Software Licence Agreement
PLEASE READ THESE SOFTWARE LICENCE AGREEMENT CAREFULLY BEFORE USING THIS SITE
Prokuria S.R.L. is a limited liability company duly organized under the laws of Romania, with its registered office at 8 Rasuri Street, Room 8, District 2, Bucharest, Romania, registered with the Trade Registry under no. J40/13198/2016, having sole registration code (CUI) 36609013 and EUID ROONRC.J40/13198/2016 (“Prokuria“).
This Software Licence Agreement establishes the terms that govern the relationship between Prokuria and you, as Registered User, to which you agree, and by which you will be legally bound, when using the Software.
By using the Software, you, as Registered User hereby agree to accept the terms and conditions of this Software Licence Agreement (the “Software Licence Agreement”) as a Registered User. You shall be bound by the terms and conditions of this Software Licence Agreement with respect to your access or use of this Software as Registered User and any further upgrade, modification, addition or change to this Software. If you do not accept all the terms and conditions of this Software Licence Agreement, please do not use this Software.
You, as Registered User, declare that (a) you have the authority to bind the entity to this Software Licence Agreement; (b) the address you use when registering is the principal place of business of such business entity; and (c) all other information submitted to Prokuria and its affiliates during the registration process is true, accurate, current and complete.
This Software Licence Agreement is to be interpreted in connection to and completed by the Terms and Conditions.
1 Object of the Agreement
1.1 Based on this Software Licence Agreement, Prokuria, in its capacity as author, and exclusive holder of all monetary copyrights regarding the web-based application (platform) PROKURIA APPLICATION, having the characteristics as detailed below, in the second paragraph of this Clause 1.1, non-exclusively assigns to the Registered Users, in exchange for the payment of the Fee (as defined below) the license to use the Software, as per the terms and conditions set forth herein.
The characteristics of the PROKURIA APPLICATION (the “Software”): multilingual web-based software platform having the main functionalities: the possibility to create requests (RFI, RFP, RFQ), reverse auctions, forward auctions and Dutch auctions and other procurement processes and communications with the Registered User’s vendors and suppliers or with potential vendors and suppliers. For the avoidance of any doubt, during the execution of this Software Licence Agreement, these functionalities can be improved by Prokuria and also, additional characteristics can be added to the existing Software.
1.2 According to this Software Licence Agreement, Prokuria non-exclusively assigns, for a limited period, as specified in Clause 10.1 below, and conditioned by the payment of the Fee by the Registered User to Prokuria, the right to have access to the Software and to use the Software. Thus, for the avoidance of all doubts, as a result of the assignment made by Prokuria through this Software Licence Agreement, the Registered User has no right and shall not permit any third party:
(i) to permanent or temporary, in whole or in part, copy the Software, by any means and under any form, including the case in which the copying is determined by the installation, storage, running or execution, displaying or network transmitting;
(ii) to translate, adapt, arrange and to change in any other way the Software, as well as to copy the result of such operations; and
(iii) to distribute and lend the original or the copies of the Software, under any form.
1.3 The access of the Registered User to the Software and the use of the Software together with all of its specifications and functions mentioned in this Software Licence Agreement will be made virtually, via an internet connection, at https://app.prokuria.com.
2.1 The assignment of the right to use the Software in favour of the Registered User as described in this Agreement will cover all countries and territories and the access and use of the Software can be made by the Registered User from anywhere.
3.1 A Registered User expressly confirms that he understands and agrees that the assignment of the right to use the Software as described in this Software Licence Agreement is non-exclusive. Thus, Prokuria has the right to give, at any time and for any period, similar rights to those of a Registered User to any other Registered User (client) of Prokuria, in the conditions set forth by Prokuria as it will consider appropriate.
4 Exercise of Rights
4.1 Prokuria expressly confirms through this Software Licence Agreement that the Registered Users will exercise their rights acquired through this Software Licence Agreement as it will consider fit, without being held by any obligation to use in any way the Software in a certain period.
4.2 Any right to use the Software non-exclusively assigned through this Software Licence Agreement can be exercised by the Registered Users through any and all means at their disposal.
4.3 The rights acquired by the Registered User through this Software Licence Agreement will not be extended over any other Intellectual Property Right (as defined below) of Prokuria.
5.1 In exchange for the non-exclusive assignment of the right to use the Software, for the entire period of this Software Licence Agreement, the Registered User will pay to Prokuria a fee (the “Fee”) which is detailed in at the following link https://www.prokuria.com/pricing. Dependent on the timeframe during which the access to the Software is provided to each user, the Fee will vary as per the information listed on the website. Prokuria has the right to amend the structure and sum of the Fee, amendments which will operate and will be applicable only for the future (i.e. regarding the access to the Software in the future). Thus, if the Registered User will require access to the Software for additional users, the value of the Fee will be determined based on the fee policies of Prokuria effective on the date when the Registered User requires access for additional users.
5.2 The above-mentioned Fee does not include VAT and will be paid either:
(a) directly through the Prokuria Application once the Registered User registers on the website as Registered User;
or, if the Registered User expressly requests this,
(b) through bank transfer, directly to Prokuria’s account indicated on each invoice issued to the Registered User by Prokuria. In this case, Prokuria will issue quarterly/monthly invoices, based on the number of licences. The invoices will be issued on the first day of the respective quarter/month and the payments are due within ten (10) days of an invoice’s date.
5.3 Each of the parties to this Software Licence Agreement will be exclusively liable for the fulfilment of their obligations as resulted from the conclusion of this Software Licence Agreement, set forth by the applicable legislations, including, but not limited to the fiscal legislation.
5.4 The Fee established as per the above refers exclusively to the assignment of the right to use the Software which is object of this Software Licence Agreement.
5.5 Notwithstanding the provisions of Clause 10.3 below, if under this Software Licence Agreement, the Registered User fails to make any payment to Prokuria by the payment’s respective due date, then the Registered User shall pay interest fees applied to the overdue amount of the Fee at the rate of 0.1% of the overdue Fee per each day of delay. Such interest shall accrue on a daily basis from the due date until the date of the full payment of the overdue amount.
6 Representations and Warranties
6.1 Prokuria represent and warrants to the Registered User that Prokuria is the exclusive holder of monetary copyrights that are object of this Software Licence Agreement. Also, Prokuria undertakes to provide a functionality/availability of the Software at a rate of 99% for the period of each month (Service Level Agreement) during the period of this Software Licence Agreement. When calculating the availability period, the maintenance periods, which are previously announced to the Registered User through e-mail or through the Software will not be taken into consideration. However, the maintenance periods which are not previously announced will be taken into consideration. As a result, given that the Software can only be accessed online, Prokuria takes upon a diligence obligation regarding the availability of the Software according to the percentage rate mentioned above. If the Software is not available for reasons that are attributable to Prokuria, for a period longer than the one permitted as per the rate above, the Registered User is entitled to the proportional reimbursement of the Fee paid for the period in which the Software was not available.
6.2 In consideration of the right to use the Software given through this Software Licence Agreement, Prokuria has the following obligations in relation to the Registered User:
6.2.1 To ensure the access to the technical platform (as part of the Software) necessary for the creation, personalization, administration, and handling of the requests and electronic auctions with the help of the Software;
6.2.2 Technical assistance, in Romanian or English language, which may be required by the Registered User in relation with the utilisation and/or the functioning of the Software, from Monday to Friday between 9am and 5pm, Romanian time;
6.2.3 To offer the weekly back-up facility for all data stored by the Registered User into the Software; and
6.2.4 To ensure appropriate technical and organisational measures for security of Personal Data (as defined at Clause 9 below).
6.3 Taking into consideration the nature of the Software, and also the access and utilisation procedure of the Software, Prokuria is not liable to the Registered User for the following:
6.3.1 The data stored by the Registered User into the Software, the Registered User being fully liable in relation to the way and purposes of using the Software. As per Clause 9 below, Prokuria processes personal data based on the Registered User’s instructions;
6.3.2 The way in which the Registered User configures the system in relation to the users who have access to the Software and the users’ behaviour;
6.3.3 Any operation, agreement, offer, pre-agreement and/or contract of any type entered into or which can be considered as being entered into by the Registered User with third parties, which are, in any way, related to the Registered User’s use of the Software.
6.4 The Registered User represents and warrants to Prokuria that he has acknowledged the content and functions of the Software, as mentioned in in this Software Licence Agreement, knows the way to use it, and finds it proper and useful for the development of his business.
7 Maintenance Releases
7.1 The term “Maintenance Releases” from this Software Licence Agreement means the release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, in accordance with the specifications from this Software Licence Agreement.
7.2 Prokuria will provide the Registered User with all Maintenance Releases generally made available to its customers. Prokuria warrants that no Maintenance Release will adversely affect the then existing basic facilities or functions of the Software. The Registered User shall allow access to Prokuria in order for Prokuria to install all Maintenance Releases.
8.1 The term “Confidential Information” means any information regarding the terms of this Software Licence Agreement and in relation to Prokuria or in relation to the Registered User, which is not publicly available including, but not limited to:
(a) information regarding marketing, publicity or other such activities;
(b) information regarding the result of sales, information collected from the market study reports for the products developed and/or marketed;
(c) information regarding the politics, tactics or commercial strategies;
(d) any information in respect of which the parties to this Software Licence Agreement are bound by a confidentiality duty towards third parties;
(e) technical information and know-how;
(f) management information, corporate strategy, or maturing new business opportunities; and
(g) terms of business with clients or suppliers.
8.2 The parties to this Software Licence Agreement agree not to use the Confidential Information, except for the situations when this is necessary for the completion of the obligations under this Software Licence Agreement and the parties agree to not disclose with any third parties the Confidential Information except in case of prior written approval from the other party.
8.3 The parties agree to limit the disclosure of the Confidential Information within their own organisation to those of its employees to whom such disclosure is strictly necessary for the purpose of complying with the obligations under this Software Licence Agreement and to ensure that they are bound by obligations of secrecy/confidentiality in respect of the Confidential Information and of the Personal Data and at all times act in compliance with GDPR and the obligations of this Software Licence Agreement.
8.4 The parties’ confidentiality obligation from herein will survive termination of this Software Licence Agreement for whatever reason and will remain in full force and effect for an indefinite period.
8.5 The confidentiality obligation will not apply to any Confidential Information which:
(i) was already known and at free disposal prior to its receipt from the other party;
(ii) was disclosed by a third party who in disclosing it was not itself in breach of any obligation of confidentiality towards the parties;
(iii) was in the public domain at the time of receipt or has subsequently entered into the public domain other than by reason of breach of the provisions of this clause; and
(iv) are required to be disclosed pursuant to applicable law or an order of a competent court or mandatory law enforcement / regulatory authority demand. However, this disclosure is to be made after the disclosing party will send to the other party a reasonable prior written notification regarding this disclosure so that this other party can have the possibility to contest or limit such order or to waive the relevant provisions of this Software Licence Agreement. In any case, if the disclosing party does not have the possibility to promptly notify the other party or if a protection order or other remedy is not obtained or if the other party waives the relevant provisions of this Software Licence Agreement, the disclosing party will only disclose the part of the Confidential Information which is legally solicited to be disclosed and, moreover, will use its reasonable efforts to obtain insurances that the Confidential Information requested will continue to benefit from the confidential treatment in relation to the order of the court or the mandatory law enforcement / regulatory authority demand and also while it is in the possession of the respective third party.
8.6 Each party is under the obligation to take all reasonable security measures (at least as these are used for the protection of own Confidential Information) for keeping the confidentiality of all Confidential Information.
9 Processing Personal Data
9.1 By accessing and using the Software, the Registered User will make available personal data of its employees and of its contractors/suppliers to Prokuria, as follows:
(i) for employees/representatives of the Registered User, the following data is available in the Software: first and last name, e-mail address, phone number, Registered User identification details and position of the individual in the organisation.
(ii) for existing and potential suppliers/contractors of the Registered User, the following data is available in the Software: first and last name, e-mail address, phone number, details of the company they are representing, position of the individual in the organisation; and
(iii) any other personal data which is (i) supplied, or in respect of which access is granted to Prokuria (or any approved third party) whether by the Registered User or otherwise in connection with this Software Licence Agreement or through the use of the Software, or (ii) produced or generated by or on behalf of the Registered User (or any approved third party) in connection with this Software Licence Agreement or with the use of the Software.
(together, “Personal Data”).
9.2 The parties to this Software Licence Agreement hereby agree that for the purposes of this Software Licence Agreement and for making use of the functionalities of the Software, the Registered User is the data Controller determining the purpose and means of processing (as defined in the Regulation (EU) 2016/679 on processing personal data, “GDPR”) while Prokuria shall be a data Processor (as defined by GDPR) making available and maintaining operational the technical solution necessary for achieving the purpose of processing.
9.3 Rights and obligations of the parties to this Software Licence Agreement in relation to processing Personal Data:
(i) the parties shall only process Personal Data in compliance with GDPR and with all Romanian legislation adopted for the applicability of the GDPR;
(ii) the Processor shall only process Personal Data on Controller's documented instructions, which can be sent between the parties in writing or via e-mail;
(iii) the Processor shall implement all appropriate technical and organisational measures to ensure security of Personal Data including protection against unauthorised or unlawful processing (including without limitation unauthorised or unlawful disclosure of, access to and/or alteration of Personal Data) and against accidental loss, destruction or damage of or to it. Such measures shall ensure best practice security and be compliant with GDPR at all times;
(iv) the Processor shall notify the Registered User immediately if it becomes aware of any unauthorised or unlawful processing, disclosure of, or access to, Personal Data or any accidental or unlawful destruction of, loss of, alteration to, or corruption of Personal Data (a Data Breach), breach sourced from or in relation to the use/access to the Software. The Processor, at its own cost, shall take all steps to restore, re-constitute and/or reconstruct any Personal Data which is lost, damaged, destroyed, altered or corrupted as a result of a Data Breach, and shall provide the Registered User with all reasonable assistance, as required by the GDPR, in respect of any such Data Breach.
(v) the Processor shall notify the Registered User prior to adopting a new type of processing in respect of Personal Data, and at Registered User's request the data Processor shall assist in a data protection impact assessment in respect of the new type of processing which is being proposed;
(vi) the parties agree that the Processor can transfer or disclose Personal Data to any other party for the performance of this Software Licence Agreement provided that the Processor prior notifies the Registered User (for the relevant other parties see Schedule 1). For the avoidance of doubt, the Data Processor shall enter into a written agreement with all third parties containing obligations on such third party which are equivalent to and no less onerous than those set out in this Software Licence Agreement;
(vii) the Processor shall not transfer any Personal Data to any country or territory outside the European Economic Area (EEA) or to any international organisations/contractors located outside EEA without first obtaining the express written consent of the Registered User.
(viii) the Processor shall assist the Controller with handling data subject rights requests and to "demonstrate" compliance in front of the Data Protection Authority;
(ix) The Processor shall permit the Controller, or a third-party auditor acting under the Controller's direction, to conduct, at the Controller's cost, data privacy and security audits, assessments and inspections concerning the data Processor’s data security and privacy procedures relating to the processing of Personal Data as per this Software Licence Agreement, and its compliance with this Software Licence Agreement and GDPR;
(x) the Processor shall inform immediately the Controller of complaints / enquiries etc. from regulators / individuals received directly by the Processor or by any of its contractors in relation to the processing activities relating to the Software. For the avoidance of doubt, the data Processor shall not respond to any such enquiry, complaint, notice or other communication if it involves processing Personal Data made available by the Registered User without the prior written consent of the Controller; and
(xi) The Processor shall, on termination or expiry of the Software Licence Agreement, for whatever reason, cease all use of Personal Data and shall either destroy all Personal Data or transfer all Personal Data to the Registered User upon the latter’s written choice.
10 Term, suspension and termination of the Software Licence Agreement
10.1 This Software Licence Agreement is concluded for a period of either one month or a quarter, as the Registered Users chooses when registering on the website, starting with the date the Registered User is registered on the website of Prokuria as per the provisions of this Software Licence Agreement. The Agreement shall renew each time the Registered User chooses to register, and also makes the payment of the Fee, for another month/quarter, as applicable.
10.2 This Software Licence Agreement can be terminated:
10.2.1 Through the written agreement of the parties;
10.2.2 When one of the parties breaches any of its obligations stipulated in this Software Licence Agreement, the non-breaching party shall notify, in writing, the breaching party of such failure and provide an opportunity to resolve the situation; however, if the non-compliance is not resolved within 5 (five) days following the written notice, the non-breaching party may terminate the Software Licence Agreement by sending a termination notice to the other party, without any other formalities.
10.3 Each party shall be entitled to unilaterally terminate the Software Licence Agreement at any time, with prior written notice sent to the other party, with minimum 10 (ten) days before the Software Licence Agreement is terminated. During the notice period, both parties have the obligation to accomplish the obligations taken in this Software Licence Agreement, according to the respective clauses. Notwithstanding the above, Prokuria is entitled, in case the Registered User does not comply with its payment obligation of the Fee, to suspend the access of the Registered User to the Software, by sending a notification, which will have immediate effect. In case that the Software Licence Agreement is not terminated as per the above, the access of the Registered User to the Software will be reinstated only after the full payment of the outstanding Fee together with all other penalties, as mentioned in this Software Licence Agreement. Prokuria’s right mentioned in this Clause 10.3 to suspend the access of the Registered User to the Software is enforceable when the delay of payment of the Fee is of more than 5 business days.
10.4 If this Software Licence Agreement is terminated as a result of a breach by Prokuria, the Registered User has the right and Prokuria will give the Registered User the necessary support in order to extract and recover all data and information belonging to the Registered User, as they were introduced and used in the Software. However, Prokuria will not be responsible and will not guarantee the Registered User the compatibility of the format in which the information is extracted with any other platform and/or operating system, which will be used by the Registered User.
10.5 On termination for any reason:
(a) all rights granted to the Registered User under this licence shall cease;
(b) the Registered User shall cease all activities authorised by this licence; and
(c) the Registered User shall immediately pay to Prokuria any sums due to Prokuria under this Software Licence Agreement which are due at the termination date of this Software Licence Agreement.
11 Independent contractor
11.1 When fulfilling its obligations as per this Software Licence Agreement, Prokuria will act, at any time, as independent contractor and will be considered as such. The provisions from this Software Licence Agreement will not be interpreted as considering Prokuria or any of its agents to be an employee, associate or agent of the Registered User.
12 Intellectual Property Rights
12.1 The term “Intellectual Property Rights” from this Software Licence Agreement, means: trademarks, service marks, rights in trade names, business names, logos or get-up, patents, utility models, rights in inventions, right in computer software, registered and unregistered design rights, copyrights, database rights, rights in domain names and URLs, rights to sue for passing off and in unfair competition, and all other similar rights in any part of the world (including in Know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
12.2 The Registered User acknowledges that all Intellectual Property Rights in the Software and any Maintenance Releases belong and shall belong to Prokuria, and the Registered User shall have no rights in or to the Software other than the right to use it in accordance with the terms of this Software Licence Agreement.
12.3 The Registered User has the obligation to notify Prokuria, as soon as possible after he becomes aware of any unauthorised use of the Software by any third party and shall take all necessary steps and actions required to assist Prokuria in defending the copyrights over the Software.
13.1 If any provision in this Software Licence Agreement shall be held to be illegal, invalid or unenforceable, in whole or in part, then such provision or part of it shall, to the extent that it is illegal, invalid or unenforceable, be deemed not to form part of this Software Licence Agreement and the legality, validity and enforceability of the remainder of this Software Licence Agreement shall not be affected.
14 Assignment of the Software Licence Agreement
14.1 The Registered User shall not sub-license, assign or transfer, in whole or in part, the rights and obligations acquired based on this Software Licence Agreement in relation to the Software.
14.2 Prokuria may, at any time, assign or transfer the rights and obligations from this Software Licence Agreement provided that the beneficiary of this assignment or transfer is authorised accordingly in order to continue to give to the Registered User all and any rights as they are given through this Software Licence Agreement.
15 Law and Jurisdiction
15.1 This Software Licence Agreement and any obligations arising out of or in connection with this Software Licence Agreement shall be governed by and construed in accordance with Romanian law.
15.2 Each of the parties irrevocably agrees that the courts of Bucharest are to have exclusive jurisdiction to settle any dispute, which may arise out of, or in connection with this Software Licence Agreement, and that accordingly any proceedings arising out of or in connection with this Software Licence Agreement shall be brought in such courts.
16.1 Any notices or other communication to be given under this Software Licence Agreement must be in writing and must be delivered by registered post and with a receipt confirmation or by e-mail.
16.2 The parties have had legal assistance for the understanding of this Software Licence Agreement and accept expressly any and all of the clauses of this Software Licence Agreement, including, but not limited to the clauses regarding the right to unilaterally terminate this agreement and to the Clause 15 regarding law and jurisdiction.
16.3 This Software Licence Agreement and the Terms and Conditions contain the whole agreement between the parties regarding the object of the Software Licence Agreement.
Schedule 1 - List of relevant subcontractors of the Processor at the date of this Agreement
The relevant parties, subcontractors of the Processor, to whom data can be transferred or disclosed for the performance of this Agreement:
Huxcoders SRL: Technical Support and Platform Development
Microsoft: Hosting on the Azure cloud
Sendgrid: sending and management of transactional emails