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Last updated: 2018-09-03
1.1 - Dmbook Pro Limited, an Irish limited liability company, (hereinafter "Dmbook Pro Ltd", "We", "Us" or "Our") is providing the service (hereinafter "Service" or "Dmbook Pro") and the supplementary services described on www.dmbook.pro (the "Website") in accordance with these Terms of Service (hereinafter the "Terms").
1.2 - These Terms form a legal agreement between Dmbook Pro Ltd and you (hereinafter "You" or the "User"). The Service is intended for business use only and is not for consumer use. In order to use the Service You have to be at least 18 years old and have the proper authority and power to enter into a binding agreement with Us.
1.3 - By using Our Service You agree to abide by these Terms. If You don't agree with these Terms, You do not have the right to use the Service.
2.1 - Subscription of the Service requires registration and establishment of an account on the Website (hereinafter "Account"). Registration is free of charge.
2.3 - Dmbook Pro Ltd reserves all rights and sole discretion to suspend or cancel any Accounts registered with inaccurate or incomplete information or for any other reason.
2.4 - The subscription grants You a limited right to use the Service in accordance with these Terms. In accordance with section 7.2 below, all Intellectual Property Rights relating to the Service and the templates and layouts of the Accounts We offer and the amendments thereto shall belong to Dmbook Pro Ltd or a third party as case may be.
2.5 - Trials. From time to time We may offer trials of the Service for a specified period without payment (a "Trial"). Dmbook Pro Ltd reserves the right to determine Your eligibility for a Trial, and to withdraw or to modify a Trial at any time without giving prior notice and with no liability whatsoever. For some Trials, We may require You to provide Your payment details to start the Trial. At the end of such Trials, We may automatically start to charge You for the Service on the first day following the end of the Trial, on a recurring monthly basis. By providing Your payment details in conjunction with the Trial, You agree to this charge. If You do not accept this charge, You must cancel Your Subscription before the end of the Trial.
3.1 - On request, We may also provide other services to Our Users such as (but without limitation to) training and formation ("Supplementary Services") as defined more in detail on the Website. The Supplementary Services are not included in the subscription and have to be purchased by a separate order made through the Account or by e-mail.
3.2 - Only Users with a valid subscription may order the Supplementary Services.
3.3 - These Terms become applicable to the Supplementary Services only after We have accepted Your order of the same. The Supplementary Services may also be subject to additional terms and conditions that You have to accept in connection with Your order.
4.1.1 - All the prices of the Service and the Supplementary Services are determined in accordance with Our price list (the "Price List").
4.1.2 - The fee is paid in advance for the invoicing period You have chosen. You may change the invoicing period through Your Account's settings. The new invoicing period shall take effect after Your current invoicing period ends.
4.2.1 - The subscription fee of the Service is invoiced and sent to You electronically and shall be paid on the due date of the invoice at the latest.
4.2.2 - In the event the subscription fee is not paid by the due date, We may disable the access to Your Account. In such case, You are not entitled to receive any remuneration or compensation for the time the access to Your Account is disabled.
4.2.3 - If the subscription fee is not paid within 14 days as from the reminder We have sent to You of the outstanding / unpaid invoice Dmbook Pro Ltd shall have the right to cancel Your subscription and disable the access to Your Account permanently.
5.1 - The Service subscription shall be renewed automatically at the end of each invoicing period, unless You cancel the subscription 14 days before the end of the current invoicing period at the latest.
5.2 - Dmbook Pro Ltd shall have the right to cancel Your Service subscription any time and for any reason including upon any breach of these Terms by You, unless the breach is remediable and it's remedied within the time limit set at the sole discretion of Dmbook Pro Ltd.
5.3 - Any cancellation of the Service subscription will take effect the day after Your current invoicing period ends unless We cancel Your subscription due to Your breach of these Terms in which case the cancellation takes effect immediately upon Your breach or, if We have set a time limit for the remediation of the breach and the breach is not remedied within that time limit, on the day following the expiration date of the time limit.
5.4 - If Your subscription is cancelled You are not entitled to receive any refund for the subscription fees You have already paid to Us or other compensation unless We cancel Your subscription for any other reason than Your breach of these Terms.
5.5 - If Your Service subscription is cancelled You shall, upon Your written request, entitled to request and receive a copy of the data and other contents of Your Account from Our server. The data shall be delivered to You in an electronic form that is commonly in use. Dmbook Pro Ltd is not responsible for storing Your data for longer than 14 days after the cancellation of Your subscription after which all Your data will be deleted from Our servers and destroyed.
Dmbook Pro Ltd has the right to make changes to the contents, scope or price of the Service, Supplementary Services and these Terms. If You do not accept the changes in the Service or these terms You may cancel Your subscription. By continuing to use the Service after the change(s), You accept the change.
7.1 - You shall use the Service and the Supplementary Services in conformity with these Terms and Irish legislation and in a commonly acceptable manner. By agreeing to these Terms, You represent and warrant that You abide by these Terms and that Your Account is used for appropriate and legal purposes only.
7.2 - "Intellectual Property Rights" includes but not limited to patents, trademarks, service marks, design rights and database rights (whether capable of registration or otherwise), applications for any of the foregoing, copyright (including copyright in source code, object code, procedures manuals and related documentation), know-how, trade or business names, domain names and other similar rights or obligations, whether capable of registration or not in any country (including but not limited to Ireland). All Intellectual Property Rights and the title to the data and other contents of Your Account shall belong to either You or a third-party licensor. You are liable for the data and other contents of Your Account and for ensuring that the contents and data do not infringe any third-party rights or violate any Irish legislation in force at the time. Dmbook Pro Ltd assumes no liability for the contents of any web pages hosted by its servers nor for any infringements of a third party right therein.
7.3 - The distribution or publishing of any indecent, immoral, illegal or misleading or other harmful data or other content or content that is against good manners is prohibited on the web pages hosted by Our servers. Any use of the Service or distribution of such data or content that may cause damage or harm to Dmbook Pro Ltd, the Service or other Users is prohibited and shall be regarded as a breach of these Terms. We may, in Our sole discretion, determine whether Your use of the Service constitutes a breach of these Terms.
7.4 - We shall, without giving prior notice to the User, have the right to remove any User data or other contents that We consider to be against these Terms and the Account in which such data or contents is distributed. As an alternative, We may give You a warning of the misuse and ask You to remove such data or content.
7.5 - You shall be responsible for ensuring that Your user name and password to Your Account are maintained diligently and that they are not disclosed to third parties. Any use of the Service by Your user name and password shall be on Your responsibility. Dmbook Pro Ltd assumes no liability for any damages caused to You by the misuse of Your account and password.
7.6 - In the event that Your password is revealed to a third party or if You suspect misuse of Your user name or password You should inform Us about the misuse without delay. Your liability for the use of the Service by Your user name and password shall expire only after We have received Your notice of the misuse.
7.7 - You shall defend, indemnify and hold harmless Dmbook Pro Ltd against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the usage of the Service.
8.1 - In order to perform necessary installation, change or maintenance work of the Service or servers Dmbook Pro Ltd shall have the right to suspend the delivery of the Service for a reasonable period of time. We inform the Users of the planned maintenance breaks in advance on the Website as early as possible.
8.2 - Dmbook Pro Ltd shall have the right to deny the Users access to the Service without first hearing the User, if there is a suspicion that the User burdens or uses the Service in such manner as to jeopardize the delivery of the Service to other users. We shall inform You of the reasons for such denial without undue delay.
9.2 - Dmbook Pro Ltd does not warrant, endorse, guarantee or assume responsibility for any Third Party Applications, Third Party Application content or any other product or service advertised or offered by a third party or any hyperlinked website, or featured in any banner or other advertising on the Website or through the Service. You understand and agree that Dmbook Pro Ltd is not responsible or liable for any transaction between You and third-party providers of Third Party Applications or products or services advertised on the Website or through the Service. No advice or information whether oral or in writing obtained by You from the Service or the Website shall create any warranty on behalf of Dmbook Pro Ltd in this regard.
10.1 - In addition to what is stated in other provisions of these Terms, Dmbook Pro Ltd's liability for damages is limited as set out in this section 10.
10.2 - Dmbook Pro Ltd shall perform the Service and the Supplementary Services diligently and professionally. Notwithstanding the foregoing, the Service and Supplementary Services are provided "as is" without warranty of any kind, either express or implied, including without limitation, any warranty of merchantability and fitness for a particular purpose. Dmbook Pro Ltd assumes no responsibility for the accuracy or application of or errors or omissions in the Service or Supplementary Services.
10.3 - Dmbook Pro Ltd does not warrant that the Service functions uninterruptedly or error free at all times. Dmbook Pro Ltd assumes no liability for any interruptions or problems in the Service due to e.g. (but without limitation to) an internet connection break or any other temporary technical complication or any acts of God or other delays or damages that are caused by third parties, events or circumstances that are out of Dmbook Pro Ltd's control and that Dmbook Pro Ltd couldn't have foreseen and that could not reasonably been prevented or overcome (force majeure).
10.4 - In no event shall Dmbook Pro Ltd be liable for any direct, indirect, special, incidental or consequential damages arising out of the Service or Supplementary Services or inability to use the Service or Supplementary Services, even if Dmbook Pro Ltd has been advised of the likelihood of such damages occurring.
10.5 - Dmbook Pro Ltd shall not be liable for any loss, damages or costs, arising out of, but not limited to, lost profits or revenue, loss of use of the data and/or the service, loss of data or equipment, the costs of recovering any software, media, data or equipment, the cost of substitute service, media, data or equipment or claims by third parties, or other similar costs relating to the Service or the Supplementary Services.
10.6 - In no event shall Dmbook Pro Ltd be liable to You for any more than the total amounts You have paid to Dmbook Pro Ltd for the Service during the 3 months preceding Our breach or the amount paid for the Supplementary service You have ordered.
11.1 – The following definitions apply in this Section 11 (unless the context requires otherwise):
"Data Protection Legislation" means the Data Protection Acts 1988 to 2018 (as may be amended from time to time), and as of 25 May 2018, the General Data Protection Regulation (EU) 2016/679 (the "GDPR");
"Security Breach" the accidental or unlawful destruction, loss, alternation, unauthorised disclosure or, or access to the User Personal Data (defined below in Section 11.2); and
"controller", "data subject", "personal data", "processing", "processor" and "supervisory authority" shall have the meanings given to those terms in the GDPR.
11.2 - In respect of any personal data received by Dmbook Pro Ltd from or on behalf of User in connection with the performance of the Service and Supplementary Services (as applicable) under these Terms ("User Personal Data"), both Dmbook Pro Ltd and User acknowledge that the User shall be the controller and Dmbook Pro Ltd shall be a processor.
11.3 - User, as the controller or primary processor (as applicable), is solely responsible for establishing the lawful basis for the processing of User Personal Data by Dmbook Pro Ltd under these Terms and will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the User Personal Data to Dmbook Pro Ltd for the duration and purposes of these Terms and the delivery of the Service or Supplementary Services (as applicable). User, as the controller, is further solely responsible for the accuracy and quality of the User Personal Data.
11.4 - To the extent that Dmbook Pro Ltd processes User Personal Data pursuant to these Terms, Dmbook Pro Ltd shall:
11.4.1 process the User Personal Data in accordance with these Terms, this Section 11 and the instructions of the User (unless Dmbook Pro Ltd is required to process the User Personal Data by applicable European Union ("EU") or EU Member State law in which case Dmbook Pro Ltd shall notify the User of that legal requirement before such transfer or access occurs or is permitted, unless that law prohibits such notification on important grounds of public interest);
11.4.2 ensure that all personnel authorised to process the User Personal Data are party to confidentiality obligations in respect of the User Personal Data;
11.4.3 cooperate as reasonably requested by the User (at the User's sole expense):
11.4.4 notify the User if Dmbook Pro Ltd receives a request from a data subject to have access to that data subject’s personal data. Dmbook Pro Ltd shall not respond directly to such data subject unless it is instructed to do so by the User;
11.4.5 implement and maintain appropriate technical and organisational measures in place to ensure the security of the User Personal Data taking into account: (i) the state of the art; (ii) the costs of implementation; (iii) the nature, scope, context and purposes of the processing; and (iv) the inherent risk of the processing activities to data subjects;
11.4.6 notify the User without undue delay after becoming aware of any Security Breach; and
11.4.7 cooperate with the Data Protection Commission (or, to the extent reasonably required by the User, any other supervisory authority) in the performance of its tasks where required.
11.5 - The User hereby agrees to the transfer of User Personal Data processed under this Section 11 outside of the EU PROVIDED that in effecting any international transfer of User Personal Data, Dmbook Pro Ltd shall ensure that:
11.5.1 it has provided appropriate safeguards in relation to the transfer which may include Privacy Shield certification (in the case of US transferees) or EU standard contractual clauses. The User hereby appoints Dmbook Pro Ltd as its agent for the purpose of entering into any EU standard contractual clauses in the context of providing the Service or Supplementary Services (as applicable); and
11.5.2 data subjects continue to have enforceable rights and effective legal remedies following the transfer.
11.6 - The User hereby authorises Dmbook Pro Ltd to use third parties ("sub- processors") to provide the Service or Supplementary Services (as applicable) provided:
11.6.1 Dmbook Pro Ltd shall notify the User in advance of any proposed use of a sub-processor, and any replacement or addition to them and the User shall have the right to object on reasonable grounds to the use of or change to any sub-processor within 14 days of User notifying the User of the change. In the event of the User raising such an objection, Dmbook Pro Ltd may terminate part or all of the Service or Supplementary Service (as applicable) on 14 days' notice;
11.6.2 in engaging any sub-processor Dmbook Pro Ltd agrees adequate data protection arrangements that are in all material respects similar to those set out in this Section 11; and
11.6.3 Dmbook Pro Ltd shall at all times remain liable for the acts and omissions of any sub-processor as if such acts and omissions were those of Dmbook Pro Ltd.
11.6.4 For the purpose of this Section 11.6, the User consents to the use of the sub-processors listed as follows:
|Mailgun Technologies, Inc. (Mailgun)||Infrastructure to deliver emails|
|Chargebee Inc (Chargebee)||Invoicing & subscription management|
|Stripe, Inc. (Stripe)||Payment provider (Credit card)|
|GoCardless Ltd (GoCardless)||Payment provider (SEPA Direct Debit)|
11.7 – Dmbook Pro Ltd shall make available all information reasonably requested by the User to satisfy itself that Dmbook Pro Ltd is complying with its data protection obligations under this Section 11. User (and its third-party representatives) shall be permitted to audit Dmbook Pro Ltd during normal business hours PROVIDED THAT:
11.7.1 User shall provide at least 14 days' prior written notice of its intention to carry out an audit;
11.7.2 User shall ensure (and shall procure that each of its representatives) minimise the disruption to Dmbook Pro Ltd's business in the course of such an audit or inspection;
11.7.3 all expenses incurred by Dmbook Pro Ltd shall be promptly discharged by User;
11.7.4 Dmbook Pro Ltd may request that any third party representative performing an audit on behalf of User shall provide written confidentiality undertakings to the reasonable satisfaction of Dmbook Pro Ltd and Dmbook Pro Ltd shall be entitled to refuse access to any of its premises or records until such time as it has received such undertakings;
11.7.5 Dmbook Pro Ltd need not contribute or allow for an inspection or audit more than once in any calendar year, except for any additional audits or inspections which are required or requested be carried out in connection with the Data Protection Laws or a supervisory authority;
11.7.6 Dmbook Pro Ltd may object in writing to an auditor or representative mandated by the User if the auditor or representative is, in Dmbook Pro Ltd's reasonable opinion, not suitably qualified or independent, a competitor of Dmbook Pro Ltd, or otherwise manifestly unsuitable (in the event of such an objection, the User shall appoint another auditor or conduct the audit itself); and
11.7.7 nothing in this Section 11 shall entitle User to access or inspect any records which contain information relating to any other client, user or customer of Dmbook Pro Ltd and Dmbook Pro Ltd shall be entitled to restrict or prevent access to any part of its premises which it considers in its sole discretion could compromise the security of any information or data relating to such other clients, users or customers.
11.8 - Dmbook Pro Ltd will inform User if it comes to its attention that any instructions received in respect of Section 11.7 infringe the provisions of any applicable EU or EU Member State data protection law. Notwithstanding the foregoing, Dmbook Pro Ltd shall have no obligation to review the lawfulness of any instruction received from User.
11.9 - Following termination of the Service or Supplementary Services (as applicable), Dmbook Pro Ltd shall, at the written request and at the cost of the User, delete or return User Personal Data and copies thereof to the User save to the extent that Dmbook Pro Ltd is required by applicable law to retain the User Personal Data. Dmbook Pro Ltd is not responsible for storing Your data for longer than 30 days after the cancellation of Your subscription after which all Your data will be deleted from Our servers and destroyed.
These Terms become effective, when You subscribe / register with Dmbook Pro Ltd and establish the Account and accept these Terms and shall continue to apply to You until Your subscription is cancelled, except for the provision on disclaimer of warranty and limitation of liability in Section 10 herein.
12.1 - Dmbook Pro Ltd shall have the right to use the User's Account for reference purposes in its own marketing unless expressly denied in writing by the User.
12.2 - No delay by Dmbook Pro Ltd in enforcing the provisions of these Terms shall prejudice or restrict its rights nor shall any waiver of rights operate as a waiver of any subsequent breach.
12.3 - If any provision of these Terms or the application of any such provision would be invalid, void or unenforceable and/or should be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of these Terms shall remain in full force and effect to the maximum extent permissible by the applicable law. Furthermore, You acknowledge that You have not relied on any representation, undertaking or promise given by Us or implied from anything said or written in negotiations beforehand that do not form part of the subscription or these Terms.
12.4 - These Terms are made, executed and delivered in Ireland and any controversy arising hereunder or relation to these Terms shall be governed by and construed in accordance with the laws of the Republic of Ireland.
12.5 - All disputes arising in connection with these Terms, performance, breach, existence or validity shall be resolved in Dublin, and the language of the proceeding shall be English.