUCTS ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE PRODUCTS IS AT YOUR OWN RISK.
11.2 LITECELLS MAKES NO WARRANTY AS TO THE PRODUCTS’ USE OR PERFORMANCE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LITECELLS (AND ITS AFFILIATES, SHAREHOLDERS, AGENTS, DIRECTORS, AND EMPLOYEES), ITS LICENSORS, SUPPLIERS (INCLUDING THE PROVIDERS OF THIRD PARTY SOFTWARE), AND RESELLERS (COLLECTIVELY HEREUNDER, “LITECELLS PARTIES”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED (INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT) WITH REGARD TO THE PRODUCTS AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES.
11.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LITECELLS PARTIES DO NOT REPRESENT OR WARRANT THAT THE PRODUCTS: (A) ARE ACCURATE, RELIABLE, OR CORRECT; (B) WILL MEET YOUR REQUIREMENTS; (C) WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, OR SECURE; (D) ARE FREE OF DEFECTS OR ERRORS AND THAT ANY, IF FOUND, WILL BE CORRECTED; AND/OR (E) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
11.4 ANY CONTENT OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PRODUCTS ARE DOWNLOADED AT YOUR OWN RISK; YOU AGREE YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY AND/OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.
11.5 YOU MAY HAVE OTHER RIGHTS, WHICH MAY NOT BE LIMITED OR EXCLUDED AND WHICH MAY VARY FROM JURISDICTION TO JURISDICTION. THIS DOCUMENT IS NOT INTENDED TO NEGATIVELY AFFECT SUCH RIGHTS.
12. Breach of Warranties.
In the event of any breach, or reasonably anticipated breach, of any of Customer’s warranties or obligations, or in the event that Customer infringes or misappropriates Litecells’ intellectual property rights, then, in addition to any other remedies available at law or in equity, Litecells will have the right to immediately, at its sole discretion, suspend Customer’s access to or use of the Software and/or terminate this Agreement, if deemed reasonably necessary in order to prevent any harm to Litecells or its business.
13. Indemnity.
13.1 Customer shall indemnify and hold Litecells and its subsidiaries, affiliates, officers, agents, and employees harmless from any claims by third parties, and any related damages, losses, or costs (including reasonable attorneys’ fees and costs), arising out of a claim or demand alleging that any data or content submitted by Customer to Litecells infringes, misappropriates, or violates any rights of a third party including any third-party intellectual property rights.
13.2 Litecells shall indemnify and hold Customer and its subsidiaries, affiliates, officers, agents and employees harmless from any claims by third parties, and any related damages, losses, or costs (including reasonable attorneys’ fees and costs), arising out of a claim or demand alleging that any data or content or part of the Software infringes, misappropriates, or violates any rights of a third party including any third-party intellectual property rights.
13.3 If any action is instituted by a third party against Customer based upon a claim that the Software, as provided, infringes a European Union patent, copyright, or trademark, then Litecells will defend such action at its own expense on behalf of Customer and will pay all damages attributable to such claim which are finally awarded against Customer or paid in settlement of such claim. Litecells may, at its option and expense and as Customer’s exclusive remedy hereunder: (a) procure for Customer the right to continue using the Software; (b) replace or modify the Software so that it is no longer infringing but continues to provide comparable functionality; or (c) terminate this Agreement and Customer’s access to the Software and refund any amounts previously paid for the Software attributable to the remainder of the then-current Term of this Agreement. Litecells will have no liability to Customer for any infringement action that arises out of a breach of the terms and conditions of this Agreement by Customer or of the use of the Software (i) if such infringement action arises due to a modification to the Software by Customer or a third party without Litecells’ prior written consent, or (ii) in combination with any other service, equipment, software, or process not provided by Litecells where the combination is the basis for the infringing activity.
13.4 Litecells’ obligations under this Section are conditioned upon the following: (i) upon becoming aware of a claim, Customer provides to Litecells prompt written notice of the claim; (ii) Customer gives to Litecells sole authority and control of the defense and/or settlement of the claim; provided, however, that Litecells shall not enter into any settlement that binds Customer in any way without the consent of the Customer, which consent shall not be unreasonably withheld, delayed, and/or conditioned; and (iii) Customer, at Litecells’s expense, provides all reasonable information and assistance requested by Litecells to handle the defense and/or settlement of the claim. Customer, at its own expense, may hire legal counsel of its choice to participate in an advisory capacity in discussions, negotiations, or proceedings of the claim.
13.5 This Section sets forth the entire obligation of Litecells and Customer’s exclusive remedy against Litecells or any of its suppliers for any infringement claim.
14. Limitation of Liability.
EXCEPT IN THE EVENT OF GROSS NEGLIGENCE OR WILFUL MISCONDUCT, UNDER NO CIRCUMSTANCES WILL EITHER PARTY, OR ITS LICENSORS’ BE LIABLE FOR LOSS OF PROFITS, BUSINESS OR DATA OR FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13, A BREACH OF THE CONFIDENTIALITY PROVISIONS HEREOF, CUSTOMER’S OBLIGATIONS UNDER SECTION 4 AND 5, OR IN THE EVENT OF GROSS NEGLIGENCE OR WILFUL MISCONDUCT, IN NO EVENT SHALL CUSTOMER’S, LITECELLS’, ITS LICENSORS’ OR SALESFORCE.COM’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER FOR THE SOFTWARE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE TIME THAT THE CAUSE OF ACTION AROSE. THE ABOVE WARRANTY DISCLAIMER AND LIMITATIONS OF LIABILITY AND DAMAGES INURE TO THE BENEFIT OF THE CUSTOMER, LITECELLS, ITS LICENSORS AND SALESFORCE.COM.
15. Audit Rights.
Litecells may, at any time, audit Customer’s use of the Software by accessing the Software through the Litecells servers to ensure compliance with the terms of this Agreement. Each Litecells employee or contractor who gains access to the Software shall be made aware and agree to be bound by the confidentiality restrictions set forth in this Agreement. Unless specifically authorized in writing in advance by Litecells, Customer may not rent, lease or timeshare the Software or provide subscription services for the Software or permit others to do so.
16. Survival.
The following provisions will survive any expiration or termination of this Agreement: Sections 4 (Ownership), 5 (Restrictions), 6 (Fees and Payment), 8 (Termination), 10 (Confidentiality), 11 (Warranty Limitations), 13 (Indemnity), 14 (Limitation of Liability), 16 (Survival), 17 (General).
17. General.
17.1 This Agreement is governed by the laws of the Czech Republic, without reference to conflict of laws principles and specifically excluding the United Nations Convention on Contracts for the International Sale of Goods. The Parties to the agreement constituted by this Agreement undertake to use best commercial efforts to amicably settle any disputes arising hereunder (“Dispute”).
17.2 Should the parties to this Agreement fail to settle a Dispute amicably, the Dispute will be excluded from the jurisdiction of general courts and the Dispute will be finally decided by the Arbitration Court attached to the Czech Chamber of Commerce and the Agricultural Chamber of the Czech Republic, by three arbitrators in accordance with the Rules of that Arbitration Court, and the language of the proceedings will be English; if you are a consumer, we both agree that any Dispute-related litigation may only be brought in, and shall be subject to the jurisdiction of, any competent court of the Czech Republic, unless provided otherwise by applicable consumer law. Consumer Disputes can also be settled out of court through the Czech Trade Inspection Authority (www.coi.cz) or the European Commission’s online platform for dispute resolution (ec.europa.eu/consumers/odr)
17.3 This Agreement may not be assigned by either party without the prior written approval of the other party (such approval not to be unreasonably withheld) except in connection with: (i) a merger, consolidation, or similar transaction involving (directly or indirectly) a party; (ii) a sale or other disposition of all substantially all of the assets of a party; or (iii) any other form of combination or reorganization involving (directly or indirectly) such party. Any purported assignment in violation of this section shall be void. No text or information set forth on any other purchase order, preprinted form, or document (other than an associated Litecells’ Order Form, quote or invoice, if applicable) shall modify the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The parties are independent contractors, and this Agreement does not create any joint venture, partnership, employment, or agency relationship between Customer and Litecells. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of that or any future right or provision unless acknowledged and agreed to by the other party in writing. This Agreement, together with any associated Litecells Order Form, quote or invoice, comprises the entire agreement between Customer and Litecells and supersedes all prior or contemporaneous negotiations, discussions, or agreements, whether written or oral, between the parties regarding the subject matter contained herein. All notices required or permitted under this Agreement must be delivered in writing by courier, email or by certified or registered mail (postage prepaid and return receipt requested) to the other party at its address set forth in this Agreement. Notice hereunder will be effective (a) upon receipt or three (3) days after being deposited in the mail as required above with the postal authority of the receiving party’s country, whichever occurs sooner, or (b) if delivered by email, upon receipt of email. Any notice to Litecells will be delivered to Litecells spol. s r.o., Plynární 1617/10, Prague – Holešovice, 17000, Czech Republic. Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any Force Majeure. For purposes of this Agreement, “Force Majeure” shall mean circumstances beyond a party’s reasonable control, including, but not limited to, acts of God, fire, lock-out, labour dispute or government measure.